I. Background
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
On October 14,1994, the grand jury issued the subpoena
duces tecum
at issue in this case. The subpoena seeks all documents on Espy and other subjects of the OIC’s investigation that were “accumulated for, relating in any way to, or considered in any fashion, by
The OIC negotiated with the White House for access to the withheld documents for several months, finally filing a motion to compel production on June 7, 1995. The White House resisted the motion, arguing that the withheld documents came within both the privilege for presidential communications, recognized in
United States v. Nixon,
The OIC appeals from the district court’s decision. The OIC argues that, at a minimum, the district court’s order should be vacated and the matter remanded because the district court failed to provide any account of its reasoning in denying the OIC’s motion to enforce the subpoena. On the merits, the OIC maintains that the district court erred in denying the motion to compel because the White House had waived its claims of privilege by releasing the final White House Counsel’s report, stating it would comply with the subpoena, and unduly delaying in invoking privilege. The OIC further argues that the presidential communications privilege does not apply to the withheld documents because none of the documents was sent to or received from the President; the only document that the President received regarding the Espy investigation was the White House Counsel’s final report, which was publicly released. Alternatively, the OIC claims that even if the withheld
The White House challenges each of these arguments. It insists that it has not waived its claims of privilege and that the withheld documents come under the presidential communications privilege because they were generated in response to the President’s request for advice on whether to retain a cabinet officer, one of the President’s core functions under Article II of the Constitution. The White House also notes that the deliberative privilege would apply to the documents in their entirety because the factual material in the documents is inseparable from the documents’ deliberative portions. The White House contends that the same standard of need applies when the presidential privilege is raised in response to a grand jury subpoena as when a criminal trial subpoena is involved, and the OIC has failed to demonstrate a sufficient need to justify release under either the presidential privilege or the deliberative process privilege. Finally, the White House maintains that, since the district court reviewed the documents in camera, it provided sufficient explanation for its decision to deny the motion to compel even though it did not discuss the documents individually.
B. Legal Background: On Executive Privilege Generally and the Deference Due to the District Court
Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist disclosure of information the confidentiality of which they felt was crucial to fulfillment of the unique role and responsibilities of the executive branch of our government. Courts ruled early that the executive had a right to withhold documents that might reveal military or state secrets.
See United States v. Reynolds,
The most frequent form of executive privilege raised in the judicial arena is the deliberative process privilege; it allows the government to withhold documents and other materials that would reveal “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”
Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena,
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-ease, ad hoe basis. “[E]ach time [the deliberative process privilege] is asserted the district court must undertake a fresh balancing of the competing interests,” taking into account factors such as “the relevance of the
Although executive privilege in general is no stranger to the courtroom, one form of the executive privilege is invoked only rarely and that is the privilege to preserve the
In neither instance, however, was Marshall forced to definitively decide whether such a presidential privilege existed and if so, in what form. In
Marbury,
Marshall found that the question of whether a commission as justice of the peace had been issued was a matter of legal and public record, not a confidential cabinet matter, setting the stage for the Court’s pronouncement there that “[i]t is, emphatically, the province and duty of the judicial department, to say what the law is.”
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 information and documents figured more promi
In this case, the White House is asserting both the deliberative 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,
Here, the district court provided no explanation of its denial of the motion to compel. The denial took the form of a blan
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 publicly released the White House Counsel’s report, issued a press statement indicating it would comply with the OIC’s subpoena, and did not formally invoke privilege until after the OIC filed a motion to compel. Only after the briefs in this appeal were submitted did the White House inform us that it had provided Espy’s counsel with a document nearly identical to one of the withheld documents, document 68, the only difference being that document 63 contained certain handwritten notations that the released version lacked. The OIC argues that the release of document 63 is further evidence of a privilege waiver.
We do not credit the OIC’s arguments for waiver. The White House press statement did not explicitly declare that the White House would forego any and all claims of privilege that might apply to the documents. Instead, it described the documents sought in the subpoena and noted “[t]he subpoena requires that documents be produced on November 10, 1994. The White House will comply.” The OIC agreed to extend the return date of the subpoena to November 17, and on that date the White House did in fact produce several folders of documents.
Nor did the White House have an obligation to formally invoke its privileges in advance of the motion to compel. In its response to the subpoena, the White House informed the OIC that it believed the withheld documents were privileged, thus satisfying Rule 45(e)(2)(B) and Rule 45(d)(2) of the Federal Rules of Civil Procedure, which together require that “a party objecting to a subpoena on the basis of privilege must both (1) object to the subpoena and (2) state the claim of privilege within [the stipulated period] of service.”
Tuite,
The White House’s release of the White House Counsel’s final report also does not constitute waiver of any privileges attaching to the documents generated in the course of producing the report. It is true that voluntary disclosure of privileged material subject to the attorney-client privilege to unnecessary third parties in the attorney-client privilege context “waives the privilege, not only as to the specific communication disclosed but often as to all other communications relating to the same subject matter.”
In re Sealed Case,
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 documеnts that
In sum, with the exception of document 63 we find that the White House has not waived its privileges as to the withheld documents. We therefore proceed to determine the merits of the White House’s claims of privilege.
III. The Presidential Communications Privilege
Judicial discussion of the presidential communications privilege exploded in the early to mid-1970s when the investigation into the Watergate break-in uncovered the fact that President Nixon had made, and still had in his possession, tape recordings of his conversations in the Oval Office and other locales. This revelation led the Watergate Special Prosecutor to subpoena the tapes for use in the criminal investigation of the break-in. President Nixon asserted the presidential communications privilege in response, and also in several subsequent lawsuits that sought access to the tapes and other presidential materials generated by his administration. These lawsuits, referred to generically as the
Nixon
cases, remain a quarter century later the leading — if not the only—
A. The Nixon Cases and the General Contours of the Presidential Communications Privilege
We first addressed President Nixon’s assertion of the presidential privilege over the Watergate tapes in
Sirica. Sirica
involved a subpoena for nine tapes issued by the grand jury investigating the Watergate break-in. The district court had ordered President Nixon to produce the tapes for
in camera
review, and on appeal we affirmed that decision, stating that “application of Executive privilege depends on a weighing of the public interest protected by the privilege against the public interests that would be served by disclosure in a particular case.”
President Nixon did not appeal our decision in
Sirica,
and thus it was not until a year later, in
Nixon,
that the question of whether an executive privilege of confidentiality for presidential communications existed reached the Supreme Court.
Nixon
concerned a subpoena issued' by the Watergate Special Prosecutor for additional tapes, this
The
Nixon
Court explicitly limited its ruling to demands for presidential materials relevant to a criminal trial, stating “[w]e are not here concerned with the balance between the President’s generalized interest in confidentiality and the need for relevant evidence in civil litigation, nor with that between the confidentiality interest and congressional demands for information.”
Id.
at 712 n. 19,
The Supreme Court had its next encounter with the presidential communications privilege in
Nixon v. Administrator of General Services
(GSA), which concerned the operation of the privilege in the context of congressional legislation.
14
Congress enacted
The
Nixon
cases establish the contours of the presidential communications privilege. The President can invoke the privilege when asked to produce documents or other materials that reflect presidential decisionmaking and deliberations and that the President believes should remain confidential. If the President does so, the documents become presumptively privileged.
16
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
In addition, unlike the deliberative process privilege, the presidential communications privilege applies to documents in their entirety, and covers final and postdecisional materials as well as pre-deliberative ones. Even though the presidential privilege is based on the need to preserve the President’s access to candid advice, none of the cases suggest that it encompasses only the deliberative or advice portions of documents. Indeed,
Nixon
argued that the presidential privilege must be qualified to ensure full access to facts in judicial proceedings, thereby assuming that factual material comes under the privilege.
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 ease, and must specifically consider the need of the party seeking privileged evidence. But this balancing is more ad hoc in the context of the deliberative process privilege, and includes consideration of additional factors such as whether the government is a party to the litigation. Moreover, the privilege disappears altogether when there is any reason to believe government misconduct occurred. On the other hand, a party seeking to overcome the presidential privilege seemingly must always provide a focused demonstration of need, even when there are allegations of misconduct by
These differences between the presidential communications privilege and the deliberative privilege demonstrate that the presidential privilege affords greater protection against disclosure. Consequently, should we conclude as to any document that the presidential privilege applies but that the OIC has demonstrated a sufficient showing of need, there is no reason to examine whether the documents also come under the deliberative process privilege. A fortiori, if release is required under the presidential privilege, it will certainly be required under the deliberative process privilege. Hence, we would need to address application of the deliberative process privilege as to any document only if we determine that the withheld document is not subject to the presidential privilege.
B. How Far Down the Line Does the Presidential Communications Privilege Go?
The withheld documents in this case include materials used in the investigation and formulation of several earlier drafts of the White House Counsel’s report, notes of meetings among White House advisers, and draft press briefings. It is undisputed that none of these documents was actually viewed by the President. As a result, the key issue in this case is whether any, and if so which, оf these documents come under the presidential communications privilege. Does the privilege only extend to direct communications with the President, or does it extend further to include communications that involve
Most of the
Nixon
cases involved subpoenas for tapes of conversations in which President Nixon was a participant, and did not call upon the courts to determine whether the presidential privilege also covered communications in which the President did not directly participate.
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,”
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.”
A ease that did directly touch on the question of how far down the line the presidential communications privilege extends was
Association of American Physicians and Surgeons v. Clinton (AAPS). AAPS
involved an effort to enjoin President Clinton’s Task Force on National Health Care Reform and its subgroups from meeting unless they complied with the Federal Advisory Committee Act (FACA). In holding that FACA’s exemption for advisory groups composed solely of officers or employees of the government applied to the Task Force even though it was chaired by the President’s wife, Hillary Rod-ham Clinton, this court commented that an interpretation of FACA as covering a Task Force that reports directly to the President might well represent an unconstitutional intrusion on the presidential communications privilege. This privilege, we argued, “attaches not only to direct communications with the President, but also to discussions between his senior advisers[, who] ... must be able to hold confidential meetings to discuss advice they secretly will render to the President.”
There are acknowledgedly strong arguments in favor of holding that the presidential communications privilege applies to only those communications that directly involve the President. This approach comports with the principle that “the President’s unique status under the Constitution distinguishes him from other executive officials,”
Fitzgerald,
An additional reason to restrict the presidential communications privilege to direct communications with the President is the general rule, underscored by the Supreme Court in
Nixon,
that privileges should be narrowly construed: “exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.”
Extending presidential privilege to the communications of presidential advisers not directly involving the President inevitably creates the risk that a broad array of materials in many areas of the executive branch will become “sequester[ed]” from public view.
Wolfe,
[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,
But a very powerful case can also be made for extending the presidential communications privilege beyond those materials with which the President is “personally familiar,” and at the end of the day we find the arguments for a limited extension of the privilege beyond the President to his immediate advisers more convincing.
Nixon
does not specifically establish how far down the chain of
Presidential advisers do not explore alternatives only in conversations with the President or pull their final advice to him out of thin air — if they do, their advice is not likely to be worth much. Rather, the most valuable advisers will investigate the factual context of a problem in detail, obtain input from all others with significant expertise in the area, and perform detañed analyses of several different policy options before coming to closure on a recommendation for the Chief Executive. The President himself must make decisions relying substantially, if not entirely, on the information and analysis supplied by advisers. “Even the most sensitive issues of national security must be brought to the point of presidential decision by staff, who assemble data and views, and then winnow and shape them for the President.” Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 661 (1984). In the vast majority of cases, few if any of the documents advisers generate in the course of their own preparation for rendering advice to the President, other than documents embodying their final recommendations, wül ever enter the Oval Office. Yet these pre-deeisional documents are usually highly revealing as to the evolution of advisers’ positions and as to the different policy options considered along the way. If these materials are not protected by the presidential privfiege, the President’s access to candid and informed advice could well be significantly circumscribed.
The protection offered by the more general deliberative process privilege will often be inadequate to ensure that presidential advisers provide knowledgeable and candid advice, primarily because the deliberative process privfiege 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.”
The greater ease with which the deliberative process privilege can be overcome is another reason to doubt its efficacy in ensuring candid presidential advice. In
Nixon
the Supreme Court recognized that some possibility of disclosure is unlikely to affect the advice the President receives, stating “we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure [that might occur if their] ... conversations will be called for in the context of a criminal prosecution.”
The ultimate question is whether restricting the presidential communications privilege to communications that directly involve the President will “impede the President’s ability to perform his constitutional duty.”
Morrison v. Olson,
We believe therefore that the public interest is best served by holding that
Of course, the privilege only applies to communications that these advisers and their staff author or solicit and receive in the course of performing their function of advising the President on official government matters. This restriction is particularly important in regard to those officials who exercise substantial independent authority or perform other functions in addition to advising the President, and thus are subject to FOIA and other open government statutes.
See Armstrong v. Executive Office of the President,
In this case the documents in question were generated in the course of advising the President in the exercise of his appointment and removal power, a quintessential and nondelegable Presidential power.
22
In many instances, presidential powers
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
C. Standard of Need
The question of whether the presidential communications privilege applies to communications that do not involve the President is only the first issue we must resolve before turning to an application of the privilege here. We must also determine what type of showing of need the OIC must make in defense of the grand jury subpoena in order to overcome the privilege.
Nixon, GSA, Sirica, and the other Nixon cases all employed a balancing methodology in analyzing whether, and in what circumstances, the presidential communications privilége can be overcome. Under this methodology, these opinions balanced the public interests served by protecting the President’s confidentiality in a particular context with those furthered by requiring disclosure. Since Nixon and Sirica clearly establish that the presidential communications privilege can be overcome by a sufficient showing that subpoenaed evidence is needed for a criminal judicial proceeding, our task is not to weigh anew the public interest in preserving confidentiality against the public interest in assuring fair trials and enforcing the law. Rather, our task is to determine precisely what guidance these cases provide on what counts as a sufficient showing of need in our situation, and more specifically to clarify whether there is any difference between the need standard this court established in Sirica in regard to a grand jury subpoena and the standard articulated by the Supreme Court one year later in Nixon for a criminal trial subpoena.
At the end of its discussion of the presidential communications privilege in
Nixon,
the Supreme Court stated that the privilege “must yield to the demonstrated, specific need for evidence in a pending criminal trial.”
It would be strange indeed if
Nixon
required nothing more to overcome presidential privilege than the initial showing of relevancy, admissibility and specificity necessary to satisfy Rule 17(c) in all cases, even in cases where no claim of privilege is raised. If this were true, the privilege would have no practical benefit. That the
Nixon
Court believed overcoming the presidential privilege required something more than the ordinary Rule 17(c) showing is apparent from its statement, made at the outset of the discussion of presidential privilege, that “[h]aving determined that the requirements of Rule 17(c) were satisfied, we turn to the claim that the subpoena should be quashed because it demands confidential conversations between a President and his close advisers.”
We conclude that
Nixon’s
demonstrated, specific need standard has two components. A party seeking to overcome a claim of presidential privilege must demonstrate: first, that each discrete group of the subpoenaed materials likely contains important evidence; and second, that this evidence is not available with due diligence elsewhere. The first component, likelihood of containing important evidence, means that the evidence sought must be directly relevant to issues that are expected to be central to the trial. In practice, this component can be expected to have limited impact, since Rule 17(c) precludes use of a trial subpoena to obtain evidence that is not relevant to the charges being prosecuted or where the claim that subpoenaed materials will contain such evidence
Nixon,
however, involved a trial subpoena; what we have here is a grand jury subpoena. In a
post-Nixon
decision,
United States v. R. Enterprises, Inc.,
the Court emphasized that the unique function of the grand jury fundamentally differentiates its subpoenas from trial subpoenas. “The function of the grand jury is to inquire into all information that might possibly bear on its investigation, ... [and a]s a necessary consequence of its investigatory function, the grand jury paints with a broad brush.”
But then again,
R. Enterprises
concerned a challenge to a grand jury subpoena only on grounds of relevance; it does not govern a case, such as this, where the grand jury subpoena is being resisted on grounds of privilege. Instead, the case most directly on point in this respect is
Sirica,
where this court was specifically confronted with a claim of presidential communications privilege raised against a grand jury subpoena. The OIC does not appear to dispute that
Sirica
is the governing case here; instead, the OIC
The OIC’s position represents too selective a reading of
Sirica.
To be sure, at times in that opinion we used language suggesting the required demonstration was only that the materials sought were “directly relevant” to the grand jury’s inquiry. For example, we commented that “[t]he exception that we have delineated to the President’s confidentiality privilege depends entirely on the grand jury’s showing that the evidence is
directly relevant
to its decisions.”
In this instance, we agree with the White House that the
Sirica
need standard which governs grand jury subpoenas is no more lenient than the need standard enunciated for trial subpoenas in
Nixon.
In both situations, to overcome the presidential privilege it is necessary to demonstrate with specificity why it is likely that the subpoenaed materials contain important evidence and why this evidence, or equivalent evidence, is not practically available from another source.
See In re Grand Jury Subpoena,
Nor do we believe the
Nixon/Sirica
need standard imposes too heavy a burden on grand jury investigation. In practice, the primary effect of this standard will be to require a grand jury to delay subpoenaing evidence covered by presidential privilege until it has assured itself that the evidence sought from the President or his advisers is both important to its investigation and practically
We agree with the OIC in one regard, however.
R. Enterprises
makes clear that a grand jury subpoena is not subject to the same Rule 17(e) requirements of “relevancy, admissibility and specificity” as a criminal trial subpoena. Since to meet the need standard the grand jury will have to make a specific showing of the importance of the evidence it seeks, its exemption from the relevancy and specificity constraints of Rule 17(c) will not be significant. But the same is not true of the grand jury’s freedom from the requirement of admissibility, and in
R. Enterprises
the Court underscored that a grand jury is often allowed to consider evidence that would be deemed inadmissible in a criminal trial.
* * *
Based on our review of the
Nixon
cases and the purpose of the presidential communications privilege, we conclude that this privi
IV. Examination of the White House’s Claims of Privilege
Our final task is to apply the principles we have heretofore laid out to the documents withheld in this case. We have concluded that although all of the documents come under the presidential communications privilege, the OIC has demonstrated a sufficient showing of need to obtain certain information in some of the documents. Because we believe that the determination of exactly what evidence should be released is one that the district court should make in the first instance, we do not identify any specific portions of the documents to be released. However, we are supplementing our opinion -with a sealed appendix to assist the district court with its in camera review of each document on remand.
A. The Presidential Privilege Applies
The withheld documents consist primarily of outlines of issues and questions that needed to be investigated and drafts of the White House Counsel’s report on the Espy investigation. There are also notes of meetings and phone conversations, lists of information on Espy, and press briefings on Espy. Most of the documents were authored by two associate White House Counsel, a few were authored by top presidential advisers, specifically the White House Counsel, Deputy White House Counsel, Chief of Staff and Press Secretary. A few documents were authored by a legal extern in the White House Counsel’s office, and there are also three documents for which no author is listed. According to the White House privilege log, as well as the headings of the documents themselves, it appears that most of the documents circulated only within the White
The documents that were authored by the White House Counsel, Deputy White House Counsel, Chief of Staff and Press Secretary were communications connected to an official matter on which they were directly advising the President, and thus under the principles laid out in this opinion these documents are clearly covered by the privilege. The same is true of notes taken of meetings on the Espy investigation at which these advisers were present, since these notes reflect these advisers’ communications, and of documents that they solicited and received. As established above, the presidential privilege applies to communications made by a member of an immediate White House adviser’s staff when the staff member has broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate. It is clear from a review of the documents that the two associate White House Counsel exercised broad and significant responsibility for gathering information on Espy’s actions and authoring initial drafts of the White House Counsel’s report. Consequently, documents they authored or they
The only question regarding application of the presidential communications privilege here concerns the remaining withheld documents, which consist of those documents authored by the legal extern in the White House Counsel’s office and three documents for which no author is listed. It is apparent that the legal extern did not exercise broad and significant responsibility for the Espy investigation, and therefore the documents authored by the legal extern do not, on their own, qualify for the presidential privilege. However, all of the withheld documents authored by the extern were clearly created at the request of the two associate White House Counsel with broad and significant responsibility for the Espy investigation and were received by them. Therefore, the privilege also applies to these documents. The status of the three no-author documents is more difficult to resolve. Two of these documents were received by the Deputy White House Counsel, and the other by one of the associate White House Counsel with broad and significant responsibility for the Espy investigation. These documents relate to operational details of the Espy investigation. Clearly, if these documents were solicited by the Deputy White House Counsel and the associate White House Counsel, they would be also covered by the privilege. The current description of these documents provided by the White House, however, does not specifically indicate whether these documents were in fact solicited. Ordinarily, the White House would be expected to demonstrate that they had been, but we do not believe a remand for that showing is necessary here because our review of the documents themselves demonstrates that from the nature of their contents and the persons to whom they were directed there can be little question that they had been solicited. As we are setting forth for the first time the principles by which we will determine whether the privilege applies to communications of presidential advisers that do not directly involve the President, we believe it would be unrealistic to expect the White House to have foreseen the need to specifically demonstrate that the documents had been solicited.
In sum, we conclude that all of the documents withheld by the White House here are subject to the presidential communications privilege. As a result, we need not determine whether the documents would qualify for the deliberative process privilege. 23
A preliminary question that must be addressed before we turn to an examination of the OIC’s demonstration of need is whether we should be reviewing this demonstration at all. The procedure envisioned by the
Nixon
cases, as outlined earlier, is that upon a sufficient showing of need, the President must turn over privileged materials for
in camera
review, whereupon the court reviews the materials and determines what should be released. This case comes to us in a significantly different posture than
Nixon
and
Siri-ca.
In both of those cases, President Nixon was challenging district court orders that instructed him to submit the subpoenaed tapes for
in camera
review. In this case, the White House has already turned over the subpoenaed materials for
in camera
review pursuant to the district court’s order, and did not appeal from that order. Instead, we have before us the OIC’s appeal of the district court’s denial of the OIC’s motion to compel. Thus, we are presented with the question of whether we should forego determining whether or not the OIC made a suffi
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 subpoenаed materials likely contain important evidence and that this evidence, or equivalent evidence, is not practically available from another source. The purpose of this initial showing is to protect the confidentiality of presidential communications; it operates on the presumption that these communications are privileged and requires the subpoena proponent to meet a certain threshold of need before a court will consider releasing any of the communications sought.
The district court’s
in camera
review also aims to ensure that presidential confidentiality is not unnecessarily breached, but it operates on the presumption that some privileged materials will probably be released. The court’s task during its
in camera
review is simply to ensure that privileged materials that would not be of use to the subpoena proponent are not released.
Nixon,
We believe that the appropriate course for us is to determine whether the OIC made out a sufficient showing of need to
The OIC provides two arguments as to why the grand jury needs the documents. One is the general claim that as the White House investigated the same subject matter as the grand jury, namely whether Espy accepted improper gifts or otherwise abused his position, the White House documents will clearly be relevant to the grand jury’s investigation. [ ] The 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 eases, the actions of White House officers do not appear to be under investigation.
We recognize the difficulty that the OIC faces in demonstrating that it has not been able to obtain the information contained in the White House Counsel’s documents when it does not know what this information is. This difficulty has been worsened by the extremely sketchy descriptions of the withheld documents that the White House provided in its privilege log. We also realize that in order to preserve the secrecy of the grand jury’s investigation, the OIC is understandably reluctant to detail the witnesses it has interviewed so far or the areas on which the investigation is focusing. But the OIC has not even attempted this task. For example, during their negotiations over the withheld documents, the White House Counsel’s office informed the OIC that the documents contained notes from interviews with two USDA attorneys. Yet the OIC has not indicated whether it interviewed attorneys at USDA and if so whether any one of them admitted to having conversations with the White House Counsel’s office. Again, while the OIC notes in its brief that the withheld documents could contain statements from witnesses who are no longer cooperating with the grand jury’s investigation, it provides no basis on which we could conclude that this is in fact the case. We also note that the
Nonetheless, it is possible that the OIC might be able to provide a sufficient justification for obtaining factual information in the White House files that it might not already possess. The White House has conceded that there is some factual information in the withheld documents that is. not also contained in the documents that the White House released, and our own review of the documents has identified a sizeable number of such items of information, though many of them appear to be of minimal consequence. Moreover, the grand jury investigation into Espy’s actions has now lasted over two years, so that if and when the OIC provides some account of the information the grand jury has been unable to obtain, it will be fair to conclude that this information is not obtainable elsewhere. The OIC may also be able to demonstrate a need for information that it currently possesses, but which it has been unable to confirm or disprove.
Consequently, on remand the OIC should be given an opportunity to supplement its showing of need for the information contained in the withheld documents. If the district court determines that the OIC’s demonstration of need satisfies the
Nixon/Sirica
standard, the court should review the documents
in camera
and release any information that might reasonably be relevant in light of this demonstration of need. Two caveats
The OIC’s second, more narrow argument as to why the grand jury needs the withheld documents is much more powerful. [ 25 , 26 ]
The OIC’s second argument of need for evidence in the subpoenaed documents is sufficient to obtain
in camera
review; the OIC has demonstrated that it is likely the subpoenaed documents contain important evidence that is not available elsewhere. On
in camera
review, the district court should isolate and release all evidence that might reasonably
We therefore hold that the OIC has demonstrated sufficient need in order to overcome the presidential communications privilege in regard to evidence of [ ] and that the OIC should be given an opportunity to make out a sufficient showing of need in regard to other evidence more generally. On remand, the district court should identify and release specific items of evidence that might reasonably be relevant to the grand jury’s investigation into the potential [ ] 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 communications privilege. In holding that the privilege extends to communications authored by or solicited and received by presidential advisers аnd that a specified demonstration of need must be made even in regard to a grand jury subpoena, we are ever mindful of the dangers involved in cloaking governmental operations in secrecy and in placing obstacles in the path of the grand jury in its investigatory mission. There is a powerful counterweight to these concerns, however, namely the public and constitutional interest in preserving the efficacy and quality of presidential deci-sionmaking. We believe that the principles we have outlined in this opinion achieve a delicate and appropriate balance between openness and informed presidential deliberation.
The decision of the district court is vacated and the case is remanded for further proceedings consistent with this opinion.
So ordered.
Notes
. 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 confidential presidential communications. However, as we discuss below, see infra Part I.B, "executive privilege” is generally used to refer to a wide variety of evidentiary and substantive privileges that courts accord the executive branch. Consequently, we refer to the privileges asserted by the White House more specifically as the presidential communications privilege, or presidential privilege, and the deliberative process privilege.
. For a listing of the different forms of executive privilege sanctioned by courts, see Gerald Wet-laufer, 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 accorded the mental processes of agency officials,
see United States v. Morgan,
. This characteristic of the deliberative process privilege is not an issue in FOIA cases because the courts have held that the particular purpose for which a FOIA plaintiff seeks information is not relevant in determining whethеr FOIA requires disclosure.
See Sears,
. Marshall's conclusion was presaged by the argument before the Court, where then-Attomey 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,
. 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.,
.Two cases,
Mink
and
Soucie v. David,
.See, e.g., Robert Kramer & Herman Marcuse, Executive Privilege — 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 dispute how often Presidents have actually refused to provide Congress 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 Archibald Cox, Executive Privilege, 122 U. Pa. L. Rev. 1383, 1395-1405 (1974); see generally Raoul Berger, Executive Privilege: A Constitutional 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, Executive Privilege: The Dilemma of Secrecy and Democratic Accountability (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 investigation 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,
. See supra note 2.
. The Court implied, however, that particularized claims of privilege 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
. The operation of the presidential communications privilege was addressed in a few other criminal cases. In
United States v. Haldeman,
. 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 government’s enforcement policy on military draft registration requirements was unconstitu
. This court subsequently upheld the regulations promulgated by GSA to govern access to the Nixon materials.
See Nixon v. Freeman,
. In
Nixon, Sirica
and
GSA,
President Nixon personally asserted 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,”
. 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 Committee,
. The elements of this showing of need are discussed in greаter 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,
. For example, Professor Berger commented on the Nixon decision: "The real problem is not posed by confidentiality between the President and his immediate advisers, 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, Incarnation, 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,
. 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 presidential 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 investigation, at which point they will be published. See Fed.R.Crim.P. 6(e).
. [ ]
. [ ]