Ordered Published in Unredacted Form August 29, 1997.
August 29, 1997
In light of the recent indictment of former Secretary of Agriculture, Mike Espy, it is no longer necessary to maintain under seal any portion of the Court's opinion issued on June 17, 1997. It is, therefore,
The previously sealed portions are hereby unsealed. The Clerk is directed to file and issue the unredacted opinion.
Footnote 24 of the opinion issued on June 17, 1997, shall be deleted. [Editor's Note: A different footnote 24 is included as part of this published opinion.]
Theodore S. Greenberg, Deputy Independent Counsel, Alexandria, VA, and Charles M. Kagay, Chief Appellate Counsel, San Francisco, CA, argued the cause for appellant, with whom Donald C. Smaltz, Independent Counsel, Los Angeles, CA, was on the briefs.
W. Neil Eggleston, Washington, DC, argued the cause for appellee, with whom Mark I. Levy and Demitri J. Nionakis, Washington, DC, were on the brief.
Before: WALD, GINSBURG and ROGERS, Circuit Judges.
WALD, Circuit Judge:
This case involves an effort by the Office of the Independent Counsel ("OIC") to compel performance of a subpoena duces tecum issued by the grand jury investigating former Secretary of Agriculture Alphonso Michael (Mike) Espy ("Espy") and served on the Counsel to the President ("White House Counsel"). The White House provided several folders of documents to the OIC in response to the subpoena but withheld 84 documents as privileged. After ordering that the withheld documents be produced for in camera review, the district court upheld the White House's claims of privilege in full. We now vacate the district court's opinion and remand for the court to conduct a more detailed review of the documents consistent with the principles set out in this opinion.
A. Factual Background
Allegations that Espy may have improperly accepted gifts from individuals and organizations with business before the U.S. Department of Agriculture ("USDA") first surfaced publicly in March of 1994. These allegations led to the appointment of an Independent Counsel, on September 9, 1994, to investigate whether Espy had unlawfully accepted gifts and related matters and to prosecute any related violations of federal law that the Independent Counsel reasonably believed had occurred. See In re Alphonso (Mike) Espy, No. 94-2 (D.C.Cir. Spec. Div.1994); see also In re Espy, 80 F.3d 501 (C.A.D.C.1996) (per curiam). This investigation into Espy's actions is still ongoing.
On October 14, 1994, the grand jury issued the subpoena duces tecum at issue in this case. The subpoena seeks all documents on Espy and other subjects of the OIC's investigation that were "accumulated for, relating in any way to, or considered in any fashion, by those persons who were consulted and/or contributed directly or indirectly to all drafts and/or versions" of the White House Counsel's report. Within this broad category of documents relating to the White House Counsel's report, the subpoena specifically requests notes of any meetings in the White House concerning Espy and of any conversations between Espy or his counsel and White House employees. On October 20, 1994, the White House issued a press statement stating that it had received a subpoena for documents relating to the White House Counsel's report and would comply with the subpoena. On November 17, 1994, the White House produced several folders of documents for the OIC, which the White House maintained represented all responsive documents except those withheld on the basis of privilege. On December 12, 1994, at the OIC's request, the White House produced a privilege log identifying the date, author, and recipient of each document withheld as well as a general statement of the nature of each document and the basis for the privilege on which the document was withheld. This privilege log indicated that 84 documents were withheld on grounds of the deliberative process privilege, with one document additionally withheld on grounds of attorney-client privilege.
The OIC negotiated with the White House for access to the withheld documents for several months, finally filing a motion to compel production on June 7, 1995. The White House resisted the motion, arguing that the withheld documents came within both the privilege for presidential communications, recognized in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (Nixon), and the deliberative process privilege that protects the deliberations and decisionmaking process of executive officials generally. After a hearing on the motion to compel, the district court ordered the White House to produce the withheld documents for in camera review and the White House complied. Each document produced was accompanied by an ex parte cover
The OIC appeals from the district court's decision. The OIC argues that, at a minimum, the district court's order should be vacated and the matter remanded because the district court failed to provide any account of its reasoning in denying the OIC's motion to enforce the subpoena. On the merits, the OIC maintains that the district court erred in denying the motion to compel because the White House had waived its claims of privilege by releasing the final White House Counsel's report, stating it would comply with the subpoena, and unduly delaying in invoking privilege. The OIC further argues that the presidential communications privilege does not apply to the withheld documents because none of the documents was sent to or received from the President; the only document that the President received regarding the Espy investigation was the White House Counsel's final report, which was publicly released. Alternatively, the OIC claims that even if the withheld documents do enjoy the presidential privilege, the district court should have applied a less restrictive need standard than that articulated in Nixon, because this case involves a grand jury subpoena instead of a criminal trial subpoena, and the grand jury's need for the documents is sufficient to overcome the claims of executive privilege raised in this case. Although the OIC does not separately discuss the applicability of the deliberative process privilege in any detail, it maintains in passing that the need to obtain evidence that may shed light on governmental misconduct outweighs the deliberative process privilege.
The White House challenges each of these arguments. It insists that it has not waived its claims of privilege and that the withheld documents come under the presidential communications privilege because they were generated in response to the President's request for advice on whether to retain a cabinet officer, one of the President's core functions under Article II of the Constitution. The White House also notes that the deliberative privilege would apply to the documents in their entirety because the factual material in the documents is inseparable from the documents' deliberative portions. The White House contends that the same standard of need applies when the presidential privilege is raised in response to a grand jury subpoena as when a criminal trial subpoena is involved, and the OIC has failed to demonstrate a sufficient need to justify release under either the presidential privilege or the deliberative process privilege. Finally, the White House maintains that, since the district court reviewed the documents in camera, it provided sufficient explanation for its decision to deny the motion to compel even though it did not discuss the documents individually.
B. Legal Background: On Executive Privilege Generally and the Deference Due to the District Court
Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist disclosure of information the confidentiality of which they felt was crucial to fulfillment of the unique role and responsibilities of the executive branch of our government. Courts ruled early that the executive had a right to withhold documents that might reveal military or state secrets. See United States v. Reynolds, 345 U.S. 1, 6-8, 73 S.Ct. 528, 531-32, 97 L.Ed. 727 (1953); Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 436, 92 L.Ed. 568 (1948); Totten v. United States, 92 U.S. 105, 106-07, 23 L.Ed. 605 (1875). The courts have also granted the executive a right to withhold the
The most frequent form of executive privilege raised in the judicial arena is the deliberative process privilege; it allows the government to withhold documents and other materials that would reveal "advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C.1966), aff'd, 384 F.2d 979 (D.C.Cir.1967); accord NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151-53, 95 S.Ct. 1504, 1516-18, 44 L.Ed.2d 29 (1975); EPA v. Mink, 410 U.S. 73, 86-93, 93 S.Ct. 827, 835-39, 35 L.Ed.2d 119 (1973). Although this privilege is most commonly encountered in Freedom of Information Act ("FOIA") litigation, it originated as a common law privilege. See Wolfe v. Department of Health and Human Services, 839 F.2d 768, 773 (D.C.Cir.1988) (en banc); Jordan v. Department of Justice, 591 F.2d 753, 772 (D.C.Cir.1978) (en banc).
The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need.
Although executive privilege in general is no stranger to the courtroom, one form of the executive privilege is invoked only rarely and that is the privilege to preserve the confidentiality of presidential communications. Hints of a presidential communications privilege made an early appearance in Marbury v. Madison where Chief Justice Marshall suggested that for a court to intrude "into the secrets of the cabinet" would give the appearance of "intermeddl[ing] with the prerogatives of the executive." 5 U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803). Four years later, in 1807, Marshall again addressed the presidential privilege during the trial of Aaron Burr on charges of treason. President Jefferson asserted the privilege in an effort to avoid producing a letter that he had received from General Wilkinson, one of Burr's main accusers. Marshall, sitting on circuit, issued a subpoena for the letter, ruling that "[i]f [the letter] does contain any matter which it would be imprudent to disclose, which it is not the wish of the executive to disclose, such matter, if it be not immediately and essentially applicable to the point, will, of course, be suppressed." United States v. Burr, 25 F. Cas. 30, 37 (C.C.Va. 1807) (No. 14,692d). Although Burr was acquitted in his treason trial before there were further proceedings on his subpoena, he was immediately put on trial again on misdemeanor charges and as a result sought production of another letter Wilkinson had sent to Jefferson. See Paul A. Freund, The Supreme Court, 1973 Term—Foreword: On Presidential Privilege, 88 HARV. L. REV. 13, 22-31 (1974).
In neither instance, however, was Marshall forced to definitively decide whether such a presidential privilege existed and if so, in what form. In Marbury, Marshall found that the question of whether a commission as justice of the peace had been issued was a matter of legal and public record, not a confidential cabinet matter, setting the stage for the Court's pronouncement there that "[i]t is, emphatically, the province and duty of the judicial department, to say what the law is." 5 U.S. (1 Cranch) at 177.
The presidential communications privilege did not resurface in court for over a hundred and fifty years.
In this case, the White House is asserting both the deliberative process privilege and the presidential communications privilege.
As a preliminary matter we must first explain the standard under which we should review the district court's ruling that the presidential privilege applied to the withheld documents. Ordinarily, this court will review a district court's ruling on a subpoena for the production of documentary evidence only for arbitrariness or abuse of discretion. See In re Comptroller of the Currency, 967 F.2d at 633; In re Sealed Case, 877 F.2d 976, 981-82 (D.C.Cir.1989). No deference is given, however, if the ruling "rests upon a misapprehension of the relevant legal standard or is unsupported by the record." In re Subpoena on Comptroller of Currency, 967 F.2d at 633. In order to defer we also need to have some articulation of the district court's reasons for its ruling. See In re Sealed Case (Government Records), 950 F.2d 736, 738 (D.C.Cir.1991) (appeals court cannot apply deferential standard when district court did not provide reasons for denying subpoena or did not review documents in camera).
Here, the district court provided no explanation of its denial of the motion to compel. The denial took the form of a blanket ruling, with no individualized discussion of the documents. Since the district court reviewed the withheld documents in camera before denying the OIC's motion to compel, the absence of detailed findings would not, on its own, preclude us from according our usual deference to the district court's opinion. However, the court also failed to provide any explanation of its legal reasoning. It did not address the OIC's claim that the White House had waived its privileges or analyze whether the presidential communications privilege applies to documents not seen by the President. Moreover, while the court quoted Nixon's statement to the effect that the presidential privilege must yield to a specific demonstration of need, it never discussed why Nixon applies to grand jury subpoenas as well as trial subpoenas nor indicated why the OIC's demonstration of need was deficient. Because the district court not only failed to make factual findings but also failed to provide any explanation of its legal reasoning, we believe that no deference to the district court's denial of the OIC's motion to compel is appropriate.
We turn first to the OIC's contention that the White House has waived its privilege claims; if we find that waiver has occurred, we need not proceed further. In support of its waiver argument, the OIC notes that the White House publicly released the White House Counsel's report, issued a press statement indicating it would comply with the OIC's subpoena, and did not formally invoke privilege until after the OIC filed a motion to compel. Only after the briefs in this appeal were submitted did the White House inform us that it had provided Espy's counsel with a document nearly identical to one of the withheld documents, document 63, the only difference being that document 63 contained certain handwritten notations that the released version lacked. The OIC argues that the release of document 63 is further evidence of a privilege waiver.
We do not credit the OIC's arguments for waiver. The White House press statement did not explicitly declare that the White House would forego any and all claims of privilege that might apply to the documents. Instead, it described the documents sought in the subpoena and noted "[t]he subpoena requires that documents be produced on November 10, 1994. The White House will comply." The OIC agreed to extend the return date of the subpoena to November 17, and on that date the White House did in fact produce several folders of documents.
Nor did the White House have an obligation to formally invoke its privileges in advance of the motion to compel. In its response to the subpoena, the White House informed the OIC that it believed the withheld documents were privileged, thus satisfying Rule 45(c)(2)(B) and Rule 45(d)(2) of the Federal Rules of Civil Procedure, which together require that "a party objecting to a subpoena on the basis of privilege must both (1) object to the subpoena and (2) state the claim of privilege within [the stipulated period] of service." Tuite, 98 F.3d at 1416; see also In re Sealed Case, 856 F.2d 268, 272 n. 3 (D.C.Cir.1988) (where government's claim of privilege is well taken, remedy for any delay is not waiver but fees and sanctions). The motion to compel was the first event which could have forced disclosure of the documents. Cf. 3 WEINSTEIN'S FEDERAL EVIDENCE § 503.09 at 503-44 (failure to assert attorney-client privilege at a hearing at which privileged information is sought may result in waiver of the privilege). Since the OIC was clearly aware in advance of the motion to compel that the White House likely would be asserting privilege, it was not prejudiced by any alleged delay in the White House's formally invoking its privileges.
The White House's release of the White House Counsel's final report also does not constitute waiver of any privileges attaching to the documents generated in the course of producing the report. It is true that voluntary disclosure of privileged material subject to the attorney-client privilege to unnecessary third parties in the attorney-client privilege context "waives the privilege, not only as to the specific communication disclosed but often as to all other communications relating to the same subject matter." In re Sealed Case, 676 F.2d 793, 809 (D.C.Cir.1982); accord In re Sealed Case, 29 F.3d 715, 719-20 (D.C.Cir.1994); see generally 3 WEINSTEIN'S FEDERAL EVIDENCE § 511. But this all-or-nothing approach has not been adopted with regard to executive privileges generally, or to the deliberative process privilege in particular. Instead, courts have said that release of a document only waives these privileges for the document or information specifically released, and not for related materials. See Mobil Oil Corp. v. United States EPA, 879 F.2d 698, 700-02, 703 (9th Cir. 1989); Mehl v. United States EPA, 797 F.Supp. 43, 47-48 (D.D.C.1992); LARKIN, supra, § 5.05 at 5-114.7 to 5-114.14; see also Russell v. Department of the Air Force, 682 F.2d 1045, 1048-49 (D.C.Cir.1982) (although not addressing waiver directly, holding that deliberative process privilege applies to early drafts of Air Force report on use of herbicides in Vietnam despite public release of the final report). This limited approach to waiver in the executive privilege context is designed to ensure that agencies do not forego voluntarily disclosing some privileged material out of the fear that by doing so they are exposing other, more sensitive documents. See Assembly of the State of California v. United States Department of Commerce, 968 F.2d 916, 922 n. 5 (9th Cir.1992); Mobil Oil Corp., 879 F.2d at 701; Mehl, 797 F.Supp. at 47-48.
On that basis, we find that the White House's release of the final report does not waive the privilege in regard to the documents the White House generated in producing the ultimate version. However, the White House has waived its claims of privilege in regard to the specific documents that
In sum, with the exception of document 63 we find that the White House has not waived its privileges as to the withheld documents. We therefore proceed to determine the merits of the White House's claims of privilege.
III. THE PRESIDENTIAL COMMUNICATIONS PRIVILEGE
Judicial discussion of the presidential communications privilege exploded in the early to mid-1970s when the investigation into the Watergate break-in uncovered the fact that President Nixon had made, and still had in his possession, tape recordings of his conversations in the Oval Office and other locales. This revelation led the Watergate Special Prosecutor to subpoena the tapes for use in the criminal investigation of the break-in. President Nixon asserted the presidential communications privilege in response, and also in several subsequent lawsuits that sought access to the tapes and other presidential materials generated by his administration. These lawsuits, referred to generically as the Nixon cases, remain a quarter century later the leading — if not the only — decisions on the scope of the presidential communications privilege. We begin our analysis of the White House's assertion of the presidential privilege in this case by examining in detail the precedent in the Nixon cases. We will then address two specific issues regarding the scope and operation of the privilege presented by this case that are not expressly answered by the earlier decisions: how far down the line of command from the President does the presidential privilege extend, and what kind of demonstration of need must be shown to justify release to a grand jury of materials that qualify for such a privilege.
A. The Nixon Cases and the General Contours of the Presidential Communications Privilege
We first addressed President Nixon's assertion of the presidential privilege over the Watergate tapes in Sirica. Sirica involved a subpoena for nine tapes issued by the grand jury investigating the Watergate break-in. The district court had ordered President Nixon to produce the tapes for in camera review, and on appeal we affirmed that decision, stating that "application of Executive privilege depends on a weighing of the public interest protected by the privilege against the public interests that would be served by disclosure in a particular case." 487 F.2d at 716. We initially recognized a "great public interest" in preserving "the confidentiality of conversations that take place in the President's performance of his official duties" because such confidentiality is needed to protect "the effectiveness of the executive decision-making process," as a result, we said, presidential conversations "are presumptively privileged." Id. at 717. But we further held that this privilege could be overcome by a sufficient showing of need by a grand jury, and ruled that President Nixon's assertion of privilege "must fail in the face of the uniquely powerful showing made by the Special Prosecutor in this case." Id. We ordered that the tapes be turned over to the court for in camera review, however, rather than given to the grand jury directly, to ensure that only material relevant to the Watergate inquiry was released. Id. at 719-22.
President Nixon did not appeal our decision in Sirica, and thus it was not until a year later, in Nixon, that the question of whether an executive privilege of confidentiality for presidential communications existed reached the Supreme Court. Nixon concerned a subpoena issued by the Watergate Special Prosecutor for additional tapes, this
The Nixon Court explicitly limited its ruling to demands for presidential materials relevant to a criminal trial, stating "[w]e are not here concerned with the balance between the President's generalized interest in confidentiality and the need for relevant evidence in civil litigation, nor with that between the confidentiality interest and congressional demands for information." Id. at 712 n. 19, 94 S.Ct. at 3109 n. 19. It fell to the remaining Nixon cases to address the scope of the presidential communications privilege in other contexts.
The Supreme Court had its next encounter with the presidential communications privilege in Nixon v. Administrator of General Services (GSA), which concerned the operation of the privilege in the context of congressional legislation.
The Nixon cases establish the contours of the presidential communications privilege. The President can invoke the privilege when asked to produce documents or other materials that reflect presidential decisionmaking and deliberations and that the President believes should remain confidential. If the President does so, the documents become presumptively privileged.
While the presidential communications privilege and the deliberative process privilege are closely affiliated, the two privileges are distinct and have different scopes. Both are executive privileges designed to protect executive branch decisionmaking, but one applies to decisionmaking of executive officials generally, the other specifically to decisionmaking of the President. The presidential privilege is rooted in constitutional separation of powers principles and the President's unique constitutional role; the deliberative process privilege is primarily a common law privilege. See Fitzgerald, 457 U.S. at 753 & n. 35, 102 S.Ct. at 2703 & n. 35. Consequently, congressional or judicial negation of the presidential communications privilege is subject to greater scrutiny than denial of the deliberative privilege. See 26A CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE § 5673, at 37; contra Freund, supra, at 20 (commenting that question of whether presidential privilege is rooted in the common law or the Constitution is not "very meaningful," but not discussing effect different derivation has on congressional power).
In addition, unlike the deliberative process privilege, the presidential communications privilege applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones. Even though the presidential privilege is based on the need to preserve the President's access to candid advice, none of the cases suggest that it encompasses only the deliberative or advice portions of documents. Indeed, Nixon argued that the presidential privilege must be qualified to ensure full access to facts in judicial proceedings, thereby assuming that factual material comes under the privilege. 418 U.S. at 709, 94 S.Ct. at 3108; but see LARKIN, supra, § 6.01 at 6-1 (asserting, without explanation, that the presidential privilege does not "protect purely factual material"). There is no indication either that the presidential privilege is restricted to pre-decisional materials. GSA cautioned that the privilege only applies to communications made in the process of arriving at presidential decisions, but by this we believe the Court meant that the privilege was limited to materials connected to presidential decisionmaking, as opposed to other executive branch decisionmaking, and not that only pre-decisional materials were covered. 433 U.S. at 449, 97 S.Ct. at 2793. Nor would exclusion of final or post-decisional materials make sense, given the Nixon cases' concern that the President be given sufficient room to operate effectively. These materials often will be revelatory of the President's deliberations — as, for example, when the President decides to pursue a particular course of action, but asks his advisers to submit follow-up reports so that he can monitor whether this course of action is likely to
Finally, while both the deliberative process privilege and the presidential privilege are qualified privileges, the Nixon cases suggest that the presidential communications privilege is more difficult to surmount. In regard to both, courts must balance the public interests at stake in determining whether the privilege should yield in a particular case, and must specifically consider the need of the party seeking privileged evidence. But this balancing is more ad hoc in the context of the deliberative process privilege, and includes consideration of additional factors such as whether the government is a party to the litigation. Moreover, the privilege disappears altogether when there is any reason to believe government misconduct occurred. On the other hand, a party seeking to overcome the presidential privilege seemingly must always provide a focused demonstration of need, even when there are allegations of misconduct by high-level officials.
These differences between the presidential communications privilege and the deliberative privilege demonstrate that the presidential privilege affords greater protection against disclosure. Consequently, should we conclude as to any document that the presidential privilege applies but that the OIC has demonstrated a sufficient showing of need, there is no reason to examine whether the documents also come under the deliberative process privilege. A fortiori, if release is required under the presidential privilege, it will certainly be required under the deliberative process privilege. Hence, we would need to address application of the deliberative process privilege as to any document only if we determine that the withheld document is not subject to the presidential privilege.
B. How Far Down the Line Does the Presidential Communications Privilege Go?
The withheld documents in this case include materials used in the investigation and formulation of several earlier drafts of the White House Counsel's report, notes of meetings among White House advisers, and draft press briefings. It is undisputed that none of these documents was actually viewed by the President. As a result, the key issue in this case is whether any, and if so which, of these documents come under the presidential communications privilege. Does the privilege only extend to direct communications with the President, or does it extend further to include communications that involve
Most of the Nixon cases involved subpoenas for tapes of conversations in which President Nixon was a participant, and did not call upon the courts to determine whether the presidential privilege also covered communications in which the President did not directly participate.
The scope of the presidential communications privilege did arise in GSA and in Sun Oil, but was not decided in either opinion. Many of the documents which PRMPA gave over to GSA custody had never been seen by the President. After remarking that President Nixon could "legitimately assert the Presidential privilege, of course, only as to those materials whose contents fall within the scope of the privilege," the Court noted that "[o]f the estimated 42 million pages of documents and 880 tape recordings whose custody is at stake, the District Court concluded that the appellant's claim of Presidential privilege could apply at most to the 200,000 items with which the appellant was personally familiar." 433 U.S. at 449, 97 S.Ct. at 2793 (emphasis added); see also id. at 454, 97 S.Ct. at 2795-96 (only a "small fraction of the materials ... implicate Presidential confidentiality"). Since, however, the Court found that the public interests served by PRMPA were sufficient to overcome the presidential communications privilege, it never had to decide which materials came under the privilege. The three-member district court that upheld the statute had explicitly commented that it need not consider "whether the privilege that attaches to presidential communications extends to communications never directly received by the President but rather channelled in a variety of ways to him or his advisers," because it believed the statute would be constitutional "even if a large proportion of the materials falling within the Act were thought protected." Nixon v. Administrator of General Servs., 408 F.Supp. 321, 345 n. 29 (D.D.C.1976). The same situation occurred in Sun Oil, which involved a claim of presidential communications privilege over memoranda that circulated between two presidential aides. The Court of Claims never discussed whether the memoranda actually came under the privilege, but rather assumed the privilege applied and
A case that did directly touch on the question of how far down the line the presidential communications privilege extends was Association of American Physicians and Surgeons v. Clinton (AAPS). AAPS involved an effort to enjoin President Clinton's Task Force on National Health Care Reform and its subgroups from meeting unless they complied with the Federal Advisory Committee Act (FACA). In holding that FACA's exemption for advisory groups composed solely of officers or employees of the government applied to the Task Force even though it was chaired by the President's wife, Hillary Rodham Clinton, this court commented that an interpretation of FACA as covering a Task Force that reports directly to the President might well represent an unconstitutional intrusion on the presidential communications privilege. This privilege, we argued, "attaches not only to direct communications with the President, but also to discussions between his senior advisers[, who] ... must be able to hold confidential meetings to discuss advice they secretly will render to the President." 997 F.2d 898, 909 (D.C.Cir. 1993). But in AAPS this court did not actually rule on the scope of the privilege, or determine whether the public interests underlying FACA justified interference with the privilege, since it found that "a strong argument" could be made for exempting the Task Force based on the statutory text. Id. at 905.
There are acknowledgedly strong arguments in favor of holding that the presidential communications privilege applies to only those communications that directly involve the President. This approach comports with the principle that "the President's unique status under the Constitution distinguishes him from other executive officials," Fitzgerald, 457 U.S. at 750, 102 S.Ct. at 2701, particularly in separation of powers analysis. See Wetlaufer, supra, at 901-02. The Constitution after all vests the executive power not in the executive branch, but in the President; it is the President who, as "the chief constitutional officer of the Executive branch, [is] entrusted with supervisory and policy responsibilities of the utmost discretion and sensitivity." Fitzgerald, 457 U.S. at 750, 102 S.Ct. at 2701. Nixon identified the President's Article II powers and responsibilities as the constitutional basis of the presidential communications privilege. 418 U.S. at 705 & n. 16, 94 S.Ct. at 3106 & n. 16. Since the Constitution assigns these responsibilities to the President alone, arguably the privilege of confidentiality that derives from them also should be the President's alone. The uniqueness of the President has frequently led courts to recognize that the President enjoys more extensive privileges than other executive branch officers. For example, the President is absolutely immune from damages liability for official acts, but presidential aides receive only qualified immunity. Compare Fitzgerald, 457 U.S. at 749-54, 102 S.Ct. at 2701-03, with Harlow v. Fitzgerald, 457 U.S. 800, 808-13, 102 S.Ct. 2727, 2732-36, 73 L.Ed.2d 396 (1982); see also Mitchell v. Forsyth, 472 U.S. 511, 520-24, 105 S.Ct. 2806, 2812-14, 86 L.Ed.2d 411 (1985) (holding whether an executive official receive absolute immunity depends on the function the official was performing when she engaged in the actions being challenged). In Franklin the Court emphasized that the separation of powers concerns that arise when the President is personally subjected to judicial process are not implicated when a court exercises jurisdiction over other executive branch officials. 505 U.S. at 801-02, 112 S.Ct. at 2775-76. And in In re Kessler, this court recently rejected the claim that because the President is allowed to appeal a discovery order without being held in contempt the Commissioner of the Food and Drug Administration
An additional reason to restrict the presidential communications privilege to direct communications with the President is the general rule, underscored by the Supreme Court in Nixon, that privileges should be narrowly construed: "exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth." 418 U.S. at 710, 94 S.Ct. at 3108; accord Jaffee v. Redmond, ___ U.S. ___, ___, ___, 116 S.Ct. 1923, 1932, 1933, 135 L.Ed.2d 337 (1996) (Scalia, J., dissenting); Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct. 906, 912, 63 L.Ed.2d 186 (1980); In Re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 918 (8th Cir.1997). The argument for a narrow construction is particularly strong in cases like this one where the public's ability to know how its government is being conducted is at stake. In performing his constitutional duties the President may obtain advice and assistance from a broad array of executive officials — cabinet officers, employees in the Executive Office of the President, and agency staff with special expertise, as well as individuals whose sole function in the White House is to provide the President with advice and assistance. See, e.g., Meyer v. Bush, 981 F.2d 1288, 1293-94 (D.C.Cir.1993) (holding President's Task Force on Regulatory Relief was intended only to advise and assist the President and was not subject to FOIA, even though the Task Force included cabinet officers as members). Indeed, it has been publicly noted that the parts of the executive branch which "directly report to the President ha[ve] grown dramatically in the past few decades," Peter M. Shane, Legal Disagreement and Negotiation in a Government of Laws: The Case of Executive Privilege Claims Against Congress, 71 MINN. L. REV. 461, 463 (1987); see also THOMAS E. CRONIN, THE STATE OF THE PRESIDENCY 243-47 (2d ed.1980) (discussing growth of White House staff and its effects).
Extending presidential privilege to the communications of presidential advisers not directly involving the President inevitably creates the risk that a broad array of materials in many areas of the executive branch will become "sequester[ed]" from public view. Wolfe, 815 F.2d at 1533. President Nixon's attempt to invoke presidential privilege to prevent release of evidence indicating that high level executive officers engaged in illegal acts is perhaps the starkest example of potential for abuse of the privilege. And openness in government has always been thought crucial to ensuring that the people remain in control of their government. According to James Madison,
Letter from James Madison to W.T. Barry (Aug. 4, 1822), in 9 WRITINGS OF JAMES MADISON 103 (Gaillard Hunt, ed.1910); see also Soucie, 448 F.2d at 1080 (In enacting FOIA, "Congress recognized that the public cannot make intelligent decisions without [adequate] information, and that governmental institutions become unresponsive to public needs if knowledge of their activities is denied to the people and their representatives"). The very reason that presidential communications deserve special protection, namely the President's unique powers and profound responsibilities, is simultaneously the very reason why securing as much public knowledge of presidential actions as is consistent with the needs of governing is of paramount importance.
But a very powerful case can also be made for extending the presidential communications privilege beyond those materials with which the President is "personally familiar," and at the end of the day we find the arguments for a limited extension of the privilege beyond the President to his immediate advisers more convincing. Nixon does not specifically establish how far down the chain of
Presidential advisers do not explore alternatives only in conversations with the President or pull their final advice to him out of thin air — if they do, their advice is not likely to be worth much. Rather, the most valuable advisers will investigate the factual context of a problem in detail, obtain input from all others with significant expertise in the area, and perform detailed analyses of several different policy options before coming to closure on a recommendation for the Chief Executive. The President himself must make decisions relying substantially, if not entirely, on the information and analysis supplied by advisers. "Even the most sensitive issues of national security must be brought to the point of presidential decision by staff, who assemble data and views, and then winnow and shape them for the President." Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 661 (1984). In the vast majority of cases, few if any of the documents advisers generate in the course of their own preparation for rendering advice to the President, other than documents embodying their final recommendations, will ever enter the Oval Office. Yet these pre-decisional documents are usually highly revealing as to the evolution of advisers' positions and as to the different policy options considered along the way. If these materials are not protected by the presidential privilege, the President's access to candid and informed advice could well be significantly circumscribed.
The protection offered by the more general deliberative process privilege will often be inadequate to ensure that presidential advisers provide knowledgeable and candid advice, primarily because the deliberative process privilege does not extend to purely factual material. As we remarked in AAPS, preservation of the President's confidentiality requires that a "[g]roup directly reporting and advising the President must have confidentiality at each stage in the formulation of advice to him." 997 F.2d at 910. In many instances, potential exposure of the information in the possession of an adviser can be as inhibiting as exposure of the actual advice she gave to the President. Without protection for her sources of information, an adviser may be tempted to forego obtaining comprehensive briefings or initiating deep and intense probing for fear of losing deniability. Exposure of the factual portions of presidential advisers' communications also represents a substantial threat to the confidentiality of the President's own deliberations. Knowledge of factual information gathered by presidential advisers can quickly reveal the nature and substance of the issues before the President, since "[i]f you know what information
The greater ease with which the deliberative process privilege can be overcome is another reason to doubt its efficacy in ensuring candid presidential advice. In Nixon the Supreme Court recognized that some possibility of disclosure is unlikely to affect the advice the President receives, stating "we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure [that might occur if their] ... conversations will be called for in the context of a criminal prosecution." 418 U.S. at 712, 94 S.Ct. at 3109. The risk of a chill increases, however, as the possibility of disclosure rises, especially if there are situations in which the privilege may virtually disappear, such as when government misconduct is alleged. Nor does it suffice to respond that the public interest in honest and accountable government is stymied if presidential advisers are allowed even a qualified privilege when government misconduct is charged. The President's supervisory control over executive branch officials is an important means of ensuring that abuse of office is uncovered and swiftly addressed, and the President needs access to candid and informed advice if he is to exercise this control effectively. In this regard it is worth emphasizing that the presidential communications privilege is, at all times, a qualified one, so that an expansion to cover communications of presidential advisers which do not directly involve the President does not mean that these communications will become permanently shielded; they will remain available upon a sufficient showing of need.
Of course, the risk that release of factual information may reveal a policymaking official's area of focus is true at all levels of government. But the President does not represent simply one level of executive branch, but rather the ultimate level of decisionmaking in the executive branch, and intrusion into presidential deliberations is therefore more serious. In ruling on whether General Wilkinson's letter should be released Chief Justice Marshall remarked that "[i]n no case of this kind would a court be required to proceed against the president as against an ordinary individual." Burr, 25 Fed. Cas., at 192. Neither should a court be required to proceed against the President as against any other executive branch official. See Clinton v. Jones, ___ U.S. at ___ n. 39, 117 S.Ct. at 1649 n. 39 (quoting Burr and noting "[s]pecial caution is appropriate if the materials or testimony sought by the court relate to a President's official activities"). Indeed, if the President's immediate advisers were only covered by the deliberative process privilege, courts might feel compelled to extend the deliberative privilege to cover factual material in order to ensure that the President had sufficient freedom from public review to operate effectively. This result might make the deliberative process privilege better able to meet the particular needs of presidential decisionmaking, but it would hardly advance the goal of open government since it would mean that more factual information was shielded at all levels of the executive branch.
The ultimate question is whether restricting the presidential communications privilege to communications that directly involve the President will "impede the President's ability to perform his constitutional duty." Morrison v. Olson, 487 U.S. 654, 691, 108 S.Ct. 2597, 2619, 101 L.Ed.2d 569 (1988); see also Loving v. United States, ___ U.S. ___, ___, 116 S.Ct. 1737, 1743, 135 L.Ed.2d 36 (1996) ("[e]ven when a branch does not arrogate power to itself, ... the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties"). If it does, the constitutional separation of powers will be violated. In Nixon the Court recognized that the President's access to honest and informed advice and his ability to explore possible policy options privately are critical elements in presidential decisionmaking. Given the President's dependence on presidential advisers and the inability of the deliberative process privilege to provide advisers with adequate freedom from the public spotlight, we conclude that limiting the privilege in this fashion would indeed impede effective functioning of the presidency.
We believe therefore that the public interest is best served by holding that
Of course, the privilege only applies to communications that these advisers and their staff author or solicit and receive in the course of performing their function of advising the President on official government matters. This restriction is particularly important in regard to those officials who exercise substantial independent authority or perform other functions in addition to advising the President, and thus are subject to FOIA and other open government statutes. See Armstrong v. Executive Office of the President, 90 F.3d 553, 558 (D.C.Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1842, 137 L.Ed.2d 1046 (1997). The presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President. If the government seeks to assert the presidential communications privilege in regard to particular communications of these "dual hat" presidential advisers, the government bears the burden of proving that the communications occurred in conjunction with the process of advising the President.
In this case the documents in question were generated in the course of advising the President in the exercise of his appointment and removal power, a quintessential and nondelegable Presidential power.
Finally, we underscore our opinion should not be read as in any way affecting the scope of the privilege in the congressional-executive context, the arena where conflict over the privilege of confidentiality arises most frequently. The President's ability to withhold information from Congress implicates different constitutional considerations than the President's ability to withhold evidence in judicial proceedings. See, e.g., ROZELL, supra, at 142-57; Norman Dorsen & John H.F. Shattuck, Executive Privilege, the Congress and the Courts, 35 OHIO ST. L.J. 1, 16-22, 24-33 (1974). Our determination of how far down into the executive branch the presidential communications privilege goes is limited to the context before us, namely where information generated by close presidential advisers is sought for use in a judicial proceeding, and we take no position on how the institutional needs of Congress and the President should be balanced.
C. Standard of Need
The question of whether the presidential communications privilege applies to communications that do not involve the President is only the first issue we must resolve before turning to an application of the privilege here. We must also determine what type of showing of need the OIC must make in defense of the grand jury subpoena in order to overcome the privilege.
Nixon, GSA, Sirica, and the other Nixon cases all employed a balancing methodology in analyzing whether, and in what circumstances, the presidential communications privilege can be overcome. Under this methodology, these opinions balanced the public interests served by protecting the President's confidentiality in a particular context with those furthered by requiring disclosure. Since Nixon and Sirica clearly establish that the presidential communications privilege can be overcome by a sufficient showing that subpoenaed evidence is needed for a criminal judicial proceeding, our task is not to weigh anew the public interest in preserving confidentiality against the public interest in assuring fair trials and enforcing the law. Rather, our task is to determine precisely what guidance these cases provide on what counts as a sufficient showing of need in our situation, and more specifically to clarify whether there is any difference between the need standard this court established in Sirica in regard to a grand jury subpoena and the standard articulated by the Supreme Court one year later in Nixon for a criminal trial subpoena.
At the end of its discussion of the presidential communications privilege in Nixon, the Supreme Court stated that the privilege "must yield to the demonstrated, specific need for evidence in a pending criminal trial." 418 U.S. at 713, 94 S.Ct. at 3110. What the Court meant by a "demonstrated, specific need" is debatable. Compare Cox, supra, at 1414-15 ("[t]he critical test [under Nixon] is
It would be strange indeed if Nixon required nothing more to overcome presidential privilege than the initial showing of relevancy, admissibility and specificity necessary to satisfy Rule 17(c) in all cases, even in cases where no claim of privilege is raised. If this were true, the privilege would have no practical benefit. That the Nixon Court believed overcoming the presidential privilege required something more than the ordinary Rule 17(c) showing is apparent from its statement, made at the outset of the discussion of presidential privilege, that "[h]aving determined that the requirements of Rule 17(c) were satisfied, we turn to the claim that the subpoena should be quashed because it demands confidential conversations between a President and his close advisers." 418 U.S. at 703, 94 S.Ct. at 3105 (internal quotations omitted); see also id. at 713-14, 94 S.Ct. at 3110-11 (distinguishing between inquiry into whether a subpoena was properly issued and review of claim of privilege raised on return of a properly issued subpoena). However, the opinion also cannot be read as demanding that the information sought must be shown to be critical to an accurate judicial determination; such a view simply is incompatible with the Court's repeated emphasis on the importance of access to relevant evidence in a criminal proceeding.
We conclude that Nixon's demonstrated, specific need standard has two components. A party seeking to overcome a claim of presidential privilege must demonstrate: first, that each discrete group of the subpoenaed materials likely contains important evidence; and second, that this evidence is not available with due diligence elsewhere. The first component, likelihood of containing important evidence, means that the evidence sought must be directly relevant to issues that are expected to be central to the trial. In practice, this component can be expected to have limited impact, since Rule 17(c) precludes use of a trial subpoena to obtain evidence that is not relevant to the charges being prosecuted or where the claim that subpoenaed materials will contain such evidence
Nixon, however, involved a trial subpoena; what we have here is a grand jury subpoena. In a post-Nixon decision, United States v. R. Enterprises, Inc., the Court emphasized that the unique function of the grand jury fundamentally differentiates its subpoenas from trial subpoenas. "The function of the grand jury is to inquire into all information that might possibly bear on its investigation, ... [and a]s a necessary consequence of its investigatory function, the grand jury paints with a broad brush." 498 U.S. 292, 297, 111 S.Ct. 722, 726, 112 L.Ed.2d 795 (1991); accord Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626 (1972). Requiring grand jury subpoenas to comply with the same requirements of relevancy, admissibility, and specificity under Rule 17(c) as applies to trial subpoenas would impose an impossible burden on the grand jury, create untoward delays, and threaten the secrecy of grand jury proceedings. R. Enters., 498 U.S. at 299, 111 S.Ct. at 727. As a result, the Court concluded that a grand jury subpoena is presumed to be reasonable and the burden is on the subpoena's opponent to disprove this presumption. Where "a subpoena is challenged on relevancy grounds, the motion to quash must be denied unless the district court determines that there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury's investigation." Id. at 301, 111 S.Ct. at 728.
But then again, R. Enterprises concerned a challenge to a grand jury subpoena only on grounds of relevance; it does not govern a case, such as this, where the grand jury subpoena is being resisted on grounds of privilege. Instead, the case most directly on point in this respect is Sirica, where this court was specifically confronted with a claim of presidential communications privilege raised against a grand jury subpoena. The OIC does not appear to dispute that Sirica is the governing case here; instead, the OIC
The OIC's position represents too selective a reading of Sirica. To be sure, at times in that opinion we used language suggesting the required demonstration was only that the materials sought were "directly relevant" to the grand jury's inquiry. For example, we commented that "[t]he exception that we have delineated to the President's confidentiality privilege depends entirely on the grand jury's showing that the evidence is directly relevant to its decisions." 487 F.2d at 719 (emphasis added); see also id. at 705-06. But admittedly we also used language on other occasions indicating that a far more substantial showing was required. We stated that the President's claim of privilege "must fail in face of the uniquely powerful showing made by the Special Prosecutor ... that the subpoenaed tapes contain evidence peculiarly necessary to the carrying out of [the grand jury's] vital function — evidence for which no effective substitute is available," 487 F.2d at 717 (emphasis added), and at another point characterized the Special Prosecutor's showing as being that "the subpoenaed recordings contain evidence critical to the grand jury's decisions." Id. at 706 (emphasis added). We echoed this latter characterization in Senate Committee, where we described Sirica as requiring a demonstration that "the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the [grand jury's] functions." 498 F.2d at 731 (emphasis added).
In this instance, we agree with the White House that the Sirica need standard which governs grand jury subpoenas is no more lenient than the need standard enunciated for trial subpoenas in Nixon. In both situations, to overcome the presidential privilege it is necessary to demonstrate with specificity why it is likely that the subpoenaed materials contain important evidence and why this evidence, or equivalent evidence, is not practically available from another source. See In re Grand Jury Subpoena, 112 F.3d at 927, 937 (Kopf, J., dissenting) (arguing that Nixon standard applies to grand jury subpoenas as well as trial subpoenas). On the one hand, to the extent that some of this court's comments in Sirica suggest that a more substantial showing of need must be made when presidential privilege is raised against a grand jury subpoena than the Supreme Court required in regard to a criminal trial subpoena, we do conclude that these comments have been effectively overruled by R. Enterprises. But R. Enterprises' emphasis on the special leeway given to grand jury subpoenas as opposed to criminal trial subpoenas absent a claim of privilege does not preclude us from finding that the same need standard applies when the presidential communications privilege is asserted. The necessary breadth of the grand jury's inquiries in fact supports applying a strict standard of need to overcome presidential privilege, because it means that grand jury subpoenas may well represent a much more frequent threat to presidential confidentiality. The Supreme Court has recognized that "the longstanding principle that the public has a right to every man's evidence" is limited by valid claims of privilege in grand jury proceedings as elsewhere, even as it held that this principle "is particularly applicable to grand jury proceedings." Branzburg, 408 U.S. at 688, 92 S.Ct. at 2660 (ellipsis omitted); see also United States v. Calandra, 414 U.S. 338, 344, 346, 94 S.Ct. 613, 618, 619, 38 L.Ed.2d 561 (1974) (while grand jury is "accorded wide latitude," "the grand jury's subpoena power is not unlimited" and "[j]udicial supervision is properly exercised" to protect claims of privilege).
Nor do we believe the Nixon/Sirica need standard imposes too heavy a burden on grand jury investigation. In practice, the primary effect of this standard will be to require a grand jury to delay subpoenaing evidence covered by presidential privilege until it has assured itself that the evidence sought from the President or his advisers is both important to its investigation and practically
We agree with the OIC in one regard, however. R. Enterprises makes clear that a grand jury subpoena is not subject to the same Rule 17(c) requirements of "relevancy, admissibility and specificity" as a criminal trial subpoena. Since to meet the need standard the grand jury will have to make a specific showing of the importance of the evidence it seeks, its exemption from the relevancy and specificity constraints of Rule 17(c) will not be significant. But the same is not true of the grand jury's freedom from the requirement of admissibility, and in R. Enterprises the Court underscored that a grand jury is often allowed to consider evidence that would be deemed inadmissible in a criminal trial. 498 U.S. at 298, 111 S.Ct. at 726-27. As a result, the fact that evidence covered by the presidential communications privilege may be inadmissible should not affect a court's determination of the grand jury's need for the material.
* * *
Based on our review of the Nixon cases and the purpose of the presidential communications privilege, we conclude that this privilege extends to cover communications which do not themselves directly engage the President, provided the communications are either authored or received in response to a solicitation by presidential advisers in the course of gathering information and preparing recommendations on official matters for presentation to the President. The privilege also extends to communications authored or solicited and received by those members of an immediate White House advisor's staff who have broad and significant responsibility for investigating and formulating the advice to be given to the President on a particular matter. We also hold that in order to overcome a claim of presidential privilege raised against a grand jury subpoena, it is necessary to specifically demonstrate why it is likely that evidence contained in presidential communications is important to the ongoing grand jury investigation and why this evidence is not available from another source.
IV. EXAMINATION OF THE WHITE HOUSE'S CLAIMS OF PRIVILEGE
Our final task is to apply the principles we have heretofore laid out to the documents withheld in this case. We have concluded that although all of the documents come under the presidential communications privilege, the OIC has demonstrated a sufficient showing of need to obtain certain information in some of the documents. Because we believe that the determination of exactly what evidence should be released is one that the district court should make in the first instance, we do not identify any specific portions of the documents to be released. However, we are supplementing our opinion with a sealed appendix to assist the district court with its in camera review of each document on remand.
A. The Presidential Privilege Applies
The withheld documents consist primarily of outlines of issues and questions that needed to be investigated and drafts of the White House Counsel's report on the Espy investigation. There are also notes of meetings and phone conversations, lists of information on Espy, and press briefings on Espy. Most of the documents were authored by two associate White House Counsel, a few were authored by top presidential advisers, specifically the White House Counsel, Deputy White House Counsel, Chief of Staff and Press Secretary. A few documents were authored by a legal extern in the White House Counsel's office, and there are also three documents for which no author is listed. According to the White House privilege log, as well as the headings of the documents themselves, it appears that most of the documents circulated only within the White
The documents that were authored by the White House Counsel, Deputy White House Counsel, Chief of Staff and Press Secretary were communications connected to an official matter on which they were directly advising the President, and thus under the principles laid out in this opinion these documents are clearly covered by the privilege. The same is true of notes taken of meetings on the Espy investigation at which these advisers were present, since these notes reflect these advisers' communications, and of documents that they solicited and received. As established above, the presidential privilege applies to communications made by a member of an immediate White House adviser's staff when the staff member has broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate. It is clear from a review of the documents that the two associate White House Counsel exercised broad and significant responsibility for gathering information on Espy's actions and authoring initial drafts of the White House Counsel's report. Consequently, documents they authored or they solicited and received from others also come under the privilege.
The only question regarding application of the presidential communications privilege here concerns the remaining withheld documents, which consist of those documents authored by the legal extern in the White House Counsel's office and three documents for which no author is listed. It is apparent that the legal extern did not exercise broad and significant responsibility for the Espy investigation, and therefore the documents authored by the legal extern do not, on their own, qualify for the presidential privilege. However, all of the withheld documents authored by the extern were clearly created at the request of the two associate White House Counsel with broad and significant responsibility for the Espy investigation and were received by them. Therefore, the privilege also applies to these documents. The status of the three no-author documents is more difficult to resolve. Two of these documents were received by the Deputy White House Counsel, and the other by one of the associate White House Counsel with broad and significant responsibility for the Espy investigation. These documents relate to operational details of the Espy investigation. Clearly, if these documents were solicited by the Deputy White House Counsel and the associate White House Counsel, they would be also covered by the privilege. The current description of these documents provided by the White House, however, does not specifically indicate whether these documents were in fact solicited. Ordinarily, the White House would be expected to demonstrate that they had been, but we do not believe a remand for that showing is necessary here because our review of the documents themselves demonstrates that from the nature of their contents and the persons to whom they were directed there can be little question that they had been solicited. As we are setting forth for the first time the principles by which we will determine whether the privilege applies to communications of presidential advisers that do not directly involve the President, we believe it would be unrealistic to expect the White House to have foreseen the need to specifically demonstrate that the documents had been solicited.
In sum, we conclude that all of the documents withheld by the White House here are subject to the presidential communications privilege. As a result, we need not determine whether the documents would qualify for the deliberative process privilege.
B. The OIC's Demonstration of Need
A preliminary question that must be addressed before we turn to an examination of the OIC's demonstration of need is whether we should be reviewing this demonstration at all. The procedure envisioned by the Nixon cases, as outlined earlier, is that upon a sufficient showing of need, the President must turn over privileged materials for in camera review, whereupon the court reviews the materials and determines what should be released. This case comes to us in a significantly different posture than Nixon and Sirica. In both of those cases, President Nixon was challenging district court orders that instructed him to submit the subpoenaed tapes for in camera review. In this case, the White House has already turned over the subpoenaed materials for in camera review pursuant to the district court's order, and did not appeal from that order. Instead, we have before us the OIC's appeal of the district court's denial of the OIC's motion to compel. Thus, we are presented with the question of whether we should forego determining whether or not the OIC made a sufficient showing of need to obtain in camera review, and instead simply instruct the district court to review the withheld documents and determine what evidence should be released.
How we resolve this question could have a significant impact on what materials are disclosed to the grand jury, because the standard applied to determine if the OIC has made a sufficient showing of need to obtain in camera review is much more difficult to satisfy than the standard applied during in camera review to determine exactly what evidence should be released. As we explained in the preceding section, the showing required to obtain in camera review is governed by the Nixon/Sirica need standard and entails demonstrating with specificity that the subpoenaed materials likely contain important evidence and that this evidence, or equivalent evidence, is not practically available from another source. The purpose of this initial showing is to protect the confidentiality of presidential communications; it operates on the presumption that these communications are privileged and requires the subpoena proponent to meet a certain threshold of need before a court will consider releasing any of the communications sought.
The district court's in camera review also aims to ensure that presidential confidentiality is not unnecessarily breached, but it operates on the presumption that some privileged materials will probably be released. The court's task during its in camera review is simply to ensure that privileged materials that would not be of use to the subpoena proponent are not released. Nixon, 418 U.S. at 714, 94 S.Ct. at 3110; Sirica, 487 F.2d at 719-21. Nixon makes clear that the court determined what evidence could be of use to the subpoena proponent by isolating all evidence that satisfies the applicable Rule 17(c) requirements of admissibility and relevance. This evidence is then released, while the remaining materials are returned to the President. 418 U.S. at 714-15, 94 S.Ct. at 3110-11. As mentioned above, Rule 17(c) does not impose an admissibility requirement on grand jury subpoenas, and requires release of evidence unless there is no reasonable possibility that subpoenaed evidence will be relevant to grand jury proceedings. See R. Enterprises, 498 U.S. at 298, 301, 111 S.Ct. at 726-27, 728. Thus, once a grand jury has provided an adequate demonstration of need to obtain in camera review of materials covered by the presidential privilege, the court should review the subpoenaed material and release any evidence that might reasonably be relevant to the grand jury's investigation. The question of what evidence might reasonably be relevant to the grand jury's investigation should be answered by reference to the reasons the grand jury gave in explaining its need for the subpoenaed materials.
We believe that the appropriate course for us is to determine whether the OIC made out a sufficient showing of need to
The OIC provides two arguments as to why the grand jury needs the documents. One is the general claim that as the White House investigated the same subject matter as the grand jury, namely whether Espy accepted improper gifts or otherwise abused his position, the White House documents will clearly be relevant to the grand jury's investigation. The other is that the grand jury is investigating whether Espy made false statements to the White House during its investigation, and evidence of statements made by Espy or his lawyers to the White House are key in determining whether false statements were in fact made. The OIC has submitted an ex parte affidavit and other materials in support of these arguments.
We find the OIC's first justification of the grand jury's need for the documents, that the withheld documents were generated by the White House Counsel's office in preparing its report on the same allegations regarding Espy that the grand jury is investigating, insufficient, at this stage, to constitute an adequate showing of need under the Nixon/Sirica standard. It is true, as the OIC contends, that the withheld documents likely will contain evidence that is directly relevant to the grand jury's investigation of Espy. But the OIC has not yet made a sufficient demonstration of its inability to obtain this information from alternative sources or an explanation of why it particularly needs to know what evidence is in the White House files. Here, unlike in the Nixon cases, the actions of White House officers do not appear to be under investigation.
We recognize the difficulty that the OIC faces in demonstrating that it has not been able to obtain the information contained in the White House Counsel's documents when it does not know what this information is. This difficulty has been worsened by the extremely sketchy descriptions of the withheld documents that the White House provided in its privilege log. We also realize that in order to preserve the secrecy of the grand jury's investigation, the OIC is understandably reluctant to detail the witnesses it has interviewed so far or the areas on which the investigation is focusing. But the OIC has not even attempted this task. For example, during their negotiations over the withheld documents, the White House Counsel's office informed the OIC that the documents contained notes from interviews with two USDA attorneys. Yet the OIC has not indicated whether it interviewed attorneys at USDA and if so whether any one of them admitted to having conversations with the White House Counsel's office. Again, while the OIC notes in its brief that the withheld documents could contain statements from witnesses who are no longer cooperating with the grand jury's investigation, it provides no basis on which we could conclude that this is in fact the case. We also note that the
Nonetheless, it is possible that the OIC might be able to provide a sufficient justification for obtaining factual information in the White House files that it might not already possess. The White House has conceded that there is some factual information in the withheld documents that is not also contained in the documents that the White House released, and our own review of the documents has identified a sizeable number of such items of information, though many of them appear to be of minimal consequence. Moreover, the grand jury investigation into Espy's actions has now lasted over two years, so that if and when the OIC provides some account of the information the grand jury has been unable to obtain, it will be fair to conclude that this information is not obtainable elsewhere. The OIC may also be able to demonstrate a need for information that it currently possesses, but which it has been unable to confirm or disprove.
Consequently, on remand the OIC should be given an opportunity to supplement its showing of need for the information contained in the withheld documents. If the district court determines that the OIC's demonstration of need satisfies the Nixon/Sirica standard, the court should review the documents in camera and release any information that might reasonably be relevant in light of this demonstration of need. Two caveats should be noted. First, since the grand jury is investigating Espy's actions, not those of the White House Counsel's office, the purely deliberative portions of the documents should not be released. Second, only information that is not contained in the documents that the White House earlier released should be provided to the grand jury, since any new release of previously disclosed information would be purely cumulative. See Senate Committee, 498 F.2d at 732.
The OIC's second, more narrow argument as to why the grand jury needs the withheld documents is much more powerful. The OIC argues that these documents may contain evidence of statements made by Espy or his lawyers to the White House, and that the grand jury needs this evidence in order to determine whether Espy made false statements to the White House.
The OIC's second argument of need for evidence in the subpoenaed documents is sufficient to obtain in camera review; the OIC has demonstrated that it is likely the subpoenaed documents contain important evidence that is not available elsewhere. On in camera review, the district court should isolate and release all evidence that might reasonably
We therefore hold that the OIC has demonstrated sufficient need in order to overcome the presidential communications privilege in regard to evidence of statements made by Espy or his counsel and contained in the withheld documents, and that the OIC should be given an opportunity to make out a sufficient showing of need in regard to other evidence more generally. On remand, the district court should identify and release specific items of evidence that might reasonably be relevant to the grand jury's investigation into the potential false statements charge. If the court deems any additional showing of need presented by the OIC to be sufficient, it should also identify any new items of information that merit release. We are submitting a sealed appendix to assist the district court with its review.
This case forces us to engage in the difficult business of delineating the scope and operation of the presidential communications privilege. In holding that the privilege extends to communications authored by or solicited and received by presidential advisers and that a specified demonstration of need must be made even in regard to a grand jury subpoena, we are ever mindful of the dangers involved in cloaking governmental operations in secrecy and in placing obstacles in the path of the grand jury in its investigatory mission. There is a powerful counterweight to these concerns, however, namely the public and constitutional interest in preserving the efficacy and quality of presidential decisionmaking. We believe that the principles we have outlined in this opinion achieve a delicate and appropriate balance between openness and informed presidential deliberation.
The decision of the district court is vacated and the case is remanded for further proceedings consistent with this opinion.