It is this less forceful claim that we consider as the basis for Nixon's challenge to the screening process by which the estimated 42,000,000 pages of documents, see Hearings on GSA Regulations Implementing Presidential Recordings & Materials Preservation Act before the Senate Comm. on Gov't Operations, 94th Cong., 1st Sess. at 83 (1975) (hereinafter cited as Senate Hearings on GSA Regulations), 880 tape recordings, see id. at 89, and other materials, see id. at 92, falling within section 101 of the Act will be reviewed. This claim quite plainly does not attach to all of these items, as Mr. Nixon concedes. See Plaintiff's Brief at 98. He estimates that he saw no more than 200,000 of the documents involved, Nixon Deposition at 15-16, and it is uncertain to what extent the privilege protecting presidential confidentiality recognized in United States v. Nixon attaches to materials he never saw.
In any event, like all privileged communications, any communications here protected “must originate in a confidence that they will not be disclosed.” 8 J. Wigmore, Evidence s 2285, at 527 (McNaughton rev. ed. 1961) (emphasis in original). Moreover, as United States v. Nixon suggests, the privilege is limited to communications “in performance of (a President's) responsibilities,”
418 U.S. at 711, 94 S.Ct. 3090, “of his office,”
id. at 713, 94 S.Ct. 3090, and “in the process of shaping policies and making decisions,”
id. at 708, 94 S.Ct. at 3107. See Nixon v. Sirica, supra, at 717 (“in the President's performance of his official duties”); Cox, supra, at 1411 n. 106; cf.
Eastland v. United States Servicemen's Fund, supra, 421 U.S. at 501, 95 S.Ct. 1813 (immunity of legislators deriving from the Speech and Debate Clause encompasses actions within the “ ‘sphere of legitimate legislative activity’ ”), and cases cited. Undoubtedly, some of the 200,000 documents Mr. Nixon himself saw, as well as many of the others and significant portions of the tape recordings, are not related to the discharge of presidential duties and hence fall outside the scope of this protection. Moreover, a strong argument can be made that as to some of the materials encompassed by the Act and related to presidential duties, prior disclosures by Mr. Nixon, see 10 Weekly Comp. of Pres.Docs. 997, 1008-09 (Aug. 3, 1974); 10 id. 449, 450-58 (May 6, 1974); H.R.Rep. No. 93-1305, 93d Cong., 2d Sess., at 191-205 (1974), constitute a waiver of any privilege, see 8 J. Wigmore, supra, ss 2327-29;
C. McCormick, Handbook of the Law of Evidence s 93 (2d ed. E. Cleary 1972); Model Code of Evidence rule 231(b) (1942);
Uniform Rules of Evidence rule 510 (1974);
87 Harv.L.Rev. 1557, 1566-68 (1974), a factor that the court of appeals in this circuit believed to be relevant in judging the relative weight of the competing claims of the grand jury and the President in Nixon v. Sirica, supra, at 717-18.