except privately." 94 S. Ct. at 3107. The privilege accepted by the Supreme Court is not personal, but rather, "the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties." 94 S. Ct. at 3106. The Court opined that the privilege only exists insofar as it "relates to the effective discharge of a President's powers." 94 S. Ct. at 3109.
The Supreme Court's analysis of the function of the privilege therefore compels only one conclusion, that it inures to the Office of the President, not to any particular office-holder. Thus, the privilege which protects the President's confidential communications must be considered but "one species of executive privilege." Senate Select Committee on Pres. Camp. Act. v. Nixon, 162 U.S. App. D.C. 183, 498 F.2d 725, 729 (D.C. Cir. 1974). For, like that which protects military and state secrets, it is also founded upon the public interest in the effective performance of the constitutional powers and duties assigned to the Executive Branch and, therefore, also belongs to the government.
This is so even if a limited view of the privilege is taken, for it is apparent that the crux of the Supreme Court's decision in United States v. Nixon, supra, is that while the privilege protects conversations that have occurred, its true function is to assure that future presidents and their assistants will not be inhibited in expressing their "candid, objective, and even blunt or harsh opinions." 94 S. Ct. at 3107, 3109, n.20.
B. The Exercise of the Privilege
The assertion or waiver of the privilege is an exercise of the executive power, and since this power is vested in the incumbent President, U.S. Const., Art. II, Sec. VII, cl. 1, it follows that the former President may not assert or waive the privilege.
Nevertheless, Mr. Nixon contends that since these confidential communications occurred during his tenure in office, he has the right to assert or waive the privilege. The reasons for the above-stated principle, however, require that Mr. Nixon's contention be rejected.
This principle, that the assertion or waiver of the privilege is an exercise of executive power, has been expressed in the "head of the department" concept. In the area of military and state secrets, it is well-settled that "[the privilege] is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer." United States v. Reynolds, 384 U.S. at 8 (emphasis added). The reason that the "head of the department" must raise the privilege is apparent.
Only a government official, and particularly the "head of the department", has sufficient knowledge to determine, after "actual personal consideration of the matter," whether the disclosure of certain information would affect, adversely or not, the ongoing interests of the government. For, only she knows what those ongoing interests are. This will depend upon a myriad of information, both current and past, to which only the head of the department will have access, and which will be necessary to make a decision involving "considerations of policy . . . of extreme magnitude". Ware v. Hylton 3 U.S. (Dall) 199, 260, 1 L. Ed. 568 (1796). Clearly, a private individual does not have this capacity. For example, in the case of In re Grove, 180 Fed. 62 (3rd Cir. 1910), a private individual, Grove, had been held in contempt for refusing to produce copies of plans and specifications for the construction of certain torpedo boat destroyers for the United States, for which his company had submitted a bid. The Third Circuit Court of Appeals held that Grove's refusal was proper and not contemptuous since only the Secretary of the Navy, who had informed the Court that, after consideration of the matter, disclosure "[would not cause] the discovery of military or other secrets detrimental to the public interest," was in a position to make such a determination. 18 Fed. at 67.
It was upon consideration of the matter as revealed in Grove that the Supreme Court in Reynolds held that "the privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived by a private party." 345 U.S. at 7 (citing In re Grove).
The rule announced in Reynolds, supra, is also applicable to confidential communications of a President pertaining to the conduct of the Office of the President. This privilege is identical
to the privilege which protects all executive department "documents reflecting advisory opinions, recommendations and deliberations , comprising part of a process by which governmental decisions and policies are formulated." Carl Zeiss, supra, 40 F.R.D. at 324. See also, Black v. Sheraton Corp. of America, et al., 371 F. Supp. 97, 100 (D.D.C. 1974); United States v. Article of Drug, etc., 43 F.R.D. 181, 190 (D. Del. 1967); Rosee v. Board of Trade of City of Chicago, 36 F.R.D. 684, 689 (N.D. Ill. 1965); United States v. Procter & Gamble Co., 25 F.R.D. 485, 489 (D.N.J. 1960); Kaiser Aluminum & Chemical Corp. v. United States, 157 F. Supp. 939, 944, 141 Ct. Cl. 38 (1958); Gardner v. Anderson, 9 Fed. Cas. p. 1158, No. 5220 (C.C.D. Md. 1876). In these cases, while the fact of the communication is privileged, as with all privileges,
the substance of the communication has not been separated from the fact thereof; "While it is agreed that the privilege extends to all military and diplomatic secrets, its recognition is not confined to data qualifying as such." Carl Zeiss, supra, at 324. Therefore, the courts in such cases have uniformly adopted the "head of the department" principle, requiring the head of the department to assess the impact of disclosure, not only on the free flow of information, but the impact of the substance of the disclosure upon ongoing governmental interests. See, e.g., Carl Zeiss, supra, 324 n. 15 (citing numerous cases where the courts have noted the impact of the substance of the communication as well as the fact of the communication). Thus, since the fact of the communication can similarly not be separated from the substance thereof with respect to the communications of the President pertaining to the conduct of the Office of the President,
the head of the department rule of Reynolds must be applied.
That the rule in Reynolds, supra, must be applied with respect to confidential communications of the President relating to the conduct of the Office of the President is even more compelling than with respect to the executive departments, since the former relate to decisions and policies at the highest level of the government. Thus, the disclosure of even the most innocuous statement about a foreign power, for example, may have the gravest repercussions. See United States v. Nixon, supra, 94 S. Ct. at 3111.
Thus, the assertion or waiver of the privilege which protects confidential communications relating to the conduct of the Office of the President, even though they are those of a former President, must be exercised by the incumbent President. It may not be asserted or waived by a private party, even a former President; it is apparent that Mr. Nixon, although a former President, is no longer privy to the myriad of information concerning ongoing governmental interests which would be essential to the exercise of the privilege. Therefore, he lacks the capacity to assert or waive the privilege.
Thus, the preservation or disclosure of confidential communications pertaining to the conduct of the Office of the President must devolve upon the incumbent President.
This conclusion would also obtain even if the substance of the communication were not considered. For, the privilege of confidentiality of presidential communications is not only based upon the public interest, but also, it is to be exercised in the public interest.
"If a President concludes that compliance with a subpoena would be injurious to the public interest he may . . . invoke a claim of privilege. " United States v. Nixon, 94 S. Ct. at 3110. Thus, even where the disclosure of the substance of the communication would not be detrimental to ongoing governmental interests, an assessment must be made of whether the public interest in disclosure outweighs the affect upon the free flow of information within the Office of the President. And, only the incumbent President is in a position to assess the public interest, and balance these interests. Clearly, even in such instances, "[the privilege] is not to be lightly invoked." Reynolds, supra, at 7.
Moreover, it is the incumbent President, not the former President, who bears the legal and political responsibility for either asserting or waiving the privilege. It is the incumbent President who is held legally responsible for his conduct, U.S. Const. Art. II, Sec. IV, and it is the incumbent President who is held politically responsible; he, not the former President, must stand for re-election, U.S. Const., Art. II, Sec. I, cl. 1. And, even though there are statutes which would prohibit the former President from disclosing certain information,
these statutes are not all-inclusive.
The court concludes that the privilege which protects confidential communications relating to the conduct of the Office of the President belongs to the government, and must be asserted or waived by the incumbent President, and not by the former President or any other private citizen.
C. The Scope of Protection of the Privilege
Former President Nixon contends that if he is unable to control the assertion or waiver of the privilege, he will lose the protection that the privilege would afford him if he were still in office.
Preliminarily, as this Court has earlier set forth, the privilege does not exist for the protection of the officeholder, but rather for the office and, therefore, the public. Yet, the effect of the privilege is to shield public officials to a limited extent. They are protected from public disclosure of "errors or bad judgment," Kaiser Aluminum, supra, 157 F. Supp. at 946, except where the privilege must yield to other interests. See United States v. Nixon, supra. However, this protection is limited:
"It is true, of course, that the Executive cannot, any more than the other branches of government, invoke a general confidentiality privilege to shield its officials and employees from investigations by the proper governmental institutions into possible criminal wrongdoing."
Senate Select Comm. on Pres. Cam. Act. v. Nixon, supra, 498 F.2d at 731 (footnote omitted).
See also, Nixon v. Sirica, supra, 487 F.2d at 713.
It is against this background that former President Nixon strongly asserts that if the court rules that only an incumbent President may assert or waive the privilege which protects the confidential communication of the President, including those of a former President, relating to the conduct of the Office of the President, it would subject each President to the intolerable possibility that his successor would lay bare, either out of spite or for political gain, those confidential communications of his predecessor which reveal "errors or bad judgment." But such an assertion is untenable as the privilege is part of the Constitution, United States v. Nixon, supra, which each President has a constitutional duty to "preserve, protect and defend." U.S. Const., Art. II, Sec. I, cl. 7. This duty carries with it the responsibility that each President not disclose the confidential communications of his predecessor except upon the same consideration that he is required to give to his own confidential communications with his assistants, i.e., when it is in the "public interest". United States v. Nixon, supra, 94 S. Ct. at 3110 (Section D). And, it matters not that a former President has no remedy at law or equity to prohibit disclosures by his successors, or to recover damages therefrom for his successors, having taken the "oath of office" may, upon a violation of the duty to protect such communications, be held responsible. U.S. Const., Art. II, Sec. I, cl. 1; Sec. IV.
Former President Nixon, however, claims that a "Presidential privilege" is essential to a former President; otherwise, he could be compelled to reveal confidential communications once he had left office.
This Court has rejected any notion of a personal "Presidential privilege". However, this does not mean that a President, once he has left office, can be compelled to reveal confidential communications which relate to the conduct of the Office of the President. For, a President, in this sense, is analogous to an attorney.
When an attorney is subpoenaed or summoned to testify about confidential communications protected by the attorney-client privilege, he may not do so without the informed consent of his client. For, the attorney-client privilege is personal to the client, and can only be waived by the client. See Magida v. Continental Can Co., 12 F.R.D. 74, 78 (S.D.N.Y. 1951). Similarly, the former President, when called upon to testify about confidential communications concerning the conduct of the Office of the President, could not do so without the informed consent of the client -- in this case, the public. However, unlike the attorney-client privilege, the public expresses its consent through its designated representative,
the incumbent President. Thus, it would appear that when the former President is subpoenaed or summoned to testify concerning confidential communications relating to the conduct of the Office of the President, the incumbent President would have to intercede in order to assert or waive the privilege. This conclusion has found expression in not wholly dissimilar cases. See e.g., Heine v. Raus, 399 F.2d 785 (4th Cir. 1968). However, a final and conclusive determination of this question is not essential for a resolution of the questions herein.
The Court concludes, as a matter of law, that the privilege which attaches to confidential communications relating to the conduct of the Office of the President contained in Presidential materials and tape recordings belongs to the government and may only be asserted or waived by the incumbent President, and not by former President Nixon.
X. FOURTH AMENDMENT
POINT ONE: MR. NIXON'S FOURTH AMENDMENT RIGHTS HAVE NOT BEEN VIOLATED BECAUSE THE NOVEMBER 9TH AGREEMENT IS NOT A GENERAL WARRANT: NOR DOES IT SUBJECT HIM TO AN UNREASONABLE SEARCH AND SEIZURE. HOWEVER, UNDER THE CIRCUMSTANCES, MR. NIXON'S RIGHT OF PRIVACY MUST BE AFFORDED PROTECTION.