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the Government cannot, and should not, be required to divulge. Salus rei publicae suprema lex. The immunity from disclosure of the names or statements of informers is an instance of the same doctrine. This privilege will often impose a grievous hardship, for it may deprive parties to civil actions, or even to criminal prosecutions of power to assert their rights or to defend themselves. That is a consequence of any evidentiary privilege. It is, however, one thing to allow the privileged person to suppress the evidence, and, toto coelo, another thing to allow him to fill a gap in his own evidence by recourse to what he suppresses.

In sum, the court concluded that the defendant was entitled to be confronted in open court with the data from which the trial court had determined that the evidence introduced at the trial was not based upon the taps of the telephones. The court found no excuse which would do away with the constitutional privilege of confrontation provided by the sixth amendment.

At the same time, the court agreed that there might be evidence of a character which would imperil the national security and which the Government could not and should not be required to divulge. The court cited the Executive privilege which had been successfully urged and upheld in Boske v. Comingore (177 U. S. 459) and similar cases (p. 638, footnote 23).

The court also cited United States v. Andolschek, supra, where it had held that when the Government chose to prosecute an individual for crime, it was not free to deny him the right to meet the case made against him by introducing relevant but privileged documents. There was this difference between the two cases. In the Coplon case, the privileged documents were in fact introduced in evidence

and, since we have not seen them and do not mean to look at them, we will assume that they justified the judge's finding that they did not "lead" to any evidence introduced (p. 638).

However, the refusal of the trial court to allow the defendant Coplon to see the documents was a denial of her constitutional right, and there was no significant distinction between introducing evidence against an accused which he is not allowed to see, and denying him the right to put in evidence on his own behalf.

The court recognized that while it might seem to be a "flimsy grievance" to deny the defendant the opportunity to argue that the records did "lead" to her conviction or that she suffered in the slightest from the judge's refusal, nevertheless it could not dispense with constitutional privileges, for—

Few weapons in the arsenal of freedom are more useful than the power to compel a government to disclose the evidence on which it seeks to forfeit the liberty of its citizens (p. 638).

Finally, there remained the question whether the defense was unduly prevented from learning whether the information which originally "led" to "tapping" Miss Coplon's telephones, to tracking her movements, and finally to detecting the crime, was itself the result of "wiretapping." The prosecution conceded that the FBI had been set upon the trail by a "confidential informant." The trial judge had refused to allow the defense to press the examination of an FBI agent as to the identity of the informant. The court held that the testimony suggested that the confidential informant might have been a wiretapper and if he was, the defendant was entitled to learn whether the informant had been a party to any of the intercepted talks.

The court stated that it did not have to hold, and it did not then decide, whether in trying to prove that defendant's telephone conversations had been unlawfully intercepted, and accused may never be blocked on the fact "that his questions call for answers whose disclosure will be a danger to 'national security'" (p. 640). Since the judge had ended all chance of asserting the privilege by deciding the issue on evidence contained in the files, the conviction had to be reversed.

The court, however, did not dismiss the indictment, because the guilt of the defendant Coplon was plain, and if put to another trial the prosecution might decide to divulge the contents of the taps.

(3) THE SOLICITOR GENERAL'S POSITION

Beginning with United States v. Cotton Valley Operators' Com mittee (No. 490, October term 1949), in briefs filed in the Supreme Court, the Solicitor General has urged the position of privilege with respect to materials deemed confidential by the Executive, pointing out that the privilege has been consistently and successfully asserted as against congressional demands, and has been honored by the Federal courts since the earliest days of the Republic.

The Cotton Valley case involved a complaint which charged the defendants with engaging in a combination and conspiracy in restraint of trade. The Government sought to cancel certain agreements entered into by the defendants and to enjoin them from engaging in other activities pursuant to the conspiracy. Agents of the Federal Bureau of Investigation had made an investigation which they set out in the form of reports to the Attorney General. The defendants sought to have the Attorney General produce the reports under rule 34 of the Federal Rules of Civil Procedure.

The Government opposed the motion on the ground that the documents were privileged and that it was exclusively for the Attorney General to determine that question. The district court held that the Government must submit the documents to the court so that it could decide which, if any, were privileged and which should be furnished to the defendants. When the Government refused to comply with this directive, the court dismissed the complaint. On direct appeal to the Supreme Court, the Court divided evenly thus affirming the decision below.

The position taken in the Government brief in the Cotton Valley case may be briefly summarized as follows: 28 Relying upon Chief Justice Marshall's views at the trial of Aaron Burr, the Government asserted that Revised Statute 161, vested in the Attorney General the power and duty to determine the privileged character of the documents which the district court ordered produced. Citing Boske v. Comingore (177 U. S. 467), and other cases, the Government contended that section 161 reflected the constitutional independence of the Executive. It detailed the history of that section, tracing it to the journals of the Continental Congress.29 The brief also referred to Chief Justice Marshall's opinion in Marbury v. Madison and to

See pp. 29-63, No. 490, October term 1949, in the Supreme Court of the United States, United States v. Cotton Valley Operators' Committee. The decision below is reported in 9 F. R. D. 719, affirmed, per curiam by an equally divided court, 339 U. S. 940. 29 Infra, pp. 93-95.

the Government cannot, and should not, be required to divulge. Salus rei publicae suprema lex. The immunity from disclosure of the names or statements of informers is an instance of the same doctrine. This privilege will often impose a grievous hardship, for it may deprive parties to civil actions, or even to criminal prosecutions of power to assert their rights or to defend themselves. That is a consequence of any evidentiary privilege. It is, however, one thing to allow the privileged person to suppress the evidence, and, toto coelo, another thing to allow him to fill a gap in his own evidence by recourse to what he suppresses.

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