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$$_ $S 509, 510, 515, 533 [28 USCS $$ 509, 510, 515, 533). Acting pursuant to those statutes, the Attorney General has delegated the authority to represent the United States in these particular matters to a Special Prosecutor with unique authority and tenure. The regulation gives the Special Prosecutor explicit power to contest the invocation of executive privilege in the process of seeking evidence deemed relevant to the performance of these specially delegated duties. 38 Fed Reg 30739.

So long as this regulation is extant it has the force of law. In Accardi v. Shaughnessy, 347 US 260, 98 L Ed 681, 74 S Ct 499 (1954), regulations of the Attorney General delegated certain of his discretionary powers to the Board of Immigration Appeals and required that Board to exercise its own discretion on appeals in deportation cases. The Court held that so long as the Attorney General's regulations remained operative, he denied himself the authority to exercise the discretion delegated to the Board even though the original authority was his and he could reassert it by amending the regulations. Service v. Dulles, 354 US 363, 388, 1 L Ed 2d 1403, 77 S Ct 1152 (1957), and Vitarelli v. Seaton, 359 US 535, 3 L Éd 2d 1012, 79 S Ct 968 (1959), reaffirmed the basic holding of Accardi.

Here, as in Accardi, it is theoretically possible for the Attorney General to amend or revoke the regulation defining the Special Prosecutor's authority. But he has not done so.

So long as this regulation remains in force the Executive Branch is bound by it, and indeed the United States as the sovereign composed of the three branches is bound to respect and to enforce it. Moreover, the delegation of authority to the Special Prosecutor in this case is not an ordinary delegation by the Attorney General to a subordinate officer: with authorization of the President, the Acting Attorney General provided in the regulation that the Special Prosecutor was not to be removed without the "consensus" of eight designated leaders of Congress. Note 8, supra.


The demands of and the resistance to the subpoena present an obvious controversy in the ordinary sense, but that alone is not sufficient to meet constitutional standards. In the constitutional sense, controversy means more than disagreement and conflict; rather it means the kind of controversy courts traditionally resolve. at issue is the production or nonproduction of specified evidence deemed by the Special Prosecutor to be relevant and admissible in a pending criminal case. It is sought by one official of the Governo ment within the scope of his express authority; it is resisted by the Chief Executive on the ground of his duty to preserve the confidentiality of the communication of the President. Whatever the correct answer on the merits, these issues are "of a type which are traditionally justiciable." United States v. ICC, 337 us, at 430, 93 L Ed 1451. The independent Special Prosecutor with his asserted

need for the subpoenaed material in the underlying criminal prose-
cution is opposed by the President with his steadfast assertion of
privilege against disclosure of the material. This setting assures
there is "that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illimination
of difficult constitutional questions." Baker v. Carr, 369 US, at
204, 7 L Ed 2d 663. Moreover, since the matter is one arising in
the regular course of a federal criminal prosecution, it is within
the traditional scope of Art III power. Id., at 198, 7 L Ed 2d 663.

In light of the uniqueness of the setting in which the conflict arises, the fact that both parties are officers of the Executive Branch cannot be viewed as a barrier to justiciability. It would be inconsistent with the applicable law and regulation, and the unique facts of this case to conclude other than that the Special Prosecutor has standing to bring this action and that a justiciable controversy is presented for decision.


RULE 17(c)

The subpoena duces tecum is challenged on the ground that the Special Prosecutor failed to satis fy the requirements of Fed Rule Crim Proc 17(c), which governs the issuance of subpoenas duces tecum in fe de raí criminal proceedings. If we sustained this challenge, there would be no occasion to reach the claim of privilege a asserted with respect to the subpoenaed material. Thus we turn to the question whether the requirements of Rule 17(c) have been satisfied. See Arkansas - Louisiana Gas Co. v. Dept of Public Utilities 304 US 61, 64, 82 L Ed 1149,

1149, 58 S Ct 770 (1938); Ashwander v. Tennessee Valley Authority, 297 US 288, 346-347, 80 L Ed 688, 56 S Ct 466 (1936). (Brandeis, J., concurring.)

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Rule 17(c) provides:
"A subpoena may also command the person to whom it is directed
to produce the books, papers, documents or other objects des-
ignated therein. The court on motion made promptly may quash
or modify the subpoena if compliance would be unreasonable or

The court may direct that books, papers, documents
or objects designated in the subpoena be produced before the
court at a time prior to the trial or prior to the time when
they are to be offered in evidence and may upon their production
permit the books, papers, documents or objects or portions
thereof to be inspected by the parties and their attorneys."

A subpoena for documents may be quashed if their production would be "unreasonable or oppressive," but not otherwise. The leading case in this court interpreting this standard is Bowman Dairy Co. v. United States, 341 US 214, 95 L Ed 879, 71 S Ct 675 (1951).

This case recognized certain fundamental characteristics of the subpoena duces tecum in criminal cases: (1) it was not intended to provide a means of discovery for criminal cases. Id., at 220, 95 L Ed 879; (2) its chief innovation was to expedite the trial by providing a time and place before trial for the inspection of subpoenaed materials. Ibid. As both parties agree, cases decided in the wake of Bowman have generally followed Judge Weinfeld's formulation in United States v. Iozia, 13 FRD 335, 338 (SDNY 1952), as to the required showing. Under this test, in order to require production prior to trial, the moving party must show: (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend un reasonably to delay the trial; (4) that the application is made in good faith and is not intended as a general "fishing expedition."

Against this background, the Special Prosecutor, in order to carry his burden, must clear three hurdles : (1) relevancy; (2) admissibility; (3) specificity. Our own review of the record necessarily affords a less comprehensive view of the total situation than was available to the trial judge and we are unwilling to conclude that the District Court erred in the evaluation of the Special Prosecutor's showing under Rule 17 (c). Our conclusion is based on the record before us, much of which is under seal. Of course, the contents of the subpoenaed tapes could not at that stage be described fully by the Special Prosecutor, but there was a sufficient likelihood that each of the tapes contains conversations relevant to the offenses charged in the indictment. United States v. Gross, 24 FRD 138 (SDNY 1959). With respect to many of the tapes, the Special Prosecutor offered the sworn testimony or statements of one or more of the participants in the conversations as to what was said at the time. As for the remainder of the tapes, the identity of the participants and the time and place of the conversations, taken in their total context, permit a rational inference that at least part of the conversations relate to the offenses charged in the indictment.

We also conclude there was a sufficient preliminary showing that each of the subpoenaed tapes contains evidence admissible with respect to the offenses charged in the indictment. The most cogent objection to the admissibility of the taped conversations here at issue is that they are a collection of out-of-court statements by declarants who will not be subject to cross-examination and that the statements are therefore inadmissible hearsay. Here, however, most of the tapes apparently contain conversations to which one or more of the defendants named in the indictment were party. The hearsay rule does not automatically bar all out-of-court statements by a de fendant in a criminal case. Declarations by one de fendant may

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also be admissible against other defendants upon a sufficient showing, by independent evidence, of a conspiracy among one or more other de fendants and the declarant and if the declarations at issue were in furtherance of that conspiracy. The same is true of declarations of coconspirators who are not defendants in the case on trial. Dutton v. Evans, 400 US 74, 81, 27 L Ed 2d 213, 91 S Ct 210 (1970). Recorded conversations may also be admissible for the limited purpose of impeaching the credibility of any de fendant who testifies or any other co conspirator who testifies. Generally, the need for evidence to impeach witnesses is insufficient to require its production in advance of trial. See, e. g., United States v. Carter, 15 FRD 367, 371 (DDC 1954). Here, however, there are other valid potential evidentiary uses for the same material and the analysis and possible transcription of the tapes may take a significant period of time. Accordingly, we cannot say that the District Court erred in authorizing the issuance of the subpoena duces tecum.

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Enforcement of a pretrial subpoena duces tecum must necessarily be committed to the sound discretion of the trial court since the necessity for the subpoena most often turns upon a determination of factual issues. Without a determination of arbitrariness of that the trial court finding was without record support, an appellate court will not ordinarily disturb a finding that the applicant for a subpoena complied with Rule 17(c). See, e. g., Sue v. Chicago Transit Authority, 279 F2d 416, 419 (CAT 1960); Shotkin v. Nelson, 146 F2d 402 (CA10 1944).

In a case such as this, however, where a subpoena is directed to a President of the United States, appellate review, in de ference to a coordinate branch of government, should be particularly me ticulous to ensure that the standards of Rule 17(c) have been correctly applied, United States v. Burr, 25 Fed Cas 30, 34 (No. 14,692d) (1807). From our examination of the materials submitted by the Special Prosecutor to the District Court in support of his motion for the subpoena, we are persuaded that the District Court's denial of the President's motion to quash the subpoena was consistent with Rule 17(c). We also conclude that the Special Prosecutor has made a sufficient showing to justify a subpoena for production before trial. The subpoenaed materials are not available from any other source, and their examination and processing should not await trial in the circumstances shown. Bowman Dairy Co. supra; United States v. Iozia, supra.




Having de termined that the requirements of Rule 17(c) we re

satisfied, we turn to the claim that the subpoena should be quashed because it demands "confidential conversations between a President and his close advisors that it would be inconsistent with the public interest to produce."

App 48a.

The first contention is a broad claim that the separation of powers doctrine precludes judicial review of a President's claim of privilege. The second contention is that if he does not prevail on the claim of absolute privilege, the court should hold as a matter of consitutional law that the privilege prevails over the subpoena duces tecum.

In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. The President's counsel, as we have noted, reads the Constitution as providing an absolute privilege of confidentiality for all presidential communications. Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury v. Madison, 1 Cranch 137, 2 L Ed 60 (1803), that "it is emphatically

i the province and duty of the judicial department to say what the law is." Id., at 177, 2 L Ed 60.

No holding of the Court has defined the scope of judicial power specifically relating to the enforcement of a subpoena for confidential presidential communications for use in a criminal prosecution, but other exercises of powers by the Executive Branch and the Legislative Branch have been found invalid as in conflict with the Constitution. Powell v. McCormack, supra; Youngstown, supra.

In a series of cases, the Court interpreted the explicit immunity con ferred by express provisions of the Constitution on Members of the House and Senate by the Speech or Debate Clause, US Const Art I, § 6. Doe v. McMillan, 412 US 306, 36 L Ed 2d 912, 93 S Ct 2018 (1973); Gravel v. United States, 408 US 606, 33 L Ed 2d 583, 92 S Ct 2614 (1972); United States v. Brewster, 408 US 501, 33 L Ed 2d 507, 92 S Ct 2531 (1972); United States v. Johnson, 383 US 169, 15 L Ed 2d 681, 86 s Čt 749 (1966). Since this court has consistently exercised the power to construe and delineate claims arising under express powers, it must follow that the Court has authority to interpret claims with respect to powers alleged

to derive from enume rated powers.

Our system of government "requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch." Powell v. McCormack, supra, 549, 23 L Ed 2d 491. And in Baker v. Carr, 369 US, at 211, i l Éd 2d' 663, the Court stated:

"Deciding whether a matter has in any measure been committed
by the Constitution to another branch of government, or whether
the action of that branch exceeds whatever authority has been
committed, is itself a delicate exercise in constitutional

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