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ficers to commission charge with executive duty to see that the federal election laws are faithfully executed); Bowshar v. Symar, 106 S.Ct. 3181, (1986) (Congress may not assign power to make determinations binding upon President to officer subject to legislative removal and control). So too, the Court has made it clear that even politically useful and expedient inventions are impermissible where they conflict with the allocation of powers and the procedures prescribed for their exercise explicitly established by the Constitution. INS v. Chadha, 462 U.S. 919, 943-59 (1983) (one-house veto of administrative action conflicts with express constitutional allocation of legislative and executive powers and procedures prescribed for enacting laws).

The argument that the same principles should apply here is clear. The power to conduct investigations to determine whether there is probable cause to allege that a high crime or misdemeanor has been committed is a power assigned to the executive to be exercised with the aid and subject to the checks established by the powers assigned to the Grand Jury. The Constitution explicitly made an exclusive assignment of that power to the House in one category of cases: The power to conduct investigations to determine whether

there is

probable cause to allege that a public officer has committed a high crime or misdemeanor and should be removed from office. The fact that the Constitution explicitly separates these powers and allocates them to agencies in different

branches strongly indicates that the powers and functions may not constitutionally be intermingled in practice. In this view, the House could never seek information gathered by the Grand Jury in the execution of its separate constitutional function in the criminal justice system for use by the House in the performance of the function assigned it by the Impeachment Clause.

Judge Hastings submits these considerations should inform, but not control, the analysis here. He took the position in the court below and takes the position here that the assignment of the sole power of impeachment authorizes the House to seek and, upon an appropriate demonstration of

need, to obtain a court order approving disclosure of such grand jury material as is necessary to the proper conduct of an impeachment inquiry. Nonetheless, the presence of concerns such as those that led the Supreme Court to erect impenetrable barriers in Buckley, Chadha, and Bowshar requires that the particularized need standard be applied in a manner that takes account of the separation of powers concerns by requiring a concrete demonstration of a need for specific materials that the Committee can not reasonably or has been unable to obtain through the normal processes available to the House. This view gathers further support from the cases that resulted from the Watergate investigations.

In the first of the Watergate cases, the grand jury issued a subpoena duces tecum to the President and, upon his

failure to comply, instructed the special prosecutor to seek an order from the court enforcing the subpoena.

In re Sub


poena to Nixon (Grand Jury), 360 F.Supp. 1 (D.D.C.), damus denied sub nom., Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973). In response to the President's claim of privilege, the special prosecutor submitted a memorandum setting forth "a particularized showing of the grand jury's need for each of the several subpoenaed tapes a need that that the District Court subsequently termed



and imposing'." Nixon v. Sirica, 487 F.2d at 705, citing In re Subpoena, 360 F.Supp. at 11. The district court entered an order directing the President to produce the tapes for in camera inspection by the court so that the court could determine whether the need demonstrated by the grand jury with respect to each item outweighed the confidentiality interest necessary to the proper functioning of the Presidency.

The President filed a petition for mandamus challenging. the district court's jurisdiction and authority over him and his records. The special prosecutor filed a petition for mandamus challenging the district court's decision to interpose its authority to determine whether and what materials should be disclosed to the grand jury and asked that full and immediate disclosure without in camera examination by the court be directed. 487 F.2d at 706.

The court of appeals recognized the great public interest in preserving the confidentiality of presidential commu

nications with his aides, but held that "the general confidentiality privilege [of the President] must recede before Id. at 717. At

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the grand jury's showing of need the same time, that court recognized that the President's interest in confidentiality required that the disclosure be limited to those materials that were relevant to matters within the scope of the grand jury's investigation and with respect to which the public interest served by nondisclosure of particular material did not outweigh the strated by the grand jury. Id. at 718. The court ruled that it was the duty of the courts to strike the balance and approved specific procedures for executing this duty by in camera examination. Id. 719


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Similar balancing tests were applied to measure the competing interests that arose in different contexts as the resulting cases evolved. The district court declined to order disclosure of specified tapes to a Senate select committee that had established a particularized need because the court determined that the interests fair trial interests of individuals who had been and were likely to be indicted outweighed the legislative committee's interest in obtaining relevant information that might aid it in the exercise of a legitimate legislative power. Senate Select Committee on Presidential Campaign Activities v. Nixon (II), 370 F.Supp. 521 (D.D.C. 1974).

In contrast, the Supreme Court approved the district court's order compelling the President to produce additional tapes for in camera inspection in response to a post-indictment subpoena issued at the request of the special prosecutor for production of evidence before trial. United States V. Nixon, 418 U.S. 683 (1974), aff'g, United States V. Mitchell, 377 F.Supp. 1326 (D.D.C.). In the lower court, the special prosecutor had shown that the subpoenaed material contained evidence that was demonstrably relevant to the criminal case. The President has asserted a generalized interest in without specification. The Supreme Court ruled that such a "generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending trial.” 683 U.S. at 713. The Court went on to emphasize the role of the district court in protecting the generalized privilege through in camera examination:


Statements that meet the test of admissibility
must be isolated; all other material must be ex-
cised. At this stage the District Court is not
limited to representations of the Special Prosecu-
tor as to the evidence sought by the subpoena; the
material will be available to the District Court.
It is elementary that in camera inspection of evi-
dence is always a procedure calling for scrupulous
protection against any release or publications of
materials not found by the court, at that stage,
probably admissible in evidence and relevant to
the issues of the trial for which it is sought.

418 U.S. at 715.

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