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December 21, 1989


The opinion of the court was delivered by: GREENE

 The issue before the Court is what procedures should govern the Court's consideration of a request by defendant for enforcement of subpoenas duces tecum for documents from former President Ronald W. Reagan, the documents to be used in the defense against charges of false statements to and obstruction of Congress. There are few historical precedents to guide the Court, and each of these arose in its own peculiar context and may therefore not necessarily be controlling. This Court has been governed by the following principles.

 What is here involved is a clash between two sets of rights -- that of an accused in a criminal case to relevant evidence needed for his defense, and that of a former Chief Executive to be free from coercion with respect to his papers containing both personal observations and comments on matters of state. The subject is one of both delicacy and difficulty, for significant constitutional and public policy considerations underlie both sets of rights. The Court has accordingly sought to fashion a procedure that will accommodate the interests of the defendant as well as those of the former President, and to minimize injury to both.



 Motions to quash were filed on December 6, 1989, by his attorneys on behalf of President Reagan and by the Department of Justice on behalf of the Archivist of the United States as well as on behalf of the interest of the incumbent Chief Executive in the unimpaired constitutional responsibilities of the Presidency. See Nixon v. Administrator of General Services, 433 U.S. 425, 448-49, 53 L. Ed. 2d 867, 97 S. Ct. 2777 (1977); Nixon v. Freeman, 216 U.S. App. D.C. 188, 670 F.2d 346, 356 (D.C.Cir. 1982); Public Citizen v. Burke, 269 U.S. App. D.C. 145, 843 F.2d 1473 (D.C.Cir. 1988). Defendant's response was submitted December 14, 1989, and the question of the appropriate procedure is now ripe for decision.


 The Bifurcation Issue

 In addition to claiming that the subpoenas are unreasonable and oppressive, the motions to quash make reference to the doctrine of executive privilege, but they go on to argue that the Court should defer decision on the privilege issue and address at this time only the scope of the subpoenas. The defendant objects to this approach, contending that the Court should not undertake the complicated task of attempting to narrow the subpoena in advance of dealing with the executive privilege question. In his view, President Reagan and the Department of Justice are not entitled to a bifurcated process: the issue of the scope of the subpoena and that of executive privilege should be decided at the same time.

 In support of their contention that the Court should attempt to narrow the subpoena before requiring the former President to assert or to waive executive privilege, President Reagan and the Department of Justice argue that, in view of the role of the President in our constitutional structure, a former or incumbent President should be presented with the narrowest possible process. In implementation of that design, it is said, it is undesirable as a matter of constitutional and public policy to compel a President to make his decision on privilege with respect to a large array of documents some or many of which may ultimately turn out to be exempt from production for other, non-constitutional reasons.

 Defendant makes several points to buttress his contention that President Reagan and the Department of Justice should not be permitted to advance their objections to the subpoena in two stages, and that unless executive privilege is claimed now, the Court should refuse to subject the subpoena to the "meticulous review" the former and the incumbent President claim to be required. These arguments will now be considered seriatim.

 A. Political Issues

 Defendant claims, first, that the former and the incumbent President should not be permitted to avoid the "political consequences of their invoking the privilege." *fn4" This argument is without legal merit. The Court has no concern with the political consequences, if any, from a delay in the assertion of executive privilege. Indeed, if it should ultimately turn out that the privilege is never asserted (see below), the Court would not have to decide the delicate constitutional questions that would arise from a clash between the privilege and Poindexter's need for documents essential to his defense. Far from constituting a negative factor, therefore, the avoidance of a decision on such constitutional questions unless and until truly necessary is mandated by a long line of Supreme Court decisions, beginning with Justice Brandeis' concurrence in the Ashwander case, infra.

 B. Extended Proceedings

 Defendant further contends, with somewhat greater plausibility, that to defer consideration of the executive privilege issue until a later date would be to add a second and unnecessary briefing stage to the proceedings and thereby delay a final decision on the subpoena issues. The Court is as anxious as anyone not to delay resolution of the pretrial disputes, to the end that the trial itself may commence promptly. However, the Court has emphasized from the very outset that in its view the objective of the speediest possible resolution must give way to the protection of the constitutional rights of the defendant -- a factor to which now must be added an appropriate concern for the constitutional prerogatives of the Chief Executive.

 President Reagan will presumably wish to consider whether to invoke executive privilege with respect to the documents he will be ordered to produce. If no effort is made to narrow the subpoenas to the extent that this may legitimately be done, he will have to consider the privilege question with respect to many documents or excerpts from documents that might not in the course of events survive a "cut" under the requirements of Rule 17(c) itself -- a somewhat wasteful and time-consuming process. *fn5"

 On the other hand, by being able to concentrate on a possibly smaller number of documents following the narrowing of the subpoenas in accordance with the procedures announced herein, the former President or his counsel will be able to make their decisions regarding assertion or waiver of executive privilege that much more quickly. Naturally, in view of the Court's action to allow them to defer these decisions now, the Court expects them to proceed to make them expeditiously as soon as they are called upon to do so. To the same end, the Court also expects counsel for the former and the sitting President to marshal their legal arguments on the executive privilege issue in advance of the deadlines the Court is setting herein.

 C. Precedents

 Defendant finally argues on this issue that the two-stage approach advocated by the former and the incumbent President, and its corollary, special scrutiny to ensure compliance with Rule 17(c) standards, find no specific sanction in the decided cases. Both in the Aaron Burr6 and the Nixon7 cases, upon which the former and the incumbent President primarily rely, executive privilege had been formally claimed by the time the respective courts made their decisions on the subpoenas, and to that extent defendant's observation is therefore correct. Technically neither of these decisions can be said to stand for the proposition that a subpoena to a President ought to be subjected to ...

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