433 U.S. 425 (1977)

NIXON
v.
ADMINISTRATOR OF GENERAL SERVICES ET AL.

No. 75-1605.

Supreme Court of the United States.

Argued April 20, 1977. Decided June 28, 1977. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

*428 Herbert J. Miller, Jr., and Nathan Lewin argued the cause *429 for appellant. With them on the briefs were R. Stan Mortenson, Raymond G. Larroca, Martin D. Minsker, and William H. Jeffress, Jr.

Solicitor General McCree argued the cause for the federal appellees. On the brief were former Acting Solicitor General Friedman, Acting Assistant Attorney General Babcock, Deputy Assistant Attorney General Goldbloom, Robert E. Kopp, and Anthony J. Steinmeyer. Robert E. Herzstein argued the cause for appellees Reporters Committee for Freedom of the Press et al. With him on the brief were Andrew S. Krulwich, Mark J. Spooner, Peter T. Grossi, Jr., and Leonard B. Simon. Leon Friedman, John H. F. Shattuck, and Joel M. Gora filed a brief for appellees Hellman et al. William A. Dobrovir and Andra N. Oakes filed a brief for appellee Anderson.

MR. JUSTICE BRENNAN delivered the opinion of the Court.

Title I of Pub. L. 93-526, 88 Stat. 1695, note following 44 U. S. C. § 2107 (1970 ed., Supp. V), the Presidential Recordings and Materials Preservation Act (hereafter Act), directs the Administrator of General Services, an official of the Executive Branch, to take custody of the Presidential papers and tape recordings of appellant, former President Richard M. Nixon, and promulgate regulations that (1) provide for the orderly processing and screening by Executive Branch archivists of such materials for the purpose of returning to appellant those that are personal and private in nature, and (2) determine the terms and conditions upon which public access may eventually be had to those materials that are retained. The question for decision is whether Title I is unconstitutional on its face as a violation of (1) the separation of powers; (2) Presidential privilege doctrines; (3) appellant's privacy interests; (4) appellant's First Amendment associational rights; or (5) the Bill of Attainder Clause.

On December 19, 1974, four months after appellant resigned as President of the United States, his successor, President Gerald R. Ford, signed Pub. L. 93-526 into law. The next *430 day, December 20, 1974, appellant filed this action in the District Court for the District of Columbia, which under § 105 (a) of the Act has exclusive jurisdiction to entertain complaints challenging the Act's legal or constitutional validity, or that of any regulation promulgated by the Administrator. Appellant's complaint challenged the Act's constitutionality on a number of grounds and sought declaratory and injunctive relief against its enforcement. A three-judge District Court was convened pursuant to 28 U. S. C. §§ 2282, 2284.^[1] Because regulations required by § 104 of the Act governing public access to the materials were not yet effective, the District Court held that questions going to the possibility of future public release under regulations yet to be published were not ripe for review. It found that there was "no need and no justification for this court now to reach constitutional claims directed at the regulations . . . the promulgation of [which] might eliminate, limit, or cast [the constitutional claims] in a different light." 408 F. Supp. 321, 336 (1976). Accordingly, the District Court limited review "to consideration of the propriety of injunctive relief against the alleged facial unconstitutionality of the statute," id., at 335, and held that the challenges to the facial constitutionality of the Act were without merit. It therefore dismissed the complaint. Id., at 374-375. We noted probable jurisdiction, 429 U. S. 976 (1976). We affirm.

I

The Background

The materials at issue consist of some 42 million pages of documents and some 880 tape recordings of conversations. Upon his resignation, appellant directed Government archivists to pack and ship the materials to him in California. This *431 shipment was delayed when the Watergate Special Prosecutor advised President Ford of his continuing need for the materials. At the same time, President Ford requested that the Attorney General give his opinion respecting ownership of the materials. The Attorney General advised that the historical practice of former Presidents and the absence of any governing statute to the contrary supported ownership in the appellant, with a possible limited exception.^[2] 43 Op. Atty. Gen. No. 1 (1974), App. 220-230. The Attorney General's opinion emphasized, however:

"Historically, there has been consistent acknowledgement that Presidential materials are peculiarly affected by a public interest which may justify subjecting the absolute ownership rights of the ex-President to certain limitations directly related to the character of the documents as records of government activity." Id., at 226.

On September 8, 1974, after issuance of the Attorney General's opinion, the Administrator of General Services, Arthur F. Sampson, announced that he had signed a depository agreement with appellant under the authority of 44 U. S. C. § 2107. 10 Weekly Comp. of Pres. Doc. 1104 (1974). We shall also refer to the agreement as the Nixon-Sampson agreement. See Nixon v. Sampson, 389 F. Supp. 107, 160-162 (DC 1975) (App. A). The agreement recited that appellant retained "all legal and equitable title to the Materials, including all literary property rights," and that the materials accordingly were to be "deposited temporarily" near appellant's California home in an "existing facility belonging to the United States." Id., at 160. The agreement stated further that appellant's purpose was "to donate" the materials to the United States "with appropriate *432 restrictions." Ibid. It was provided that all of the materials "shall be placed within secure storage areas to which access can be gained only by use of two keys," one in appellant's possession and the other in the possession of the Archivist of the United States or members of his staff. With exceptions not material here, appellant agreed "not to withdraw from deposit any originals of the materials" for a period of three years, but reserved the right to "make reproductions" and to authorize other persons to have access on conditions prescribed by him. After three years, appellant might exercise the "right to withdraw from deposit without formality any or all of the Materials . . . and to retain . . . [them] for any purpose . . ." determined by him. Id., at 161.

The Nixon-Sampson agreement treated the tape recordings separately. They were donated to the United States "effective September 1, 1979," and meanwhile "shall remain on deposit." It was provided however that "[s]ubsequent to September 1, 1979 the Administrator shall destroy such tapes as [Mr. Nixon] may direct" and in any event the tapes "shall be destroyed at the time of [his] death or on September 1, 1984, whichever event shall first occur." Ibid. Otherwise the tapes were not to be withdrawn, and reproductions would be made only by "mutual agreement." Id., at 162. Access until September 1, 1979, was expressly reserved to appellant, except as he might authorize access by others on terms prescribed by him.

Public announcement of the agreement was followed 10 days later, September 18, by the introduction of S. 4016 by 13 Senators in the United States Senate. The bill, which became Pub. L. 93-526 and was designed, inter alia, to abrogate the Nixon-Sampson agreement, passed the Senate on October 4, 1974. It was awaiting action in the House of Representatives when on October 17, 1974, appellant filed suit in the District Court seeking specific enforcement of the Nixon-Sampson agreement. That action was consolidated with other suits seeking access to Presidential materials pursuant *433 to the Freedom of Information Act, 5 U. S. C. § 552 (1970 ed. and Supp. V), and also seeking injunctive relief against enforcement of the agreement. Nixon v. Sampson, supra.[3] The House passed its version of the Senate bill on December 3, 1974. The final version of S. 4016 was passed on December 9, 1974, and President Ford signed it into law on December 19.

II

The Act

Public Law 93-526 has two Titles. Title I, the challenged Presidential Recordings and Materials Preservation Act, consists of §§ 101 through 106. Title II, the Public Documents Act, amends Chapter 33 of Title 44, United States Code, to add §§ 3315 through 3324 thereto, and establish the National Study Commission on Records and Documents of Federal Officials.

Section 101 (a) of Title I directs that the Administrator of General Services, notwithstanding any other law or agreement or understanding (e. g., the Nixon-Sampson agreement), "shall receive, obtain, or retain, complete possession and control of all original tape recordings of conversations which were recorded or caused to be recorded by any officer or employee of the Federal Government and which—

"(1) involve former President Richard M. Nixon or other individuals who, at the time of the conversation, were employed by the Federal Government;

*434 "(2) were recorded in the White House or in the office of the President in the Executive Office Buildings located in Washington, District of Columbia; Camp David, Maryland; Key Biscayne, Florida; or San Clemente, California; and

"(3) were recorded during the period beginning January 20, 1969, and ending August 9, 1974."

Section 101 (b) provides that notwithstanding any such agreement or understanding, the Administrator also "shall receive, retain, or make reasonable efforts to obtain, complete possession and control of all papers, documents, memorandums, transcripts, and other objects and materials which constitute the Presidential historical materials [as defined by 44 U. S. C. § 2101] of Richard M. Nixon, covering the period beginning January 20, 1969, and ending August 9, 1974."

Section 102 (a) prohibits destruction of the tapes or materials except as may be provided by law, and § 102 (b) makes them available (giving priority of access to the Office of the Watergate Special Prosecutor) in response to court subpoena or other legal process, or for use in judicial proceedings. This was made subject, however, "to any rights, defenses, or privileges which the Federal Government or any person may invoke . . . ." Section 102 (c) affords appellant, or any person designated by him in writing, access to the recordings and materials for any purpose consistent with the Act "subsequent and subject to the regulations" issued by the Administrator under § 103. See n. 46, infra. Section 102 (d) provides for access according to § 103 regulations by any agency or department in the Executive Branch for lawful Government use. Section 103 requires custody of the tape recordings and materials to be maintained in Washington except as may otherwise be necessary to carry out the Act, and directs that the Administrator promulgate regulations necessary to assure their protection from loss or destruction and to prevent access to them by unauthorized persons.

*435 Section 104, in pertinent part, directs the Administrator to promulgate regulations governing public access to the tape recordings and materials. Section 104 (a) requires submission of proposed regulations to each House of Congress, the regulations to take effect under § 104 (b) (1) at the end of 90 legislative days unless either the House or the Senate adopts a resolution disapproving them. The regulations must take into account seven factors specified in § 104 (a), namely:

"(1) the need to provide the public with the full truth, at the earliest reasonable date, of the abuses of governmental power popularly identified under the generic term `Watergate';

"(2) the need to make such recordings and materials available for use in judicial proceedings;

"(3) the need to prevent general access, except in accordance with appropriate procedures established for use in judicial proceedings to information relating to the Nation's security;

"(4) the need to protect every individual's right to a fair and impartial trial;

"(5) the need to protect any party's opportunity to assert any legally or constitutionally based right or privilege which would prevent or otherwise limit access to such recordings and materials;

"(6) the need to provide public access to those materials which have general historical significance, and which are not likely to be related to the need described in paragraph (1); and

"(7) the need to give to Richard M. Nixon, or his heirs, for his sole custody and use, tape recordings and other materials which are not likely to be related to the need described in paragraph (1) and are not otherwise of general historical significance."

Section 105 (a) vests the District Court for the District of Columbia with exclusive jurisdiction not only to hear *436 constitutional challenges to the Act, but also to hear challenges to the validity of any regulation, and to decide actions involving questions of title, ownership, custody, possession, or control of any tape or materials, or involving payment of any award of just compensation required by § 105 (c) when a decision of that court holds that any individual has been deprived by the Act of private property without just compensation. Section 105 (b) is a severability provision providing that any decision invalidating a provision of the Act or a regulation shall not affect the validity or enforcement of any other provision or regulation. Section 106 authorizes appropriation of such sums as may be necessary to carry out the provisions of the Title.

III

The Scope of the Inquiry

The District Court correctly focused on the Act's requirement that the Administrator of General Services administer the tape recordings and materials placed in his custody only under regulations promulgated by him providing for the orderly processing of such materials for the purpose of returning to appellant such of them as are personal and private in nature, and of determining the terms and conditions upon which public access may eventually be had to those remaining in the Government's possession. The District Court also noted that in designing the regulations, the Administrator must consider the need to protect the constitutional rights of appellant and other individuals against infringement by the processing itself or, ultimately, by public access to the materials retained. 408 F. Supp., at 334-340. This construction is plainly required by the wording of §§ 103 and 104.^[4]

*437 Regulations implementing §§ 102 and 103, which did not require submission to Congress, and which regulate access and screening by Government archivists, have been promulgated, 41 CFR § 105-63 (1976). Public-access regulations that must be submitted to Congress under § 104 (a) have not, however, become effective. The initial set proposed by the Administrator was disapproved pursuant to § 104 (b) (1) by Senate Resolution. S. Res. 244, 94th Cong., 1st Sess. (1975); 121 Cong. Rec. 28609-28614 (1975). The Senate also disapproved seven provisions of a proposed second set, although that set had been withdrawn. S. Res. 428, 94th Cong., 2d Sess. (1976); 122 Cong. Rec. 10159-10160 (1976). The House disapproved six provisions of a third set. H. R. Res. 1505, 94th Cong., 2d Sess. (1976). The Administrator is of the view that regulations cannot become effective except as a package and consequently is preparing a fourth set for submission to Congress. Brief for Federal Appellees 8-9, n. 4.

*438 The District Court therefore concluded that as no regulations under § 104 had yet taken effect, and as such regulations once effective were explicitly made subject to judicial review under § 105, the court could consider only the injury to appellant's constitutionally protected interests allegedly worked by the taking of his Presidential materials into custody for screening by Government archivists. 408 F. Supp., at 339-340. Judge McGowan, writing for the District Court, quoted the following from Watson v. Buck, 313 U. S. 387, 402 (1941):

"No one can foresee the varying applications of these separate provisions which conceivably might be made. A law which is constitutional as applied in one manner may still contravene the Constitution as applied in another. Since all contingencies of attempted enforcement cannot be envisioned in advance of those applications, courts have in the main found it wiser to delay passing upon the constitutionality of all the separate phases of a comprehensive statute until faced with cases involving particular provisions as specifically applied to persons who claim to be injured. Passing upon the possible significance of the manifold provisions of a broad statute in advance of efforts to apply the separate provisions is analogous to rendering an advisory opinion upon a statute or a declaratory judgment upon a hypothetical case." 408 F. Supp., at 336.

Only this Term we applied this principle in an analogous situation in declining to adjudicate the constitutionality of regulations of the Administrator of the Environmental Protection Agency that were in process of revision, stating: "For [the Court] to review regulations not yet promulgated, the final form of which has been only hinted at, would be wholly novel." EPA v. Brown, 431 U. S. 99, 104 (1977). See also Thorpe v. Housing Authority, 393 U. S. 268, 283-284 (1969); Rosenberg v. Fleuti, 374 U. S. 449, 451 (1963); United States v. Raines, 362 U. S. 17, 20-22 (1960); Harmon v. Brucker, 355 *439 U. S. 579 (1958). We too, therefore, limit our consideration of the merits of appellant's several constitutional claims to those addressing the facial validity of the provisions of the Act requiring the Administrator to take the recordings and materials into the Government's custody subject to screening by Government archivists.

The constitutional questions to be decided are, of course, of considerable importance. They touch the relationship between two of the three coordinate branches of the Federal Government, the Executive and the Legislative, and the relationship of appellant to his Government. They arise in a context unique in the history of the Presidency and present issues that this Court has had no occasion heretofore to address. Judge McGowan, speaking for the District Court, comprehensively canvassed all the claims, and in a thorough opinion, concluded that none had merit. Our independent examination of the issues brings us to the same conclusion, although our analysis differs somewhat on some questions.

IV

Claims Concerning the Autonomy of the Executive Branch

The Act was the product of joint action by the Congress and President Ford, who signed the bill into law. It is therefore urged by intervenor-appellees that, in this circumstance, the case does not truly present a controversy concerning the separation of powers, or a controversy concerning the Presidential privilege of confidentiality, because, it is argued, such claims may be asserted only by incumbents who are presently responsible to the American people for their action. We reject the argument that only an incumbent President may assert such claims and hold that appellant, as a former President, may also be heard to assert them. We further hold, however, that neither his separation-of-powers claim nor his claim of breach of constitutional privilege has merit.

Appellant argues broadly that the Act encroaches upon the *440 Presidential prerogative to control internal operations of the Presidential office and therefore offends the autonomy of the Executive Branch. The argument is divided into separate but interrelated parts.

First, appellant contends that Congress is without power to delegate to a subordinate officer of the Executive Branch the decision whether to disclose Presidential materials and to prescribe the terms that govern any disclosure. To do so, appellant contends, constitutes, without more, an impermissible interference by the Legislative Branch into matters inherently the business solely of the Executive Branch.

Second, appellant contends, somewhat more narrowly, that by authorizing the Administrator to take custody of all Presidential materials in a "broad, undifferentiated" manner, and authorizing future publication except where a privilege is affirmatively established, the Act offends the presumptive confidentiality of Presidential communications recognized in United States v. Nixon, 418 U. S. 683 (1974). He argues that the District Court erred in two respects in rejecting this contention. Initially, he contends that the District Court erred in distinguishing incumbent from former Presidents in evaluating appellant's claim of confidentiality. Appellant asserts that, unlike the very specific privilege protecting against disclosure of state secrets and sensitive information concerning military or diplomatic matters, which appellant concedes may be asserted only by an incumbent President, a more generalized Presidential privilege survives the termination of the President-adviser relationship much as the attorney-client privilege survives the relationship that creates it. Appellant further argues that the District Court erred in applying a balancing test to his claim of Presidential privilege and in concluding that, notwithstanding the fact that some of the materials might legitimately be included within a claim of Presidential confidentiality, substantial public interests outweighed and justified the limited *441 inroads on Presidential confidentiality necessitated by the Act's provision for Government custody and screening of the materials. Finally, appellant contends that the Act's authorization of the process of screening the materials itself violates the privilege and will chill the future exercise of constitutionally protected executive functions, thereby impairing the ability of future Presidents to obtain the candid advice necessary to the conduct of their constitutionally imposed duties.

A

Separation of Powers

We reject at the outset appellant's argument that the Act's regulation of the disposition of Presidential materials within the Executive Branch constitutes, without more, a violation of the principle of separation of powers. Neither President Ford nor President Carter supports this claim. The Executive Branch became a party to the Act's regulation when President Ford signed the Act into law, and the administration of President Carter, acting through the Solicitor General, vigorously supports affirmance of the District Court's judgment sustaining its constitutionality. Moreover, the control over the materials remains in the Executive Branch. The Administrator of General Services, who must promulgate and administer the regulations that are the keystone of the statutory scheme, is himself an official of the Executive Branch, appointed by the President. The career archivists appointed to do the initial screening for the purpose of selecting out and returning to appellant his private and personal papers similarly are Executive Branch employees.

Appellant's argument is in any event based on an interpretation of the separation-of-powers doctrine inconsistent with the origins of that doctrine, recent decisions of the Court, and the contemporary realities of our political system. True, it has been said that "each of the three general departments of government [must remain] entirely free from the control or *442 coercive influence, direct or indirect, of either of the others . . . ," Humphrey's Executor v. United States, 295 U. S. 602, 629 (1935), and that "[t]he sound application of a principle that makes one master in his own house precludes him from imposing his control in the house of another who is master there." Id., at 630. See also O'Donoghue v. United States, 289 U. S. 516 (1933); Springer v. Philippine Islands, 277 U. S. 189, 201 (1928).

But the more pragmatic, flexible approach of Madison in the Federalist Papers and later of Mr. Justice Story^[5] was expressly affirmed by this Court only three years ago in United States v. Nixon, supra. There the same broad argument concerning the separation of powers was made by appellant in the context of opposition to a subpoena duces tecum of the Watergate Special Prosecutor for certain Presidential tapes and documents of value to a pending criminal investigation. Although acknowledging that each branch of the Government has the duty initially to interpret the Constitution for itself, and that its interpretation of its powers is due *443 great respect from the other branches, 418 U. S., at 703, the Court squarely rejected the argument that the Constitution contemplates a complete division of authority between the three branches. Rather, the unanimous Court essentially embraced Mr. Justice Jackson's view, expressed in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952).

"In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence." 418 U. S., at 707 (emphasis supplied).

Like the District Court, we therefore find that appellant's argument rests upon an "archaic view of the separation of powers as requiring three airtight departments of government," 408 F. Supp., at 342.^[6] Rather, in determining whether the Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions. United States v. Nixon, 418 U. S., at 711-712. Only where the potential for disruption is present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress. Ibid.

It is therefore highly relevant that the Act provides for custody of the materials in officials of the Executive Branch and that employees of that branch have access to the materials only "for lawful Government use, subject to the [Administrator's] *444 regulations." § 102 (d); 41 CFR §§ 105-63.205, 105-63.206, and 105-63.302 (1976). For it is clearly less intrusive to place custody and screening of the materials within the Executive Branch itself than to have Congress or some outside agency perform the screening function. While the materials may also be made available for use in judicial proceedings, this provision is expressly qualified by any rights, defense, or privileges that any person may invoke including, of course, a valid claim of executive privilege. United States v. Nixon, supra. Similarly, although some of the materials may eventually be made available for public access, the Act expressly recognizes the need both "to protect any party's opportunity to assert any legally or constitutionally based right or privilege," § 104 (a) (5), and to return purely private materials to appellant, § 104 (a) (7). These provisions plainly guard against disclosures barred by any defenses or privileges available to appellant or the Executive Branch.^[7] And appellant himself concedes that the Act "does not make the presidential materials available to the Congress—except insofar as Congressmen are members of the public and entitled to access when the public has it." Brief for Appellant 119. The Executive Branch remains in full control of the Presidential materials, and the Act facially is designed to ensure that the materials can be released only when release is not barred by some applicable privilege inherent in that branch.

Thus, whatever are the future possibilities for constitutional *445 conflict in the promulgation of regulations respecting public access to particular documents, nothing contained in the Act renders it unduly disruptive of the Executive Branch and, therefore, unconstitutional on its face. And, of course, there is abundant statutory precedent for the regulation and mandatory disclosure of documents in the possession of the Executive Branch. See, e. g., the Freedom of Information Act, 5 U. S. C. § 552 (1970 ed. and Supp. V); the Privacy Act of 1974, 5 U. S. C. § 552 (a) (1970 ed., Supp. V); the Government in the Sunshine Act, 5 U. S. C. § 552b (1976 ed.); the Federal Records Act, 44 U. S. C. § 2101 et seq.; and a variety of other statutes, e. g., 13 U. S. C. §§ 8-9 (census data); 26 U. S. C. § 6103 (tax returns). Such regulation of material generated in the Executive Branch has never been considered invalid as an invasion of its autonomy. Cf. EPA v. Mink, 410 U. S. 73, 83 (1973); FAA Administrator v. Robertson, 422 U. S. 255 (1975).^[8] Similar congressional power *446 to regulate Executive Branch documents exists in this instance, a power that is augmented by the important interests that the Act seeks to attain. See infra, at 452-454.

B

Presidential Privilege

Having concluded that the separation-of-powers principle is not necessarily violated by the Administrator's taking custody of and screening appellant's papers, we next consider appellant's more narrowly defined claim that the Presidential privilege shields these records from archival scrutiny. We start with what was established in United States v. Nixon, supra—that the privilege is a qualified one.^[9] Appellant had argued in that case that in camera inspection by the District Court of Presidential documents and materials subpoenaed by the Special Prosecutor would itself violate the privilege without regard to whether the documents were protected from public disclosure. The Court disagreed, stating that "neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege . . . ."^[10]*447 418 U. S., at 706. The Court recognized that the privilege of confidentiality of Presidential communications derives from the supremacy of the Executive Branch within its assigned area of constitutional responsibilities,^[11] but distinguished a President's "broad, undifferentiated claim of public interest in the confidentiality of such [communications]" from the more particularized and less qualified privilege relating to the need "to protect military, diplomatic, or sensitive national security secrets . . . ." Ibid. The Court held that in the case of the general privilege of confidentiality of Presidential communications, its importance must be balanced against the inroads of the privilege upon the effective functioning of the Judicial Branch. This balance was struck against the claim of privilege in that case because the Court determined that the intrusion into the confidentiality of Presidential communications resulting from in camera inspection by the District Court, "with all the protection that a district court will be obliged to provide," would be minimal and therefore that the claim was outweighed by "[t]he impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch . . . ." Id., at 706-707.

Unlike United States v. Nixon, in which appellant asserted a claim of absolute Presidential privilege against inquiry by the coordinate Judicial Branch, this case initially involves appellant's assertion of a privilege against the very *448 Executive Branch in whose name the privilege is invoked. The nonfederal appellees rely on this apparent anomaly to contend that only an incumbent President can assert the privilege of the Presidency. Acceptance of that proposition would, of course, end this inquiry. The contention draws on United States v. Reynolds, 345 U. S. 1, 7-8 (1953), where it was said that the privilege "belongs to the Government and must be asserted by it: it can neither be claimed nor waived by a private party." The District Court believed that this statement was strong support for the contention, but found resolution of the issue unnecessary. 408 F. Supp., at 343-345. It sufficed, said the District Court, that the privilege, if available to a former President, was at least one that "carries much less weight than a claim asserted by the incumbent himself." Id., at 345.

It is true that only the incumbent is charged with performance of the executive duty under the Constitution. And an incumbent may be inhibited in disclosing confidences of a predecessor when he believes that the effect may be to discourage candid presentation of views by his contemporary advisers. Moreover, to the extent that the privilege serves as a shield for executive officials against burdensome requests for information which might interfere with the proper performance of their duties, see United States v. Nixon, 418 U. S., at 714; cf. Eastland v. United States Servicemen's Fund, 421 U. S. 491, 501-503 (1975); Dombrowski v. Eastland, 387 U. S. 82, 84-85 (1967) (per curiam), a former President is in less need of it than an incumbent. In addition, there are obvious political checks against an incumbent's abuse of the privilege.

Nevertheless, we think that the Solicitor General states the sounder view, and we adopt it:

"This Court held in United States v. Nixon . . . that the privilege is necessary to provide the confidentiality required for the President's conduct of office. Unless he *449 can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depends. The confidentiality necessary to this exchange cannot be measured by the few months or years between the submission of the information and the end of the President's tenure; the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic. Therefore the privilege survives the individual President's tenure." Brief for Federal Appellees 33.

At the same time, however, the fact that neither President Ford nor President Carter supports appellant's claim detracts from the weight of his contention that the Act impermissibly intrudes into the executive function and the needs of the Executive Branch. This necessarily follows, for it must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.

The appellant may legitimately assert the Presidential privilege, of course, only as to those materials whose contents fall within the scope of the privilege recognized in United States v. Nixon, supra. In that case the Court held that the privilege is limited to communications "in performance of [a President's] responsibilities," 418 U. S., at 711, "of his office," id., at 713, and made "in the process of shaping policies and making decisions," id., at 708. Of the estimated 42 million pages of documents and 880 tape recordings whose custody is at stake, the District Court concluded that the appellant's claim of Presidential privilege could apply at most to the 200,000 items with which the appellant was personally familiar.

The appellant bases his claim of Presidential privilege in this case on the assertion that the potential disclosure of *450 communications given to the appellant in confidence would adversely affect the ability of future Presidents to obtain the candid advice necessary for effective decisionmaking. We are called upon to adjudicate that claim, however, only with respect to the process by which the materials will be screened and catalogued by professional archivists. For any eventual public access will be governed by the guidelines of § 104, which direct the Administrator to take into account "the need to protect any party's opportunity to assert any . . . constitutionally based right or privilege," § 104 (a) (5), and the need to return purely private materials to the appellant, § 104 (a)(7).

In view of these specific directions, there is no reason to believe that the restriction on public access ultimately established by regulation will not be adequate to preserve executive confidentiality. An absolute barrier to all outside disclosure is not practically or constitutionally necessary. As the careful research by the District Court clearly demonstrates, there has never been an expectation that the confidences of the Executive Office are absolute and unyielding. All former Presidents from President Hoover to President Johnson have deposited their papers in Presidential libraries (an example appellant has said he intended to follow) for governmental preservation and eventual disclosure.^[12] The *451 screening processes for sorting materials for lodgment in these libraries also involved comprehensive review by archivists, often involving materials upon which access restrictions ultimately have been imposed. 408 F. Supp., at 347. The expectation of the confidentiality of executive communications thus has always been limited and subject to erosion over time after an administration leaves office.

We are thus left with the bare claim that the mere screening of the materials by the archivists will impermissibly interfere with candid communication of views by Presidential advisers.^[13] We agree with the District Court that, thus framed, the question is readily resolved. The screening constitutes a very limited intrusion by personnel in the Executive Branch sensitive to executive concerns. These very personnel have performed the identical task in each of the Presidential *452 libraries without any suggestion that such activity has in any way interfered with executive confidentiality. Indeed, in light of this consistent historical practice, past and present executive officials must be well aware of the possibility that, at some time in the future, their communications may be reviewed on a confidential basis by professional archivists. Appellant has suggested no reason why review under the instant Act, rather than the Presidential Libraries Act, is significantly more likely to impair confidentiality, nor has he called into question the District Court's finding that the archivists' "record for discretion in handling confidential material is unblemished."