through the Attorney General regarding any alleged unauthorized removal of any notebooks or destruction of documents pursuant to 44 U.S.C. § 2905 or § 3106, and the National Security Council has not requested return of the notebooks, although it has been well aware of the assertions regarding their existence for many months.
Moreover, the notebooks, if they exist, are not impersonal records required to be kept by law. Supreme Court cases applying the collective entity doctrine in the business area have invoked it with respect to documents organizations regularly keep or are required to keep, and the Court has distinguished such documents from private papers. Dreier v. United States, 221 U.S. 394, 400, 55 L. Ed. 784, 31 S. Ct. 550 (1911); see also, Braswell, supra; Shapiro v. United States, 335 U.S. 1, 92 L. Ed. 1787, 68 S. Ct. 1375 (1948).
The law concerning production to the government of various governmental papers pursuant to the collective entity doctrine is not as well defined -- the government cites no case specifically applying the collective entity doctrine to a government agency -- and the statutes are unclear and in a state of flux regarding which government workers are custodians, what documents are governmental or Presidential, and what the duties of government officials are regarding documents containing both notes of official matters and more personal material.
If the Court ordered a subpoena to issue, the fact of production or non-production would, of course, have to be kept from the jury, as the Independent Counsel acknowledges. This is not enough. Production or non-production could, without such a grant, provide the basis for charges in further indictments under several applicable statutes carrying severe felony penalties. The Court would not issue a subpoena in any event without a grant of use immunity, See, Fisher v. United States, 425 U.S. 391, 48 L. Ed. 2d 39, 96 S. Ct. 1569 (1976); Doe v. United States, 465 U.S. 605, 79 L. Ed. 2d 552, 104 S. Ct. 1237 (1984) (Doe I), and the Independent Counsel is presently unwilling to make such a grant. In addition, if the notebooks are found to be partially personal, and if unauthorized or incriminating personal activity is recorded in them, ordering their production would be a classic violation of the Fifth Amendment's safeguards against compelled testimonial self-incrimination. See, Fisher, 425 U.S. at 409; Bellis v. United States, 417 U.S. 85, 87-88, 40 L. Ed. 2d 678, 94 S. Ct. 2179 (1974); Wheeler v. United States, 226 U.S. 478, 489, 57 L. Ed. 309, 33 S. Ct. 158 (1913); Wilson v. United States, 221 U.S. 361, 377, 55 L. Ed. 771, 31 S. Ct. 538 (1911).
The government has not satisfied the standards of Rule 17(c) for issuance of the subpoena. Although it has attempted to specify the contents of notebooks, it cannot identify any material entry or practice that assures the Court that the standards of relevance, materiality and necessity to the remaining counts will be satisfied, and the massive documentation already in the case suggests that further data would be superfluous. United States v. Nixon, 418 U.S. 683, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1978); Bowman Dairy Co. v. United States, 341 U.S. 214, 95 L. Ed. 879, 71 S. Ct. 675 (1951). Indeed, the wording of the proposed subpoena is unduly broad, as it could sweep within its ambit notebooks never used at work, and its time span as initially framed is too broad.
Finally, issuance of an subpoena would entail further problems. If the notebooks were produced, they could not be used by Independent Counsel or by North until classification questions were resolved under CIPA, purely personal data excised, and relevance and materiality to particular counts determined. On the other hand, if North failed to produce the notebooks, the Independent Counsel has not submitted sufficient proof of present possession and control of the notebooks to warrant a citation against North for contempt. The inadequacy of the proof in this regard is highlighted by the fact that North is charged with destroying similar material. If North has the notebooks and seeks to rely on them during the defense case, they may become fully available to Independent Counsel, but at this stage, any subpoena issued would be toothless.
The government's motion is denied.