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Before: Wald, Ginsburg and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Wald.
Wald, Circuit Judge : This case involves an effort by the
Office of the Independent Counsel ("OIC") to compel perfor-
mance of a subpoena duces tecum issued by the grand jury
investigating former Secretary of Agriculture Alphonso Mi-
chael (Mike) Espy ("Espy") and served on the Counsel to the
President ("White House Counsel"). The White House pro-
vided 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
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 pub-
licly in March of 1994. These allegations led to the appoint-
ment 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
(D.C. Cir. Spec. Div. 1996) (per curiam). This investigation
into Espy's actions is still ongoing.
The same allegations also led the President of the United
States to direct the White House Counsel to investigate
Espy's conduct in order to advise the President on whether
he should take executive action against Espy. On October 3,
1994, Espy announced his resignation, effective December 31,
1994. A little over a week later, on October 11, 1994, the
White House publicly released a report on Espy produced by
the White House Counsel. The report stated that the Presi-
dent had asked the White House Counsel to address two
issues: "(1) whether the President should direct that any
further action be taken with respect to Secretary Espy's
conduct; and (2) what actions should be taken to ensure that
similar incidents are avoided by other Members of the Cabi-
net." After detailing several areas in which questions had
been raised regarding Espy's conduct, the report concluded
that no further executive action need be taken against Espy
since he had announced his resignation, reimbursed the cost
of questionable transactions, recused himself from matters
involving meat and poultry inspection and undertaken screen-
ing measures for his travel. The report also recommended
that efforts be undertaken to ensure that all cabinet members
and other executive branch officers be given ethics trainingand be familiarized with applicable ethical standards for
executive branch officers.
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 investiga-
tion that were "accumulated for, relating in any way to, or
considered in any fashion, by those persons who were consult-
ed 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. 1 In a later draft of the privilege log, the White
House lists the privilege basis of all 84 documents as being
"executive/deliberative privilege." 2
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 communica-
tions, recognized in United States v. Nixon, 418 U.S. 683
(1974) ( Nixon ), and the deliberative process privilege that
protects the deliberations and decisionmaking process of ex-
ecutive officials generally. After a hearing on the motion to
compel, the district court ordered the White House to pro-
duce the withheld documents for in camera review and the
White House complied. Each document produced was ac-
companied by an ex parte cover sheet that explained the
purpose of the document. The OIC also made an ex parte
submission justifying the grand jury's need for the docu-
ments. On September 30, 1996, the court denied the motion
to compel. The memorandum opinion accompanying the
denial quoted from Nixon to the effect that the "generalized
assertion of privilege [for presidential communications] must
yield to the demonstrated, specific need for evidence in a
pending criminal trial," 418 U.S. at 713 , but then concluded
that the White House had properly asserted the claimed
privileges in this case. In reaching this conclusion, the court
stated that it had carefully reviewed the documents, but did
not discuss the documents in any further detail and provided
no analysis of the grand jury's asserted need for the docu-
ments.
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
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wide variety of evidentiary and substantive privileges that courts
accord the executive branch. Consequently, we refer to the privi-
leges asserted by the White House more specifically as the presi-
dential communications privilege, or presidential privilege, and the
deliberative process privilege.
waived its claims of privilege by releasing the final WhiteHouse Counsel 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 Coun-
sel'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 ap-
plied 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 delibera-
tive 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 commu-
nications 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 docu-
ments is inseparable from the documents' deliberative por-
tions. 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 itdid 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 informa-
tion 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. Reyn-
olds, 345 U.S. 1, 6-8 (1953); Chicago & S. Airlines, Inc. v.
Waterman Steamship Corp., 333 U.S. 103, 111 (1948); Totten
v. United States, 92 U.S. 105, 106-07 (1875). The courts have
also granted the executive a right to withhold the identity of
government informers in some circumstances, Roviaro v.
United States, 353 U.S. 53, 59-61 (1957), and a qualified right
to withhold information related to pending investigations.
See Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d
1336, 1341-43 (D.C. Cir. 1984). Other privileges sanctioned
by the Supreme Court include the grant of absolute immunity
to the President from civil liability for official acts, see Nixon
v. Fitzgerald, 457 U.S. 731, 749 (1982) ( Fitzgerald ), and from
judicial compulsion to perform a discretionary act. See
Franklin v. Massachusetts, 505 U.S. 788, 802-03 (1992) (plu-
rality opinion); Swan v. Clinton, 100 F.3d 973, 977-78 (D.C.
Cir. 1996). 3
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 govern-
mental 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 (1975);
EPA v. Mink, 410 U.S. 73, 86-93 (1973). Although this
privilege is most commonly encountered in Freedom of Infor-
mation Act ("FOIA") litigation, it originated as a common law
privilege. See Wolfe v. HHS, 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). 4 Two requirements are
essential to the deliberative process privilege: the material
must be predecisional and it must be deliberative. See Army
Times Publ'g Co. v. Department of the Air Force, 998 F.2d
1067, 1070 (D.C. Cir. 1993); Wolfe, 839 F.2d at 774. Both
requirements stem from the privilege's "ultimate purpose[,
which] ... is to prevent injury to the quality of agency
decisions" by allowing government officials freedom to debate
alternative approaches in private. Sears, 421 U.S. at 151 .
The deliberative process privilege does not shield documents
that simply state or explain a decision the government has
already made or protect material that is purely factual, unless
the material is so inextricably intertwined with the delibera-
tive sections of documents that its disclosure would inevitably
reveal the government's deliberations. See id. at 150-54;
Mink, 410 U.S. at 87 -91; Wolfe, 839 F.2d at 774; see general-
ly Russell L. Weaver & James T.R. Jones, The Deliberative
Process Privilege, 54 Mo. L. Rev. 279, 290-98 (1989).
The deliberative process privilege is a qualified privilege
and can be overcome by a sufficient showing of need. 5 This
need determination is to be made flexibly on a case-by-case,ad hoc basis. "[E]ach time [the deliberative process privi-
lege] is asserted the district court must undertake a fresh
balancing of the competing interests," taking into account
factors such as "the relevance of the evidence," "the availabili-
ty of other evidence," "the seriousness of the litigation," "the
role of the government," and the "possibility of future timidi-
ty by government employees." In re Subpoena Served Upon
the Comptroller of the Currency, 967 F.2d 630, 634 (D.C. Cir.
1992) (internal quotations omitted) (quoting In re Franklin
Nat'l Bank Securities Litig., 478 F. Supp. 577, 583 (E.D.N.Y.
1979)); see also Tuite v. Henry, 98 F.2d 1411, 1417 (D.C. Cir.
1996) (describing need in the context of the law enforcement
investigatory privilege, which involves balancing similar fac-
tors, as "an elastic concept"); Developments in the Law_
Privileged Communications, 98 Harv. L. Rev. 1450, 1621
(1985) ("courts simply engage in an ad hoc balancing of the
evidentiary need against the harm that may result from
disclosure"); Larkin, supra, § 5.03 at 5-89 to 5-92 ("need for
[privileged materials] may vary considerably, depending on
the circumstances"). For example, where there is reason to
believe the documents sought may shed light on government
misconduct, "the privilege is routinely denied," on the
grounds that shielding internal government deliberations in
this context does not serve "the public's interest in honest,
effective government." Texaco Puerto Rico, Inc. v. Depart-
ment of Consumer Affairs, 60 F.3d 867, 885 (1st Cir. 1995);
see also In re Comptroller of the Currency, 967 F.2d at 634
("the privilege may be overridden where necessary ... to
'shed light on alleged government malfeasance' ") (quoting
Franklin Nat'l Bank, 478 F. Supp. at 582); Wetlaufer, supra,
at 852 n.25, 855 (listing cases).
Although executive privilege in general is no stranger to
the courtroom, one form of the executive privilege is invoked
________________________
Press, 489 U.S. 749, 771-72 (1989) (determination of whether disclo-
sure of information constitutes an unwarranted invasion of privacy
under FOIA's exemption 7(c) turns on nature of document and what
document reveals about operation of government and not on identi-
ty or purpose of requestor).
only rarely and that is the privilege to preserve the confiden-tiality of presidential communications. Hints of a presidential
communications privilege made an early appearance in Mar-
bury 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) 170 (1803). Four years
later, in 1807, Marshall again addressed the presidential
privilege during the trial of Aaron Burr on charges of trea-
son. 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." Unit-
ed States v. Burr, 25 F. Cas. 30, 37 (CC 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 defini-
tively 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. at 177 . 6 In the Burr misdemeanor trial, Jefferson
responded to the subpoena by sending Wilkinson's letter toGeorge Hay, the U.S. Attorney prosecuting Burr, with in-
structions that the U.S. Attorney should determine what
portions should be withheld. This delegation induced Mar-
shall to order that the letter be provided to Burr in its
entirety, because "[t]he propriety of withholding [the letter]
must be decided by [the President] himself." United States
v. Burr, 25 F. Cas. 187, 192 (CC Va. 1807) (No. 14,694). 7
The presidential communications privilege did not resurface
in court for over a hundred and fifty years. 8 Presidential
claims of a right to preserve the confidentiality of informationand documents figured more prominently in executive-
congressional relations, but these claims too were most often
essentially assertions of the deliberative process privilege. 9
Moreover, given the restrictions on congressional standingand the courts' reluctance to interfere in political battles, few
executive-congressional disputes over access to information
have ended up in the courts. 10 As a result, it was not until
the 1970s and Watergate-related lawsuits seeking access to
President Nixon's tapes as well as other materials that the
existence of the presidential privilege was definitively estab-
lished as a necessary derivation from the President's constitu-
tional status in a separation of powers regime.
In this case, the White House is asserting both the deliber-
ative process privilege and the presidential communications
privilege. 11 Our review of the withheld documents indicates
that several documents are either wholly factual or contain
segregatable factual sections that would not come under the
deliberative process privilege. Consequently, we must decide
whether the White House properly asserted the presidential
communications privilege over the documents.
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 thedistrict 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 docu-
ments. Since the district court reviewed the withheld docu-
ments in camera before denying the OIC's motion to compel,
the absence of detailed findings would not, on its own, pre-
clude 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 demonstra-
tion 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.
II. Waiver
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 public-
ly released the White House Counsel's report, issued a press
statement indicating it would comply with the OIC's subpoe-
na, 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
one of the withheld documents, document 63, the only differ-
ence 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. "Since executive privilege exists to aid the gov-
ernmental decisionmaking process, a waiver should not be
lightly inferred." SCM Corp. v. United States, 473 F. Supp.
791, 796 (Cust. Ct. 1979); see also Nixon v. Sirica ( Sirica ),
487 F.2d 700, 717 (D.C. Cir. 1973) (explicit statement by
President Nixon that "[e]xecutive privilege will not be in-
voked" considered one factor in assessing need to preserve
confidentiality of subpoenaed materials, but not held to con-
stitute a waiver). The press statement was not an official
response to the subpoena, and it is clear from the record that
the OIC was well aware the White House would be asserting
privileges in regard to certain documents. Shortly after the
statement was issued the White House Counsel informed the
OIC that it believed some of the material was privileged,
provoking lengthy negotiations between the two over the
status of the withheld documents. There is nought to indi-
cate that the press statement misled the OIC.
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
privilege within [the stipulated period] of service." Tuite, 98
F.2d 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 Wein-
stein's Federal Evidence § 503.09[4] at 503-44 (failure to
assert attorney-client privilege at a hearing at which privi-
leged 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 pro-
ducing 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 con-
text "waives the privilege, not only as to the specific commu-
nication 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 Wein-
stein'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 docu-
ment only waives these privileges for the document or infor-
mation specifically released, and not for related materials.
See Mobil Oil Corp. v. EPA, 879 F.2d 698, 700-02, 703 (9th
Cir. 1989); Mehl v. 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
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. 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 it
voluntarily revealed to third parties outside the White House,
namely the final report itself and the typewritten text of
document 63, which was sent to Espy's Counsel. Our review
reveals that none of the withheld documents is identical to the
final White House Counsel report, that no other withheld
document is identical to document 63 and that document 63
has handwritten notations that the White House claims were
not on the document sent to Espy's counsel. Thus, although
the White House has waived its privileges regarding the
typed text of document 63, the handwritten notations remain
subject to our privilege analysis, and if found privileged can
be redacted from document 63 before it is released to the
grand jury.
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.
Judicial discussion of the presidential communications privi-
lege exploded in the early to mid-1970s when the investiga-
tion 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
presidential communications privilege in response, and also in
several subsequent lawsuits that sought access to the tapes
and other presidential materials generated by his administra-
tion. 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 communica-
tions privilege. We begin our analysis of the White House's
assertion of the presidential privilege in this case by examin-
ing 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 Presi-
dential 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 disclo-
sure in a particular case." 487 F.2d at 716. We initially
recognized a "great public interest" in preserving "the confi-
dentiality 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 deci-
sion-making process," as a result, we said, presidential con-
versations "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 Prose-
cutor in this case." Id. We ordered that the tapes be turnedover 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 presi-
dential communications existed reached the Supreme Court.
Nixon concerned a subpoena issued by the Watergate Special
Prosecutor for additional tapes, this time for use in the
pending trial of seven individuals indicted by the Watergate
grand jury. In a unanimous opinion, the Court agreed that
there was "a presumptive privilege for Presidential communi-
cations," 418 U.S. at 708 , founded on "a President's general-
ized interest in confidentiality." Id. at 711. It found such a
privilege necessary to guarantee the candor of presidential
advisors and to provide "[a] President and those who assist
him ... [with] free[dom] to explore alternatives in the pro-
cess of shaping policies and making decisions and to do so in a
way many would be unwilling to express except privately."
418 U.S. at 708 . Although not expressly provided for in the
Constitution, the privilege nonetheless has constitutional ori-
gins; it is "inextricably rooted in the separation of powers
under the Constitution," id., and also "flow[s] from the nature
of enumerated powers" of the President. Id. at 705 & n.16.
But, the Court insisted, "neither the doctrine of separation of
powers, nor the need for confidentiality of high-level commu-
nications, without more, can sustain an absolute, unqualified
Presidential privilege of immunity from judicial process under
all circumstances." Id. at 706. Turning to the precise issue
at hand, the Court held that an assertion of executive privi-
lege "based only on the generalized interest in confidentiality
.... must yield to the demonstrated, specific need for evi-
dence in a pending criminal trial." Id. at 713. 12 The Court
remanded for the district court to perform an in camera
review in which relevant and admissible evidence in the tapeswould be isolated for release to the Special Prosecutor; the
confidentiality of non-relevant material on the tapes was to be
preserved. On remand, the President was also to be given an
opportunity to raise more particularized claims of privilege.
Id. at 714-15 & n.21.
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 de-
mands for information." Id. at 712 n.19. It fell to the
remaining Nixon cases to address the scope of the presiden-
tial communications privilege in other contexts. 13 In Senate
Committee, a decision that pre-dated Nixon, this court re-fused to enforce a subpoena for tapes issued by the Senate
Committee investigating illegal activities connected to the
1972 election, on the grounds that the Senate Committee had
not demonstrated that the tapes were "demonstrably critical
to the responsible fulfilment of the Committee's functions."
498 F.2d at 731. Subsequently, the Court of Claims held that
the presidential communications privilege could be overcome
by the evidentiary demands of a civil trial, see Sun Oil Co. v.
United States, 514 F.2d 1020, 1024 (Ct. Cl. 1975), and in
Dellums v. Powell this court agreed, holding that an adequate
showing of need in a civil trial would also defeat the privilege
"at least where, as here, the action is tantamount to a charge
of civil conspiracy among high officers of government to deny
a class of citizens their constitutional rights and where there
has been sufficient evidentiary substantiation to avoid the
inference that the demand reflects mere harassment." 561
F.2d 242, 247 (D.C. Cir. 1977); see also Dellums v. Powell,
642 F.2d 1351 (D.C. Cir. 1980) (remanding to give President
Nixon further opportunity to assert more particularized
claims of privilege).
The Supreme Court had its next encounter with the presi-
dential communications privilege in Nixon v. Administrator
of General Services ( GSA ), which concerned the operation of
the privilege in the context of congressional legislation. 14Congress enacted the Presidential Recordings and Materials
Preservation Act ("PRMPA"), which transferred custody of
the Nixon tapes along with a vast number of other presiden-
tial documents from the Nixon administration to the custody
of the General Services Administrator. President Nixon
challenged PRMPA as unconstitutional, in part because it
infringed on the presidential privilege. The Court first held
that a former President could assert the privilege on his own,
but his claim would be given less weight than that of an
incumbent President. 433 U.S. 425, 449 (1977). Moreover, it
said the privilege was "limited to communications 'in perfor-
mance of [a President's] responsibilities,' 'of his office,' and
made 'in the process of shaping policies and making deci-
sions.' " Id. at 449 (quoting Nixon ) (citations omitted). The
Court then noted that the only intrusion into the confidentiali-
ty of presidential communications in the case was the screen-
ing of the materials by archivists, since the statute provided
that the Administrator would promulgate regulations which
allowed claims of privilege to be raised before public access
occurred. This screening by government archivists who had
performed the same task for past Presidents without any
apparent interference with presidential confidentiality was
viewed by the Court as "a very limited intrusion," and also as
justified in light of the substantial public interests served by
the Act. Id. at 450-55. 15
The Nixon cases establish the contours of the presidential
communications privilege. The President can invoke the
privilege when asked to produce documents or other materi-
als that reflect presidential decisionmaking and deliberations
and that the President believes should remain confidential.
If the President does so, the documents become presumptive-
ly privileged. 16 However, the privilege is qualified, not abso-
lute, and can be overcome by an adequate showing of need.
If a court believes that an adequate showing of need has been
demonstrated, it should then proceed to review the docu-
ments in camera to excise non-relevant material. The re-
maining relevant material should be released. Further, the
President should be given an opportunity to raise moreparticularized claims of privilege if a court rules that the
presidential communications privilege alone is not a sufficient
basis on which to withhold the document.
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 execu-
tive officials generally, the other specifically to decisionmak-
ing of the President. The presidential privilege is rooted in
constitutional separation of powers principles and the Presi-
dent's unique constitutional role; the deliberative process
privilege is primarily a common law privilege. See Fitzger-
ald, 457 U.S. at 753 & 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 presiden-
tial 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 docu-
ments. 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 ; but see Larkin, supra,
§ 6.01 at 6-1 (asserting, without explanation, that the presi-
dential 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 webelieve the Court meant that the privilege was limited to
materials connected to presidential decisionmaking, as op-
posed to other executive branch decisionmaking, and not that
only pre-decisional materials were covered. 433 U.S. at 449 .
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 particu-
lar course of action, but asks his advisors to submit follow-up
reports so that he can monitor whether this course of action
is likely to be successful. The release of final and post-
decisional materials would also limit the President's ability to
communicate his decisions privately, thereby interfering with
his ability to exercise control over the executive branch. 17
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 areallegations of misconduct by high-level officials. 18 In holding
that the Watergate Special Prosecutor had provided a suffi-
cient showing of evidentiary need to obtain tapes of President
Nixon's conversations, the Supreme Court made no mention
of the fact that the tapes were sought for use in a trial of
former presidential assistants charged with engaging in a
criminal conspiracy while in office. Accord Senate Commit-
tee, 498 F.2d at 731 (noting that presidential privilege is not
intended to shield governmental misconduct but arguing that
showing of need turns on extent to which subpoenaed evi-
dence is necessary for government institution to fulfill its
responsibilities, not on type of conduct evidence may reveal);
contra 26A Wright & Graham, supra, § 5673, at 53-54 (quot-
ing Senate Committee 's not-a-shield language and arguing
that allegations of misconduct qualify the privilege, but not
addressing Senate Committee 's comment that need showing
turns on function for which evidence is sought and not on
conduct revealed by evidence).
These differences between the presidential communications
privilege and the deliberative privilege demonstrate that the
presidential privilege affords greater protection against dis-
closure. Consequently, should we conclude as to any docu-
ment 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 Commu-
nications 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 meetingsamong White House advisors, 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
his chief advisors? And if the privilege does extend past the
President, how far down into his circle of advisors does it
extend?
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 presi-
dential privilege also covered communications in which the
President did not directly participate. 19 The language used
to describe the scope of the privilege in the opinions vacillates
between broad and narrow depictions of the privilege. In
Nixon the Court referred to "[a] President's acknowledged
need for confidentiality in the communications of his office, "
418 U.S. at 712 -13 (emphasis added) and elaborated that "[a]
president and those who assist him must be free to explore
alternatives in the process of shaping policies and making
decisions," id. at 708 (emphasis added), suggesting that actual
presidential involvement in the communication is not a pre-
requisite to privilege. See also id. at 705 (privilege grounded
in the need to protect "communications between high Govern-
ment officials and those who advise and assist them in the
performance of their manifold duties"). But Nixon also uses
language that appears to tie the privilege to the President;
the opinion repeatedly refers to the privilege as a "privilege
of confidentiality of Presidential communications," id. at 705
(emphasis added), and as rooted in "[t]he expectation of a
President to the confidentiality of his conversations and cor-
respondence." Id. at 708 (emphasis added). Similar varia-tion can be found in Sirica, which describes the privilege
interchangeably as designed to "protect the effectiveness of
the executive decision-making process" and as intended to
"maintain[ ] the confidentiality of conversations that take
place in the President's performance of his official duties."
487 F.2d at 717 (emphasis added); see also Dellums, 561 F.2d
at 246, 247 (describing the privilege at one point as covering
"confidential communications with the President" and at an-
other as "attach[ing] to the communications, submissions and
deliberations essential to the conduct of the office of the
[P]resident").
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 (emphasis added); see also id. at 454 (only a "small
fraction of the materials ... implicate Presidential confiden-
tiality"). 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 com-
munications never directly received by the President but
rather channelled in a variety of ways to him or his advisors,"
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 ofpresidential 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 held that even so the memoranda should be
released because the plaintiffs had made out a sufficient
showing of need. 514 F.2d at 1022, 1024.
A case that did directly touch on the question of how far
down the line the presidential communications privilege ex-
tends was Association of American Physicians and Surgeons
v. Clinton ( AAPS ). AAPS involved an effort to enjoin Presi-
dent 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 unconstitu-
tional intrusion on the presidential communications privilege.
This privilege, we argued, "attaches not only to direct com-
munications with the President, but also to discussions be-
tween his senior advisors[, 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 un-
derlying FACA justified interference with the privilege, since
it found that "a strong argument" could be made for exempt-
ing the Task Force based on the statutory text. Id. at 905. 20
There are acknowledgedly strong arguments in favor of
holding that the presidential communications privilege applies
to only those communications that directly involve the Presi-
dent. 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, particularly in separation of powers analysis. See Wet-
laufer, 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 superviso-
ry and policy responsibilities of the utmost discretion and
sensitivity." Fitzgerald, 457 U.S. at 750 . Nixon identified
the President's Article II powers and responsibilities as the
constitutional basis of the presidential communications privi-
lege. 418 U.S. 705 & 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, with Harlow v. Fitzgerald, 457 U.S. 800 , 808-
13 (1982); see also Mitchell v. Forsyth, 472 U.S. 511, 520-24
(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 subject-
ed to judicial process are not implicated when a court exercis-
es jurisdiction over other executive branch officials. 505 U.S.
at 801-02. 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 Commis-
_________________________
vacated by the court en banc, and the government abandoned its
presidential privilege claims before the full court. See Wolfe, 839
F.2d at 773 n.5.
sioner of the Food and Drug Administration should be able todo so as well, noting that "for purposes of separation of
powers, the President stands in an entirely different position
than other members of the executive branch." 100 F.3d 1015,
1017 (D.C. Cir. 1996).
An additional reason to restrict the presidential communi-
cations privilege to direct communications with the President
is the general rule, underscored by the Supreme Court in
Nixon, that privileges should be narrowly construed: "excep-
tions 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 ; accord Jaffee v.
Redmond, 116 S. Ct. 1923, 1932, 1933 (1996) (Scalia, J.,
dissenting); Trammel v. United States, 445 U.S. 40, 50
(1980); In Re Grand Jury Subpoena Duces Tecum, 112 F.3d
910, 918 (8th Cir. 1997). The argument for a narrow con-
struction 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 Regulato-
ry 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 Disagree-
ment 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 advisors not directly involving the President inev-
itably 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 Nix-
on's attempt to invoke presidential privilege to prevent re-
lease 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 govern-
ment has always been thought crucial to ensuring that the
people remain in control of their government. According to
James Madison,
[a] popular Government, without popular information, or
the means of acquiring it, is but a Prologue to a Farce or
a Tragedy; or perhaps both. Knowledge will forever
govern ignorance: And a people who mean to be their
own Governors, must arm themselves with the power
which knowledge gives.
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, "Con-
gress recognized that the public cannot make intelligent
decisions without [adequate] information, and that govern-
mental institutions become unresponsive to public needs if
knowledge of their activities is denied to the people and their
representatives"). The very reason that presidential commu-
nications deserve special protection, namely the President's
unique powers and profound responsibilities, is simultaneous-
ly the very reason why securing as much public knowledge of
presidential actions as is consistent with the needs of govern-
ing is of paramount importance.
But a very powerful case can also be made for extending
the presidential communications privilege beyond those mate-
rials 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 immedi-
ate advisors more convincing. Nixon does not specifically
establish how far down the chain of command the presidential
communication privilege extends, but it does make absolutelyclear that the privilege itself is rooted in the need for
confidentiality to ensure that presidential decisionmaking is of
the highest caliber, informed by honest advice and full knowl-
edge. Confidentiality is what ensures the expression of "can-
did, objective, and even blunt or harsh opinions" and the
comprehensive exploration of all policy alternatives before a
presidential course of action is selected. See Nixon, 418 U.S.
at 708; see also GSA, 433 U.S. at 449 . Several commentators
have argued that presidential advisors may not be as likely to
"temper candor with a concern for appearances and for their
own interests to the detriment of the decisionmaking pro-
cess," Nixon, 418 U.S. at 705 , as the Supreme Court feared.
See, e.g., Wetlaufer, supra, at 886-90; 26A Wright & Miller,
supra, § 5673 at 38-39. But_even if we were free to ignore
Nixon, which we are not_we are not so sanguine that
presidential advisors will never be dissuaded from expressing
unpopular but correct opinions out of a fear of disclosure, or
that able individuals will not shrink from assuming a position
as presidential advisor in the first place if by doing so they
step unprotected into the limelight. And the critical role that
confidentiality plays in ensuring an adequate exploration of
alternatives cannot be gainsaid. If presidential advisors must
assume they will be held to account publicly for all ap-
proaches that were advanced, considered but ultimately re-
jected, they will almost inevitably be inclined to avoid serious
consideration of novel or controversial approaches to presi-
dential problems.
Presidential advisors 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 advisors will investi-
gate 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 rely-
ing substantially, if not entirely, on the information and
analysis supplied by advisors. "Even the most sensitive
issues of national security must be brought to the point ofpresidential 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: Separa-
tion 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 advisors 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 advisors'
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 advisors provide knowledgeable and candid ad-
vice, 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, poten-
tial exposure of the information in the possession of an
advisor can be as inhibiting as exposure of the actual advice
she gave to the President. Without protection for her
sources of information, an advisor may be tempted to forego
obtaining comprehensive briefings or initiating deep and in-
tense probing for fear of losing deniability. Exposure of the
factual portions of presidential advisors' communications also
represents a substantial threat to the confidentiality of the
President's own deliberations. Knowledge of factual informa-
tion gathered by presidential advisors can quickly reveal the
nature and substance of the issues before the President, since
"[i]f you know what information people seek, you can usually
determine why they seek it." Id.
The greater ease with which the deliberative process privi-
lege can be overcome is another reason to doubt its efficacy in
ensuring candid presidential advice. In Nixon the SupremeCourt recognized that some possibility of disclosure is unlike-
ly 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 disclo-
sure [that might occur if their] ... conversations will be
called for in the context of a criminal prosecution." 418 U.S.
at 712. The risk of a chill increases, however, as the possibili-
ty 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 advisors 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 Presi-
dent 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 advisors which do not directly
involve the President does not mean that these communica-
tions 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 re-
leased 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, 1997 WL 273679 at *12 n.39 (quoting
Burr and noting "[s]pecial caution is appropriate if the mate-
rials or testimony sought by the court relate to a President'sofficial activities"). Indeed, if the President's immediate ad-
visors were only covered by the deliberative process privilege,
courts might feel compelled to extend the deliberative privi-
lege to cover factual material in order to ensure that the
President had sufficient freedom from public review to oper-
ate 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 presiden-
tial 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 (1988); see also Loving v. United States, 116
S. Ct. 1737, 1743 (1996) ("[e]ven when a branch does not
arrogate power to itself, ... the separation-of-powers doc-
trine requires that a branch not impair another in the perfor-
mance of its constitutional duties"). If it does, the constitu-
tional 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 decision-
making. Given the President's dependence on presidential
advisors and the inability of the deliberative process privilege
to provide advisors 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 communications made by presidential advis-
ors in the course of preparing advice for the President come
under the presidential communications privilege, even when
these communications are not made directly to the President.
Given the need to provide sufficient elbow room for advisors
to obtain information from all knowledgeable sources, the
privilege must apply both to communications which these
advisors solicited and received from others as well as thosethey authored themselves. The privilege must also extend to
communications authored or received in response to a solicita-
tion by members of a presidential advisor's staff, since in
many instances advisors must rely on their staff to investi-
gate an issue and formulate the advice to be given to the
President. We are aware that such an extension, unless
carefully circumscribed to accomplish the purposes of the
privilege, could pose a significant risk of expanding to a large
swath of the executive branch a privilege that is bottomed on
a recognition of the unique role of the President. 21 In order
to limit this risk, the presidential communications privilege
should be construed as narrowly as is consistent with ensur-
ing that the confidentiality of the President's decisionmaking
process is adequately protected. Not every person who plays
a role in the development of presidential advice, no matter
how remote and removed from the President, can qualify for
the privilege. In particular, the privilege should not extend
to staff outside the White House in executive branch agencies.
Instead, the privilege should apply only 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 the President on the particular matter to
which the communications relate. Only communications at
that level are close enough to the President to be revelatory
of his deliberations or to pose a risk to the candor of his
advisors. See AAPS, 997 F.2d at 910 (it is "operational
proximity" to the President that matters in determining
whether "[t]he President's confidentiality interest" is impli-
cated) (emphasis omitted).
Of course, the privilege only applies to communications that
these advisors and their staff author or solicit and receive in
the course of performing their function of advising the Presi-dent on official government matters. This restriction is
particularly important in regard to those officials who exer-
cise substantial independent authority or perform other func-
tions 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, 65 U.S.L.W. 3572 (U.S. May
27, 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
advisors, 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 non-
delegable Presidential power. 22 In many instances, presiden-
tial powers and responsibilities, for example the duty to take
care that the laws are faithfully executed, can be exercised or
performed without the President's direct involvement, pursu-
ant to a presidential delegation of power or statutory frame-
work. Cf. Morrison, 487 U.S. at 691 -92 (requirement that
Independent Counsels can be removed only for good cause is
not an unconstitutional restriction on the President's powers).But the President himself must directly exercise the presi-
dential power of appointment or removal. As a result, in this
case there is assurance that even if the President were not a
party to the communications over which the government is
asserting presidential privilege, these communications none-
theless are intimately connected to his presidential decision-
making. In addition, confidentiality is particularly critical in
the appointment and removal context; without it, accurate
assessments of candidates and information on official miscon-
duct may not be forthcoming. See, e.g., Wash. L. Found. v.
Department of Justice, 691 F. Supp. 483, 495 (D.D.C. 1988),
aff'd sub nom. Public Citizen v. Department of Justice, 491
U.S. 440 (1989) (underscoring the "unique need for confiden-
tiality" in the President's appointment of federal judges).
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 proceed-
ings. 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 advisors 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 overcomethe privilege.
Nixon, GSA, Sirica, and the other Nixon cases all em-
ployed a balancing methodology in analyzing whether, and in
what circumstances, the presidential communications privi-
lege can be overcome. Under this methodology, these opin-
ions 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 privi-
lege 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 confi-
dentiality 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 specifi-
cally 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 communica-
tions 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 . What
the Court meant by a "demonstrated, specific need" is debat-
able. Compare Cox, supra, at 1414-15 ("[t]he critical test
[under Nixon ] is probably relevance and admissibility") with
Freund, supra, at 31 ( Nixon appears to require "a stronger
showing of need" than just relevancy). After setting forth
this need standard, the Court tersely commented that "[o]n
the basis of our examination of the record we are unable to
conclude that the District Court erred" in finding that the
Watergate Special Prosecutor had made a sufficient showing
of need to overcome the presidential privilege; it never
explained what parts of the record led it to this conclusion.
Id. at 714. The only occasion where the Court discusses in
any detail the showing of need that the Special Prosecutor
actually made comes in its analysis of whether the subpoenasatisfied Federal Rule of Criminal Procedure 17(c), which
governs all subpoenas for documents and materials made in
criminal proceedings. The Court concluded that the subpoe-
na met Rule 17(c)'s tripartite requirement of relevancy, ad-
missibility and specificity; the Special Prosecutor's support-
ing materials, which listed the date, time and participants in
the conversations sought and provided testimony regarding
the content of some conversations, established "a sufficient
likelihood that each of the tapes contains conversations rele-
vant to the offenses charged in the indictment" and that these
conversations would be admissible. Id. at 700. The Nixon
Court's failure to elaborate on the demonstrated, specific
need standard or provide any further analysis of the Special
Prosecutor's showing led one judge to comment that to
overcome presidential privilege "the Court does not appear to
have meant anything more than the showing that satisfied
Rule 17(c)." North, 910 F.2d at 952 (Silberman, J., concur-
ring in part and dissenting in part). Further, the Court
offered varying characterizations of when the presidential
communications privilege would be overcome, at one juncture
suggesting the privileged material must be " 'essential to the
justice of the [pending criminal] case,' " Nixon, 418 U.S. at
713 (quoting Burr, 25 Fed. Cas. at 192), and at others simply
that the material must be "preliminarily shown to have some
bearing on the pending criminal cases." Nixon, 418 U.S. at
713; see also id. at 712 n.19 (referring to the "constitutional
need for relevant evidence) (emphasis added).
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 over-
coming 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 confidentialconversations between a President and his close advisors."
418 U.S. at 703 (internal quotations omitted); see also id. at
713-14 (distinguishing between inquiry into whether a sub-
poena 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 accu-
rate judicial determination; such a view simply is incompati-
ble 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 stan-
dard 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 con-
tains important evidence; and second, that this evidence is
not available with due diligence elsewhere. The first compo-
nent, 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
represents mere speculation. See, e.g., Nixon, 418 U.S. at
699-700; United States v. Arditti, 955 F.2d 331, 345-46 (5th
Cir. 1992); Ehrlichman, 559 F.2d at 75-76. But to the extent
that Rule 17(c) allows a defendant to subpoena evidence that
would be only tangentially relevant or would relate to side
issues, the first component of the need standard would come
into play. See, e.g., Nixon, 418 U.S. at 701 ("Generally, the
need for evidence to impeach witnesses is insufficient to
require its production in advance of trial."); Bowman Dairy
Co. v. United States, 341 U.S. 214, 219 (1951) (materials can
be reached under Rule 17(c) "as long as they are evidentia-
ry"); In re Martin Marietta Corp., 856 F.2d 619, 622 (4th
Cir. 1988) (upholding subpoena on grounds that materials
were "clearly of evidentiary value"). The second component,
unavailability, reflects Nixon 's insistence that privileged pres-
idential communications should not be treated as just anothersource of information. See North, 910 F.2d at 952 n.29
(Silberman, J., concurring in part and dissenting in part)
(acknowledging that one possible difference between the
showing necessary to satisfy Rule 17(c) and Nixon 's need
standard is that the latter "would also require a showing that
the evidence is unavailable from any source other than the
President"). Efforts should first be made to determine
whether sufficient evidence can be obtained elsewhere, and
the subpoena's proponent should be prepared to detail these
efforts and explain why evidence covered by the presidential
privilege is still needed. Of course, there will be instances
where such privileged evidence will be particularly useful, as
when, unlike the situation here, an immediate White House
advisor is being investigated for criminal behavior. In such
situations, the subpoena proponent will be able easily to
explain why there is no equivalent to evidence likely con-
tained in the subpoenaed materials. Finally, while our view
of the Nixon need standard is derived from the opinion's
language and a common-sense understanding of "need," it is
worth noting that the factors of importance and unavailability
are also used by courts in determining whether a sufficient
showing of need has been demonstrated to overcome other
qualified executive privileges, such as the deliberative process
privilege or the law-enforcement investigatory privilege. See
In re Comptroller of the Currency, 967 F.2d at 634; Fried-
man, 738 F.2d at 1342.
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 func-
tion 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 (1991);
accord Branzburg v. Hayes, 408 U.S. 665, 688 (1971). Re-
quiring grand jury subpoenas to comply with the same re-
quirements of relevancy, admissibility, and specificity under
Rule 17(c) as applies to trial subpoenas would impose animpossible burden on the grand jury, create untoward delays,
and threaten the secrecy of grand jury proceedings. R.
Enters., 498 U.S. at 299 . 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 possibili-
ty 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.
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 subpoe-
na 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 presiden-
tial 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 reads Sirica as
establishing a significantly less demanding need standard
than Nixon, and argues that this differential is justified in
light of R. Enterprises ' insistence that a grand jury subpoena
is not held to the same standards as a trial subpoena.
According to the OIC, Sirica merely requires that the grand
jury demonstrate the evidence it seeks is directly relevant to
its investigation in order to overcome the President's claim of
privilege.
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 thePresident's claim of privilege "must fail in face of the unique-
ly 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 character-
ized 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 sub-
poenaed 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 equiva-
lent 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 com-
ments 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 amuch 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 proceed-
ings as elsewhere, even as it held that this principle "is
particularly applicable to grand jury proceedings." Branz-
burg, 408 U.S. at 688 (ellipsis omitted); see also United States
v. Calandra, 414 U.S. 338, 344 , 346 (1974) (while grand jury is
"accorded wide latitude," "the grand jury's subpoena power is
not unlimited" and "[j]udicial supervision is properly exer-
cised" 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 advisors is both important to its
investigation and practically unavailable elsewhere. As was
true in Sirica, a grand jury will often be able to specify its
need for withheld evidence in reasonable detail based on
information obtained from other sources. And if it has
difficulty in obtaining evidence from other sources, this fact in
and of itself will go far toward satisfying the need require-
ment. Although any showing of need has the potential of
undercutting the secrecy of grand jury proceedings, a district
court can ensure that such secrecy is protected by provisions
for sealed, or when necessary ex parte, filings.
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 con-
straints 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. at298. 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 com-
munications are either authored or received in response to a
solicitation by presidential advisors in the course of gathering
information and preparing recommendations on official mat-
ters 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 investi-
gating and formulating the advice to be given to the Presi-
dent 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 demon-
strate why it is likely that evidence contained in presidential
communications is important to the ongoing grand jury inves-
tigation and why this evidence is not available from another
source.
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 demon-
strated a sufficient showing of need to obtain certain informa-
tion 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
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 investiga-
tion. There are also notes of meetings and phone conversa-
tions, lists of information on Espy, and press briefings on
Espy. Most of the documents were authored by two associ-
ate White House Counsels, a few were authored by top
presidential advisors, 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 House Counsel's office.
Many of the documents were sent to the White House
Counsel or Deputy White House Counsel, or represent notes
taken from meetings at which these top advisors and others
were present. A sizeable number, however, were either
authored by the two associate White House Counsels and not
disseminated or sent only to them by others. All of the
documents relate to the investigation of Espy that the Presi-
dent asked the White House Counsel to undertake.
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 advisors were present, since these notes reflect
these advisors' 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 advisor's staff when the staff mem-ber 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 Counsels exercised broad and significant re-
sponsibility 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 with-
held 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
Counsels 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 Counsels with broad and significant responsibility for
the Espy investigation. These documents relate to operation-
al details of the Espy investigation. Clearly, if these docu-
ments were solicited by the Deputy White House Counsel and
the associate White House Counsel, they would be also cov-
ered 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 theywere 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 advisors that do not
directly involve the President, we believe it would be unrealis-
tic to expect the White House to have foreseen the need to
specifically demonstrate that the documents had been solic-
ited.
In sum, we conclude that all of the documents withheld by
the White House here are subject to the presidential commu-
nications privilege. As a result, we need not determine
whether the documents would qualify for the deliberative
process privilege. 23
B.
The OIC's Demonstration of Need 24
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 Presi-
dent must turn over privileged materials for in camera
review, whereupon the court reviews the materials and deter-
mines 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 districtcourt 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 confiden-
tiality 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 ; Sirica, 487 F.2d at
719-21. Nixon makes clear that the court determined what
evidence could be of use to the subpoena proponent byisolating 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. 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. Enters.,
498 U.S. at 298 , 301. 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 deter-
mine whether the OIC made out a sufficient showing of need
to obtain in camera review of the documents. Although
Nixon established that a President is allowed to immediately
appeal an order requiring production of subpoenaed materials
for in camera review, the general rule is that an order
requiring production of evidence for in camera review "is not
final and hence not appealable." Nixon, 418 U.S. at 691 ;
accord Church of Scientology v. United States, 506 U.S. 9, 18
n.11 (1992); Kessler, 100 F.3d at 1016-17. Since the provi-
sion for immediate appeal by a President is an exception
created because "[t]o require a President of the United States
to place himself in the posture of disobeying an order of a
court merely to trigger the procedural mechanism for review
of the ruling would be unseemly," Nixon, 418 U.S. at 691 -92,
we believe that the White House should not be penalized
because it waited until the district court issued its final ruling
on the OIC's motion to compel. To rule otherwise would
foster a proliferation of piecemeal appeals in cases implicating
the presidential communications privilege. Moreover, both
the OIC and the White House have directed their arguments
to the question of whether the OIC made a sufficient demon-stration of need for the withheld documents, and neither
party_nor, it appears, the district court_differentiated be-
tween the standard that applies to the OIC's showing of need
to obtain in camera review and the standard the district
court subsequently applies during in camera review to deter-
mine what material should be released.
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
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 demon-
strating 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 under-
standably reluctant to detail the witnesses it has interviewedso 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 inter-
viewed attorneys at USDA and if so whether any one of them
admitted to having conversations with the White House Coun-
sel'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 investi-
gation, it provides no basis on which we could conclude that
this is in fact the case. We also note that the subpoena for
the documents generated in compiling the White House
Counsel's report was issued just three days after the report
was released and five weeks after the OIC was appointed. In
the face of this timing, it is hard to conclude that the OIC
issued its subpoena to the White House as a last resort.
Nonetheless, it is possible that the OIC might be able to
provide a sufficient justification for obtaining factual informa-
tion 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 infor-
mation contained in the withheld documents. If the district
court determines that the OIC's demonstration of need satis-
fies the Nixon / Sirica standard, the court should review thedocuments 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 docu-
ments 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's second argument of need for evidence in the
subpoenaed documents is sufficient to obtain in camera re-
view; the OIC has demonstrated that it is likely the subpoe-
naed documents contain important evidence that is not avail-
able elsewhere. On in camera review, the district court
should isolate and release all evidence that might reasonably
be relevant to the question [
]
We therefore hold that the OIC has demonstrated suffi-
cient need in order to overcome the presidential communica-
tions privilege in regard to evidence of [
] andthat 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
[ ] 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.
V. Conclusion
This case forces us to engage in the difficult business of
delineating the scope and operation of the presidential com-
munications privilege. In holding that the privilege extends
to communications authored by or solicited and received by
presidential advisors 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, howev-
er, 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 opin-
ion.
Another document was initially withheld on grounds of attorney
work product privilege, but has since been released.
It is clear from the briefs and oral argument in this case, as well
as the district court's opinion, that by "executive privilege" the
White House is referring to the privilege that attaches to confiden-
tial presidential communications. However, as we discuss below, see
infra Part I.B, "executive privilege" is generally used to refer to a
For a listing of the different forms of executive privilege sanc-
tioned by courts, see Gerald Wetlaufer, Justifying Secrecy: An
Objection to the General Deliberative Privilege, 65 Ind. L.J. 845, 845
n.3 (1990); see generally Murl A. Larkin, Federal Testimonial
Privileges §§ 5 to 7 (1996); 3 Weinstein's Federal Evidence
§§ 509-10 (Joseph M. McLaughlin, ed., 2d ed. 1997).
Some aspects of the privilege, for example the protection ac-
corded the mental processes of agency officials, see United States v.
Morgan, 313 U.S. 409, 421-22 (1941), have roots in the constitution-
al separation of powers. See 3 Weinstein's Federal Evidence
§ 509.21[3] at 509-16.
This characteristic of the deliberative process privilege is not an
issue in FOIA cases because the courts have held that the particu-
lar purpose for which a FOIA plaintiff seeks information is not
relevant in determining whether FOIA requires disclosure. See
Sears, 421 U.S. at 149 n.16; Mink, 410 U.S. at 86 ; see also
Department of Justice v. Reporters Comm'ee for Freedom of the
Marshall's conclusion was presaged by the argument before the
Court, where then-Attorney General and former Secretary of State
Levi Lincoln had resisted testifying about the whereabouts of
Marbury's commission on the grounds that such information was an
official secret he had learned in his position as Secretary of State.
The Court had responded that "[t]here was nothing confidential to
be disclosed. If there had been he was not obliged to answer it ...
but that the fact whether such commissions had been in the office
or not, could not be a confidential fact." Marbury, 5 U.S. (1
Cranch) at 144.
Jefferson then proceeded to transmit a copy of the letter
identifying portions he believed should be deleted to Hay. But
since Burr was again acquitted, he did not seek production of the
letter until a third set of proceedings, these on the issue of whether
he should be committed to custody for trial in Ohio on other
charges. Ruling from the bench, Marshall denied Burr's request
for the letter, stating "[a]fter such a certificate from the president
of the United States as has been received, I cannot direct the
production of those parts of the letter, without sufficient evidence of
their being relevant to the present prosecution." Freund, supra, at
29. Marshall instead held that the deleted portions could be
inferred to support Burr. Id. at 30. Although Marshall never
definitively ruled on the President's claims of privilege, his decision
to issue the subpoena against President Jefferson has had lasting
significance in establishing that "the President is subject to judicial
process in appropriate circumstances." Clinton v. Jones, No.
95-1853, 1997 WL 273679 at *12 & n.38.
Two cases, Mink and Soucie v. David, 448 F.2d 1067 (D.C. Cir.
1971), involved reports that were prepared pursuant to a presiden-
tial request and reviewed by the President, but in both cases the
courts viewed the privilege claim at issue as being simply an
assertion of the general deliberative process privilege, embodied in
exemption five of the Freedom of Information Act, rather than a
distinct privilege for presidential communications. See Mink, 410
U.S. at 91-93; Soucie, 448 F.2d at 1071-72, 1075-78.
See, e.g., Robert Kramer & Herman Marcuse, Executive Privi-
lege_A Study of the Period 1953-1960: Part I, 29 Geo. Wash. L.
Rev. 623, 682-87, 692-93 (1961) (describing President Eisenhower's
refusal to allow any executive branch officers to reveal to Congress
internal deliberations on official matters). Although scholars dis-
pute how often Presidents have actually refused to provide Con-
gress with information on grounds of executive privilege, debate
over the President's ability to withhold confidential information
from Congress has occurred since the early years of our nation,
when President George Washington discussed with his cabinet in
1792 how to respond to a congressional inquiry into the military
misfortunes that beset General St. Clair's expedition. See Archi-
bald Cox, Executive Privilege, 122 U. Pa. L. Rev. 1383, 1395-1405
(1974); see generally Raoul Berger, Executive Privilege: A Con-
stitutional Myth (1974); Adam C. Breckenridge, The Executive
Privilege: Presidential Control Over Information (1974); Daniel
N. Hoffman, Governmental Secrecy and the Founding Fathers: A
Study in Constitutional Controls (1981); Mark J. Rozell, Execu-
tive Privilege: The Dilemma of Secrecy and Democratic Accounta-
bility (1994). Interestingly, it appears that Congress has at times
accepted executive officers' refusal to testify about conversations
they had with the President, even as it was insisting on access to
other executive branch documents and materials. See, e.g., Rozell,
supra, at 44; Robert Kramer & Herman Marcuse, Executive
Privilege_A Study of the Period 1953-1960: Part II, 29 Geo. Wash.
L. Rev. 827, 872-73 (1961). A very early instance of such a refusal
by an executive officer came in the course of the House's investiga-
tion into why Alexander Hamilton had deposited into the Bank of
the United States certain funds intended to pay off foreign debt.
The House sought to know Hamilton's authority for this act, to
which Hamilton replied that he would not provide any instructions
President Washington had given him, because "[t]hat question
must, then, be a matter purely between the President and the
agent, not examinable by the Legislature." Hoffman, supra, at
122. However, the House rejected the claim of privilege, and
Hamilton eventually provided the material sought. Id. at 118-24.
It appears that the courts have been drawn into executive-
congressional disputes over access to information on only three
recent occasions. These were: United States v. AT&T , 551 F.2d
384 (D.C. Cir. 1976), appeal after remand, 567 F.2d 121 (D.C. Cir.
1977); Senate Select Comm'ee on Presidential Campaign Activities
v. Nixon ( Senate Committee ), 498 F.2d 725 (D.C. Cir. 1974);
United States v. House of Representatives, 556 F. Supp. 150
(D.D.C. 1983).
See supra note 2.
The Court implied, however, that particularized claims of privi-
lege for military and state secrets would be close to absolute, and
expressly held only that the presidential communications privilege,
which is based only on a generalized interest in confidentiality, can
be overcome by an adequate showing of need. See Nixon, 418 U.S.
at 710-11, 713.
The operation of the presidential communications privilege was
addressed in a few other criminal cases. In United States v.
Haldeman, 559 F.2d 31 (D.C. Cir. 1976), and United States v.
Ehrlichman, 546 F.2d 910 (D.C. Cir. 1976), John Ehrlichman, an
assistant to President Nixon, challenged his convictions stemming
from the Watergate investigation on the grounds that the district
court had improperly denied requests for information in White
House files. However, in neither case is there any significant
discussion of the privilege, because Ehrlichman had failed "to argue
with specificity the materiality and reasonableness of his discovery
request" and thus would have not been entitled to access to this
evidence under Rule 17(c) of the Federal Rules of Criminal Proce-
dure even if it were not presumptively privileged. Ehrlichman, 546
F.2d at 931-32; see also Haldeman, 559 F.2d at 76-77. In United
States v. Poindexter, 727 F. Supp. 1501 (D.D.C. 1989) and United
States v. North, 713 F. Supp. 1448 (D.D.C. 1989), two prosecutions
arising out of the Iran-Contra investigation, former National Secu-
rity Advisor John Poindexter and Lieutenant Colonel Oliver North
subpoenaed President Reagan to testify about conversations; Poin-
dexter also subpoenaed President Reagan's diaries. Although in
both cases the courts noted that the subpoenas implicated the
presidential communications privilege, they only addressed the
question of whether the subpoenas satisfied Rule 17(c). Poindex-
ter's initial conviction was reversed by this court on other grounds,
United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1991), and
President Bush subsequently pardoned Poindexter, thus forestalling
further appellate review of the district court's order in his case.
This court held that any error in the district court's refusal to
subpoena President Reagan to testify at North's trial was harmless
because there was no indication he would have provided evidence
that was material or favorable to North. As a result, the issue of
presidential privilege was only addressed by Judge Silberman in
dissent. United States v. North, 910 F.2d 843, 888-92 & n.25 (D.C.
Cir.), vacated in part, 920 F.2d 940 (D.C. Cir. 1990); id. at 932, 950-
54 (Silberman, J., concurring in part and dissenting in part).
The presidential communications privilege also surfaced in the
district court's opinion in Wayte v. United States, which later was
appealed to the Supreme Court. Wayte alleged that the govern-
ment's enforcement policy on military draft registration require-
ments was unconstitutional, and sought discovery of presidential
documents and testimony regarding the policy from the White
House Counsel. The Court, however, decided the case on other
grounds, and the only discussion of the presidential privilege is
found in Justice Marshall's dissent. 470 U.S. 598, 614 , 615-23
(1985).
This court subsequently upheld the regulations promulgated by
GSA to govern access to the Nixon materials. See Nixon v.
Freeman, 670 F.2d 346 (D.C. Cir. 1982); see also Nixon v. United
States, 978 F.2d 1269 (D.C. Cir. 1992) (holding that PRMPA acted
as a taking of President Nixon's materials so as to require just
compensation).
In Nixon, Sirica and GSA, President Nixon personally assert-
ed the presidential communications privilege, and thus these cases
do not establish whether the privilege must be invoked by the
President as opposed to a member of his staff. In discussing the
military and state secrets privilege in Reynolds the Supreme Court
stated that "[t]here must be a formal claim of privilege, lodged by
the head of the department which has control over the matter," 345
U.S. at 7-8, which might suggest that the President must assert the
presidential communications privilege personally. See Center on
Corp. Responsibility, Inc. v. Shultz, 368 F. Supp. 863, 872-73
(D.D.C. 1973) (White House Counsel's affidavit indicating that he is
authorized to say that the White House was invoking executive
privilege over tapes and documents in White House files is insuffi-
cient to invoke the privilege); see also Burr, 25 F. Cas. at 192
(ruling that President Jefferson had to personally identify the
passages he deemed confidential and could not leave this determina-
tion to the U.S. Attorney). We need not decide whether the
privilege must be invoked by the President personally, since the
record indicates that President Clinton has done so here; in his
affidavit former White House Counsel Abner J. Mikva stated "the
President ... has specifically directed me to invoke formally the
applicable privileges over those documents." Moreover, although
the OIC challenged the adequacy of the White House's invocation of
privilege before the district court, the OIC did not pursue this issue
on appeal.
In some cases, the White House's ex parte contacts with
outside agencies may be subject to disclosure by statute, see, e.g.,
Portland Audubon Soc'y v. Endangered Species Comm'ee, 984 F.2d
1534, 1543-48 (9th Cir. 1993), but this court has refused to require
disclosure of conversations between an agency and the President or
White House staff, at least where the proceeding was not adjudica-
tory and the statute did not specifically require disclosure, because
of the President's need to oversee executive agencies. See Sierra
Club v. Costle, 657 F.2d 298, 404-08 (D.C. Cir. 1981).
The elements of this showing of need are discussed in greater
detail infra in Part III.C.
Commentators have noted that the Nixon opinion did not
address this question of who qualifies for the privilege. See Raoul
Berger, The Incarnation of Executive Privilege, 22 UCLA L. Rev.
4, 22-26 (1974) (hereinafter Berger, Incarnation ).
In Wolfe v. HHS, 815 F.2d 1527 (D.C.Cir.1987), a panel of this
court held that the privilege did not protect communications of the
Office of Management and Budget that did not involve the Presi-
dent, stating that such an "extension of the presidential privilege
... is unprecedented and unwarranted .... [and] would create an
unnecessary sequestering of massive quantities of information from
the public eye." Id. at 1533. However, the opinion was later
For example, Professor Berger commented on the Nixon deci-
sion: "The real problem is not posed by confidentiality between the
President and his immediate advisors, members of his cabinet and
the like; it arises from the fact that the claim for executive privilege
has sprawled far beyond presidential precincts." Berger, Incarna-
tion, supra, at 23.
The Constitution does not explicitly grant the President the
power to remove executive branch officials, but it is well established
that this power, at least in regard to some officials, can be inferred
from the President's other enumerated powers and responsibilities.
See Morrison, 487 U.S. at 689 -90; Myers v. United States, 272 U.S.
52, 117, 163-64 (1926). While the President's removal power over
some executive branch officials is limited, the President has unquali-
fied power to appoint and remove cabinet officers. See Myers, 272
U.S. at 134 ("[The President's] cabinet officers must do his will....
The moment he loses confidence in the intelligence, ability, judg-
ment, or loyalty of any one of them, he must have the power to
remove him without delay").
The White House has also claimed attorney-client privilege in
regard to Document 19. We do not need to examine this claim
because it is clear, based on our review of this document, that it
should not be released. The document comes under the presiden-
tial communications privilege as it was authored by the President's
Chief of Staff and was sent to the individual acting as White House
Counsel, and contains no information or evidence that could be
relevant to the grand jury's inquiry.
In order to preserve the secrecy of grand jury proceedings,
selected parts of this opinion that relate to the grounds on which we
conclude the OIC has made out an adequate showing of need are
ordered sealed until the OIC files his final report on his investiga-
tion, at which point they will be published. See Fed. R. Crim. P.
6(e).
[ ]
[
]