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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 20, 1997 Decided June 17, 1997 
No. 96-3124
IN RE:  SEALED CASE
Appeal from the United States District Court 
for the District of Columbia 
(No. 95ms00192)
-----
	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 
review of the documents consistent with the principles set out 
in this opinion.
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 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 training 
and 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.[fn1]   In a later draft of the privilege log, the White 
House lists the privilege basis of all 84 documents as being 
"executive/deliberative privilege."[fn2] 

	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 


____________________
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 White 
House 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 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 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).[fn3] 
	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).[fn4]   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.[fn5]   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.[fn6]   In the Burr misdemeanor trial, Jefferson 
responded to the subpoena by sending Wilkinson's letter to 
George 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).[fn7] 
	The presidential communications privilege did not resurface 
in court for over a hundred and fifty years.[fn8]   Presidential 
claims of a right to preserve the confidentiality of information 
and documents figured more prominently in executive-
congressional relations, but these claims too were most often 
essentially assertions of the deliberative process privilege.[fn9]   
Moreover, given the restrictions on congressional standing 
and the courts' reluctance to interfere in political battles, few 
executive-congressional disputes over access to information 
have ended up in the courts.[fn10]   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.[fn11]   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 the 
district court's reasons for its ruling.   See In re Sealed Case 
(Government Records), 950 F.2d 736, 738 (D.C. Cir. 1991) 
(appeals court cannot apply deferential standard when district 
court did not provide reasons for denying subpoena or did not 
review documents in camera).
	Here, the district court provided no explanation of its 
denial of the motion to compel.  The denial took the form of a 
blanket ruling, with no individualized discussion of the 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 
provided Espy's counsel with a document nearly identical to 
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 
must both (1) object to the subpoena and (2) state the claim of 
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 
approach to waiver in the executive privilege context is 
designed to ensure that agencies do not forego voluntarily 
disclosing some privileged material out of the fear that by 
doing so they are exposing other, more sensitive documents.  
See Assembly of the State of California v. 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.
III. THE PRESIDENTIAL COMMUNICATIONS 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 
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 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 turned 
over to the court for in camera review, however, rather than 
given to the grand jury directly, to ensure that only material 
relevant to the Watergate inquiry was released.  Id. at 719-
22.
	President Nixon did not appeal our decision in Sirica, and 
thus it was not until a year later, in Nixon, that the question 
of whether an executive privilege of confidentiality for 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.[fn12]   The Court 
remanded for the district court to perform an in camera 
review in which relevant and admissible evidence in the tapes 
would 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.[fn13]   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.[fn14]   
Congress 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.[fn15] 

	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.[fn16]   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 more 
particularized 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 we 
believe 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.[fn17] 
	Finally, while both the deliberative process privilege and 
the presidential privilege are qualified privileges, the Nixon 
cases suggest that the presidential communications privilege 
is more difficult to surmount.  In regard to both, courts must 
balance the public interests at stake in determining whether 
the privilege should yield in a particular case, and must 
specifically consider the need of the party seeking privileged 
evidence.  But this balancing is more ad hoc in the context of 
the deliberative process privilege, and includes consideration 
of additional factors such as whether the government is a 
party to the litigation.  Moreover, the privilege disappears 
altogether when there is any reason to believe government 
misconduct occurred.  On the other hand, a party seeking to 
overcome the presidential privilege seemingly must always 
provide a focused demonstration of need, even when there are 
allegations of misconduct by high-level officials.[fn18]   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 meetings 
among 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.[fn19]   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 of 
presidential communications privilege over memoranda that 
circulated between two presidential aides.  The Court of 
Claims never discussed whether the memoranda actually 
came under the privilege, but rather assumed the privilege 
applied and 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.[fn20] 

	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 to 
do 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 absolutely 
clear 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 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:  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 Supreme 
Court 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's 
official 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 those 
they 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.[fn21]   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.[fn22]   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 overcome 
the 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 subpoena 
satisfied 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 confidential 
conversations 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 another 
source 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 an 
impossible burden on the grand jury, create untoward delays, 
and threaten the secrecy of grand jury proceedings.  R. 
Enters., 498 U.S. at 299.  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 the 
President'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 a 
much more frequent threat to presidential confidentiality.  
The Supreme Court has recognized that "the longstanding 
principle that the public has a right to every man's evidence" 
is limited by valid claims of privilege in grand jury 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. at 
298.  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.
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 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 
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 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 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 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.[fn23] 
B.	The OIC's Demonstration of Need[fn24] 
	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 district 
court orders that instructed him to submit the subpoenaed 
tapes for in camera review.  In this case, the White House 
has already turned over the subpoenaed materials for in 
camera review pursuant to the district court's order, and did 
not appeal from that order.  Instead, we have before us the 
OIC's appeal of the district court's denial of the OIC's motion 
to compel.  Thus, we are presented with the question of 
whether we should forego determining whether or not the 
OIC made a sufficient showing of need to obtain in camera 
review, and instead simply instruct the district court to 
review the withheld documents and determine what evidence 
should be released.
	How we resolve this question could have a significant 
impact on what materials are disclosed to the grand jury, 
because the standard applied to determine if the OIC has 
made a sufficient showing of need to obtain in camera review 
is much more difficult to satisfy than the standard applied 
during in camera review to determine exactly what evidence 
should be released.  As we explained in the preceding section, 
the showing required to obtain in camera review is governed 
by the Nixon/Sirica need standard and entails demonstrating 
with specificity that the subpoenaed materials likely contain 
important evidence and that this evidence, or equivalent 
evidence, is not practically available from another source.  
The purpose of this initial showing is to protect the 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 by 
isolating all evidence that satisfies the applicable Rule 17(c) 
requirements of admissibility and relevance.  This evidence is 
then released, while the remaining materials are returned to 
the President.  418 U.S. at 714-15.  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 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 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 the 
documents in camera and release any information that might 
reasonably be relevant in light of this demonstration of need.  
Two caveats should be noted.  First, since the grand jury is 
investigating Espy's actions, not those of the White House 
Counsel's office, the purely deliberative portions of the 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.  [                    
					[fn25]    
 
		[fn26]                
 
                    ] 
	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 [         

                        ] 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 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.
So ordered.
	 
                                                                                                       
Footnotes
[fn1]      Another document was initially withheld on grounds of attorney 
work product privilege, but has since been released.  
[fn2]      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 
[fn3]      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).  
[fn4]      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.  
[fn5]      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 
 
[fn6]     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 
[fn7] 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.  
[fn8]      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 
[fn9] 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 
[fn10] 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).  
[fn11]      See supra note 2.  
[fn12]      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, 
[fn13] 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).  
[fn14]      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).  
[fn15]      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 
[fn16]  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.  
[fn17]      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).  
[fn18]      The elements of this showing of need are discussed in greater 
detail infra in Part III.C.  
[fn19]     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).  
[fn20]      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 
[fn21]      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.  
[fn22]      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").  
[fn23]      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.  
[fn24]     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).  
[fn25]      [                  ]   
[fn26]     [                         
                           ]   


   

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