Concurring dubitante as to Part VI, and dissenting as to Parts 111(B)(1), IV, V, and VII.
I. Closing ÁRgument
Unlike my colleagues, I find the issue whether the IC’s improper statement at closing argument that Secord and Hakim were making a “killing” and “millions” requires reversal of Count 10 quite troubling and therefore choose this unorthodox form — concurring dubitante — to register my opinion.
We must consider this issue as if appellant’s acceptance of the security fence was the only allegation in the case, and North had been only an unknown functionary somewhere in the national security apparatus. Of course, some might say that is wholly artificial because it is unlikely, perhaps inconceivable, that such a person would actually have been prosecuted for accepting a security fence soon after his life had been publicly threatened by a Palestinian terrorist group. Nevertheless, to be scrupulously fair to the IC and appellant, I think we must look at the question just that way.
As the Majority correctly points out, where, as here, timely objection is made, we reverse a conviction on the basis of an improper closing argument only if it “sufficiently prejudiced appellant[] to call for *933reversal.” United States v. Fowler, 608 F.2d 2, 12 (D.C.Cir.1979) (quoting Gaither v. United States, 413 F.2d 1061, 1079 (D.C. Cir.1969)). Of course, the circular phrase “sufficiently prejudiced ... to call for reversal” is no help at all to an appellate court trying to decide in a particular case whether there was enough prejudice to reverse. The Supreme Court once explained the proper inquiry as whether we can say, “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.... [I]f one is left in grave doubt, the conviction cannot stand.” Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946).1 And while the existence of that “grave doubt” is the dispositive question, in this context, as the Majority notes, we have traditionally examined four factors to help us answer it: (1) the closeness of the case, (2) the centrality of the issue affected by the error, (3) the steps taken to mitigate the effects of the error, and (4) the severity of the misconduct. See Fowler, 608 F.2d at 12 (quoting Gaither, 413 F.2d at 1079); United States v. Monaghan, 741 F.2d 1434, 1443 (D.C.Cir.1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985); United States v. Andrade, 788 F.2d 521, 530-31 (8th Cir.), cert. denied sub nom. Riley v. United States, 479 U.S. 963, 107 S.Ct. 462, 93 L.Ed.2d 408 (1986). It is in the weighing of these factors that I see the issue differently than the Majority does.
I consider the improper comments in the IC’s closing argument to be egregious prosecutorial misconduct because they were deliberate rather than inadvertent. The Majority raises the possibility that the IC’s statements were “slips of the tongue in the heat of oral argument,” Maj. Op. at 896, but I have no doubt that these improper statements were intentional. The notion that the IC’s counsel somehow forgot about the colloquy at the bench in which he promised not to introduce evidence of the amount of profits, see Maj. Op. at 896, or that he did not grasp the difference between the existence of profits and the size of profits is too fanciful for serious consideration. Indeed, the IC’s brief does not assert the benign motive that the Majority raises as a possibility. Surely the IC knew perfectly well that North’s defense, that he took the fence solely to protect his wife and children, would tug powerfully at the jurors’ hearts and therefore the IC wished, even to the extent of violating the agreed upon “rules of engagement” of the trial, to impugn North’s motives. None of the cases relied upon by the Majority involved deliberately improper prosecutorial statements. See Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) (no suggestion of deliberate misconduct); United States v. Monaghan, 741 F.2d 1434 (D.C.Cir.1984) (same), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985); United States v. Módica, 663 F.2d 1173, 1185 n. 7 (2d Cir.1981) (“improper remarks ... were not instances of deliberate misconduct.”), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982).
The Majority opinion appears to hold that a single “misstatement” in closing argument cannot constitute severe prosecutorial misconduct. See Maj. Op. at 897. Perhaps that is the proper approach for improper arguments that are indeed “misstatements,” but intentionally improper arguments seem to me to approach misconduct that is per se severe. To be sure, as the Majority points out, the Supreme Court has said that, absent special circumstances, “[ijsolated passages of a prosecutor’s argument, billed in advance to the jury as a matter of opinion not of evidence, do not reach the same proportions [as the consistent and repeated misrepresentation of a dramatic exhibit in evidence.]” Donnelly v. DeChristoforo, 416 U.S. 637, 646, 94 S.Ct. 1868, 1873, 40 L.Ed.2d 431 (1974) (internal quotations omitted). The Court un-*934mediately goes on, however, to explain that:
Such arguments, like all closing arguments of counsel, are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify prosecutorial misconduct, they do suggest that a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning ...
Id. at 646-47, 94 S.Ct. at 1873. The impropriety in this case had nothing to do with imperfect syntax or less than crystal clear meaning — instead, the prosecutor coolly crafted a jury argument cleverly designed to convey information to the jury that he had told the District Judge would help establish “a powerful motive on both sides,” but had, as a strategic matter, agreed not to put into evidence. That is severe misconduct.2
The Majority also places significant weight on the curative measures that the District Judge supposedly took to mitigate the impact of the IC’s argument. It is beyond dispute that corrective instructions can preserve “a defendant’s interest in being free from undue prejudice.” United States v. Perholtz, 842 F.2d 343, 361 (D.C. Cir.), cert. denied, 488 U.S. 821, 109 S.Ct. 65, 102 L.Ed.2d 42 (1988). But the curative instructions here that the Majority discusses, see Maj. Op. at 897, consisted entirely of the standard boilerplate cautions given to all juries that the arguments of counsel are not evidence. And, as we have previously stated, that standard judicial caution is not a “cure-all” for improper arguments. See Gaither v. United States, 413 F.2d 1061, 1079 (D.C.Cir.1969). While the Majority is concerned that reversal in this case “would set a precedent requiring us to overturn virtually every conviction even marginally tainted by such a prosecutorial miscue,” Maj. Op. at 898 — gross hyperbole in my view — I fear the converse problem: that by relying on ostensibly “curative” instructions that are, after all, given in every case, we may immunize prosecutorial misconduct during closing argument from any meaningful appellate review. When á defendant timely objects to a closing argument that is, like this one, improper, the District Judge should give a curative instruction that focuses particularly on the improper argument, see, e.g., Donnelly, 416 U.S. at 641, 94 S.Ct. at 1870 (denying habeas corpus relief where trial judge told the jury that there was no evidence to support prosecutor’s statement and that they are to ignore it), not a general disclaimer buried in an introductory portion of an enormously complicated jury charge that covered a full ninety-five pages. Of course nothing more was done to ameliorate the problem here since the District Judge erroneously did not consider the IC’s argument to be improper at all, which is in part why this case is unusual.
The Majority’s conclusion ultimately rests on its determination that “it appears virtually certain that the jury would have convicted North on this count in the absence of the prosecutor’s reference to the size of [Secord’s and Hakim’s] profits.” Maj. Op. at 897 (emphasis added). I wish I shared my colleagues’ confidence. North did freely admit that he accepted the security fence from Secord, but in order to convict, the jury had to find that he accepted it for or because of an official act. The kind of profits earned by Secord and Hakim was certainly relevant to the question of North’s motive — even the IC candidly admitted to the District Judge that, “the *935amount certainly gives a powerful motive on both sides.” (J.A. 1136).3 The IC’s improper argument was, it seems to me, deliberately designed to sway the jury on precisely that central issue. North testified that he believed that the fence was offered by Secord, and that he accepted it, out of a legitimate and genuine concern for the safety of North’s family, not, as the IC alleged, in return for directing business to Secord and Hakim. Given that North accepted a security fence rather than a car or cash, and that Abu Nidal’s terrorist group publicly threatened North’s life in April 1986, soon before Secord gave him the security fence, it was not so hard to credit North’s explanation, or at least to believe that North himself believed it. That latter belief would have been sufficient grounds for acquittal. According to the District Judge’s instructions, in order to convict, the jury had to find that North specifically intended to receive the security system for an official act, “not for reasons wholly unrelated to his official employment.” (J.A. 653).
Still, there was plenty of evidence in the case tending to establish that North did take the fence for or because of an official act. Most obvious, of course, is the inherent suspiciousness of a government official accepting a $14,000 gift from someone to whom he has directed millions of dollars of business (without regard to the amount of profit). In addition, there was evidence that, in December of 1986, after the public disclosure of the Iran/Contra affair and North’s discharge from the NSC, and apparently after consulting with legal counsel, North made it appear as though he had purchased the security system, which may have raised the inference in the jurors’ minds that North thought it was improper to accept the system from Secord.4 I think the evidence was such that the jury probably would have convicted on this Count regardless of the improper arguments, though it is by no means “virtually certain.” Because I therefore believe that the outcome was probably not “substantially swayed by the error,” Kotteakos, 328 U.S. at 765, 66 S.Ct. at 1248 and because the Majority is correct that we treat reversal as an extraordinary step in this context, I concur in the result, albeit with considerable doubt that I am correct.
II. CIPA
I believe that the district judge committed reversible error in the way he decided, or more accurately, refused to decide, the CIPA issue. Buried within the Majority’s exhaustive and, frankly, impenetrable discussion of the “Statutory Framework” and “Course of Events” is the following simple and discrete issue. Prior to trial, North was forced to disclose to the IC a 162-page “narrative summary” of all the classified evidence he expected to reveal at trial, pursuant to the CIPA statute. As might be expected, whenever a defendant is compelled to disclose aspects of his case prior to trial, the statute directs the district court to “order the United States to provide the defendant with the information it expects to use to rebut the classified information,” 18 U.S.C.App. § 6(f), “unless the interests of fairness do not so require.”5 Even though North filed a motion praying for the reciprocal discovery guaranteed him by the statute, the district court ignored the motion and the IC never had to reveal the information it used to rebut the evidence disclosed in North’s 162-page narrative summary.
The Majority describes that course of events as “the judge’s lack of strict adherence to CIPA’s sequential directives,” further noting that the judge “did not move straightforwardly down the procedural path set out in CIPA § 6.” Maj. Op. at *936901. I do not think that this deprivation of the defendant’s rights can be obscured by euphemism. The trial court’s behavior quite obviously contravened the statute, but more importantly, it violated the Constitution, see Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973). In Wardius, the Supreme Court held that it was a violation of due process for an Oregon statute to require defendants to disclose alibi defenses to the prosecution unless reciprocal discovery — that is, revealing the evidence the prosecution expects to use to refute the defendant’s alibi — were mandated. The Court noted that, “if there is to be any imbalance in discovery rights, it should work in the defendant’s favor.” 412 U.S. at 475 n. 9, 93 S.Ct. at 2212 n. 9. It is crystal clear, then, that disclosure provisions of CIPA would be unconstitutional if the reciprocity section were not part of the Act. Therefore, if the district judge “amends the statute” by simply refusing to enforce that portion he renders it unconstitutional. North was required to disclose an enormous portion of his case, under a regime where he got nothing in return. Wardius forbids forced disclosure by defendants under those circumstances.6
The Majority would appear to circumvent Wardius, by relying on a placebo; that North got a great deal of miscellaneous discovery from the IC in this case, see Maj. Op. at 900 n. 36 (“some 900,000 pages of government documents”) and that the district judge “provided North with more procedural safeguards than CIPA requires,” on issues that seem to me to be totally removed from the issue before us, see id. at 902.7 But Wardius does not stand for the proposition that a defendant can be required to disclose details about his case so long as the defendant receives a certain amount (obviously unquantifiable) of “bonus” discovery about issues unrelated to the evidence he had to disclose. Rather, Wardius holds that the defendant cannot be forced to disclose elements of his case unless he receives from the prosecutor the evidence to be used to refute the disclosed elements. See Wardius, 412 U.S. at 476, 93 S.Ct. at 2213. (“It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State.”) (emphasis added).
Given this error of constitutional dimension, the conviction must be reversed unless we can say it was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). I do not see how we can say the defendant was not harmed when he is forced, over his objection, to disclose a 162-page summary of the evidence he intends to put on at trial and is denied information from the prosecution about how that evidence will be rebutted at trial. It is surely indisputable that North was “harmed” by having to turn over his 162-page summary. As the District Court found, North’s CIPA narrative “contains references to many pertinent facts and circumstances which the Court believes are likely to alert Independent Counsel to aspects of issues not previously brought to his attention.” (J.A. 459). Indeed, the IC does not dispute that North’s proffer was valuable for planning his trial strategy, see IC Br. at 52 n. 100 (conceding “North’s notice was ... ‘partially revealing’ ”), nor *937could he in good faith.8 Since the IC was not entitled to North’s proffer unless it revealed its refuting evidence, any use he made of North’s proffer to strengthen its case (and it is preposterous to believe that he did not do so by, for example, fine-tuning arguments, pursuing new lines of questioning and dropping others) was an unfair advantage traceable to the error. Once that is understood, the prejudicial effect of the error committed here is clear.
The Majority nonetheless holds that the error was not prejudicial, asserting that “North ... has adduced no evidence of prejudice resulting from the court’s error. Despite the benefit of a full trial record, North fails to demonstrate how he was surprised or prejudiced by prior unawareness of any of the evidence presented by the IC at trial.” Maj. Op. at 902 (emphasis added). The flaw in that reasoning is obvious. The Majority artificially focuses solely on the prejudice vel non of not receiving the IC reciprocal disclosure, as if that issue were entirely separate from North’s having to disclose his case. As I argued above, that is just not so — the two steps cannot be separated. Statutes requiring defendants to disclose elements of their cases to prosecutors are inherently suspect and are permissible if and only if defendants receive the corresponding refutation evidence. When the statute lacks such a provision, it is a due process violation to require disclosure by the defendant, and in such a case, a court must determine whether the compelled disclosure was harmless to the defendant. North was effectively subject to just such a statute. He cannot be made worse off merely because the statute happens to contain a reciprocity provision which the judge refused to enforce. That is equivalent to arguing the same statute would be unconstitutional on its face but not as applied to North — surely a new approach to interpreting the Constitution. It was error to require North to divulge evidence to the IC because North did not receive the refuting evidence. In such a situation prejudice is measured both from North’s disclosure to the IC (as to which North was surely harmed) and from the failure of the IC to make the required disclosures.
But even measuring the harm to North without regard to his disclosure, the Majority’s approach is mistaken in that it assumes that the only value of a reciprocal proffer from the prosecution is that it would reveal that the prosecution had evidence that the defendant did not know that it had. That is incorrect. Suppose the reciprocal proffer that the IC should have made here would have indicated that the IC was not aware of a powerful piece of evidence that North had thought the IC was aware of. Surely that proffer would have been enormously useful to North, yet it is obviously impossible for him to prove, or even allege, prejudice of that type when the IC did not reveal any refutation evidence.
It is particularly disturbing that the Majority rests its decision on this important issue on a basis not even argued by the IC. It was never claimed that the judge, at worst, committed harmless error, still less, that “harm” could be measured, as does the Majority, by asking only whether North had shown he was “surprised” by the evidence presented by the IC. In fact, if North could have known beforehand that “surprise” was the key to show prejudice, it would have been rather easy for his counsel to meet that test since virtually all evidence put in by one’s opponent at trial surprises counsel to some extent. For that reason, the only defendant who could ever suffer because of the Majority’s newly adopted prejudice standard is Oliver North. Some surprise.
>f: * sjt * * *
For the foregoing reasons, I would reverse North’s convictions on this ground.
III. Authorization and Intent
I disagree with my colleagues on the question whether the District Judge’s in*938structions were also erroneous regarding the relevance of North’s evidence of his superior’s instructions or communications as to Count 6. I do not see the sharp distinction the court does between how those instructions bear on Count 6 and 9; I think on both Counts the District Judge was in error.
North was convicted under Count 6 of aiding and abetting John Poindexter and/or William Casey in their obstruction of a congressional inquiry, in violation of 18 U.S.C. § 1505. That section, in relevant part, provides:
Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence obstruct, or impede ... the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress [commits a crime].
The indictment alleged that North’s role in Casey’s and Poindexter’s endeavor to obstruct consisted of two distinct activities. First, he allegedly helped to prepare a false chronology — to be used by Casey and/or Poindexter when they testified before congressional committees — that concealed the United States’ role in arms shipments to Iran in November of 1985. Second, the indictment charges that North destroyed, altered, and removed NSC records concerning both the arms sales to Iran and U.S. efforts to aid the Contras, the same conduct that underlies Count 9.
The District Judge instructed the jury that section 1505 required the prosecution to show that North acted with what the district judge called “specific corrupt intent.” 9 That phrase was apparently meant to convey a level of mental culpability somewhere in between what is required in ordinary “specific intent” crimes and subjective knowledge of unlawfulness. In its jury charge, the District Court explained specific intent as follows:
Specific intent requires ... something more than ... a mere general intent_ Specific intent requires that a person not only acted knowingly, voluntarily and deliberately, but that he acted with a bad purpose, having decided in his mind what he would do, and that he then did something prohibited.
(J.A. 672-73). Later, the court elaborated on the phrase “bad purpose,” saying that the defendant had a bad purpose “if he specifically intended to do something the law prohibits, whether he knew of the law or not.” (J.A. 674). It is unclear whether that instruction means that the jury was to find (1) that North specifically intended to do something that the law happens to prohibit or (2) that he was subjectively aware that the thing he intended to do was illegal.
That the District Judge intended to convey the first meaning was made clear in the subsequent discussion focused particularly on Count 6, where the District Court attempted to give meaning to the word “corruptly” in the statute by charging:
[T]he obstruction count[] involve[s] not only the element of specific intent but [also that the] defendant must have acted corruptly_ [A] deliberate, knowing bad purpose is not enough to convict. He must be shown beyond a reasonable doubt to have had the bad purpose to act in the precise manner a statute was intended to prevent, that is, to obstruct or try to obstruct an inquiry .... To find that the defendant acted with specific corrupt intent in the obstruction counts, he must be shown to have also acted with the bad purpose of doing the thing prohibited by the particular statute. A person who has this purpose and does an act knowingly and intentionally, with the deliberate purpose to conduct himself in a manner prohibited by the statute, acts with specific corrupt intent.
(Emphasis added). [J.A. 676-77].
North argues that these instructions are reversible error, even apart from the autho*939rization issue, because the prosecution should have had to show that he acted with the subjective knowledge that his acts were unlawful. If North were correct on this point, there would be no doubt that the jury should have been free to consider all evidence of authorization in the record when it determined whether North knew he was acting unlawfully. See Maj. Op. at 885 (reversing Count 9 on this ground). In support of his position, North cites United States v. Haldeman, 559 F.2d 31, 114 n. 226 (D.C.Cir.1976) (per curiam) (en banc), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977), where we said that the government, to establish specific intent in a prosecution for violating 18 U.S.C. § 1503:10
must prove that the defendant knowingly did an act which the law forbids, purposely intending to violate the law. This is not to say, however, that the accused must have known he was violating a specific statute, but only that he knew he was acting wrongly or violating the law in general when he acted.
(citations and internal quotations omitted, emphasis in original). That language does lend support to North’s position, but I am not entirely sure that the Haldeman court meant what it said in that footnote. The definition of specific intent given by the district court in Haldeman provided that “[a] person who knowingly does an act which the law forbids intending with bad purpose either to disobey or disregard the law, may be found to act with specific intent.” Id. at 113 (emphasis added). That formulation of specific intent might be satisfied, it seems, without any subjective awareness by the defendant that he was violating the law, if he had the purpose to disregard the law. To be sure, that is a subtle distinction since a person who “intend[s] with bad purpose to ... disregard the law,” must have some inkling that his behavior is in that range of bad conduct that might be prohibited by law. Still, the formulation of specific intent as meaning “bad purpose either to disobey or disregard the law,” is apparently the normal specific intent instruction given in this circuit, and we have never before held that it required proof of the defendant’s subjective knowledge of unlawfulness. (I note, however, that the district court here did not give the usual “bad purpose to disobey or disregard the law” instruction which I discuss above.) And in any event, my answer to the question whether the jury was improperly constricted in its consideration of evidence of authorization turns less on the proper definition of specific intent per se than on the closely intertwined issue of the proper reading of section 1505, and the word “corruptly” in particular.
North’s primary rationale for arguing that knowledge of unlawfulness was required for Count 6 was that, absent such knowledge, there was no assurance that the individuals involved “were on notice that the conduct at issue [was] ‘corrupt’ in the eyes of the law." [N.Br. at 63]. For this argument, North relied for support principally on United States v. Reeves, 752 F.2d 995, 1001-02 (5th Cir.), cert. denied, 474 U.S. 834, 106 S.Ct. 107, 88 L.Ed.2d 87 (1985), which held that 26 U.S.C. § 7212(a)11 — which forbids “corrupt[ ]” endeavors to obstruct or impede the administration of the tax laws — requires the proof that the defendant intended to secure improper benefits or advantages for himself or others. The Fifth Circuit thought that interpretation was required in order to ensure that potential violators would know that their conduct is corrupt. Courts generally avoids constructions of criminal statutes that would render punishable behavior that would not be obviously wrongful to potential violators. See, e.g., Liparota v. United States, 471 U.S. 419, 426-27, 105 S.Ct. 2084, 2088-89, 85 L.Ed.2d 434 *940(1985);12 Morissette v. United States, 342 U.S. 246, 250 n. 4, 72 S.Ct. 240, 243 n. 4, 96 L.Ed. 288 (1952) (“our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.”) (quotations omitted). While I would decline to hold here that section 1505 requires knowledge of unlawfulness (even Reeves did not go that far for section 7212(a)), I do think that a fair reading of section 1505 sustains North’s objections to strictures placed on the jury’s consideration of the evidence of authorization in the record.
Section 1505, it will be recalled,- makes it a crime to “corruptly, or by threats or force, or by any threatening letter or communication ... endeavor[ ] to influence, obstruct, or impede [a congressional inquiry].” Construing the statute would appear to be rather simple when the government alleges that someone has endeavored to influence, obstruct, or impede a congressional inquiry by threats or by force or by a threatening communication. The problem arises where, as here, someone is accused of corruptly endeavoring to influence or obstruct a pending congressional inquiry. What does “corruptly” mean in that context?
I start from the rather unremarkable proposition that the word “corruptly” in section 1505 means something. That is, the word “corruptly” modifies the word “endeavor” — by describing either the defendant’s means or his motive or both — and thereby adds something substantive to the statute. And, in general, where, as here, Congress does not indicate otherwise, we should give statutory terms their common or popular meanings. See Perrin v. United States, 444 U.S. 37, 41-45, 100 S.Ct. 311, 313-15, 62 L.Ed.2d 199 (1979). According to Webster’s Third New International Dictionary, “corruptly” is the adverbial form of the adjective “corrupt,” meaning “depraved, evil: perverted into a state of moral weakness or wickedness ... of debased political morality: characterized by bribery, the selling of political favors, or other improper political or legal transactions or arrangements_” Also instructive is the definition in Blaok’s Law Dictionary at 311 (5th ed. 1979) that the word corruptly “[w]hen used in a statute, ... generally imports a wrongful design to acquire some pecuniary or other advantage.”
It is hard to believe that anyone could quarrel with that last paragraph,13 but there are cases — primarily dealing with section 1503 — which interpret “corruptly” to refer to the defendant’s motive but then inconsistently say that the bad or evil motive denoted by the word “corruptly” means nothing more than an intent to obstruct the proceeding. See, e.g., United States v. Laurins, 857 F.2d 529, 536-37 (9th Cir.1988) (“The specific intent required for obstruction of justice under sections 1503 and 1505 is that defendant must have acted ‘corruptly,’ i.e., that the act must be done with the purpose of obstructing justice.”), cert. denied, — U.S. -, 109 S.Ct. 3215, 106 L.Ed.2d 565 (1989); United States v. Jeter, 775 F.2d 670, 679 (6th Cir.1985) (section 1503’s “mens rea requirement that a person must ‘corruptly’ endeavor to interfere with the due administration of justice ... [dictates that one must act with] the specific intent of purpose to obstruct.") (emphasis in original); United States v. Ogle, 613 F.2d 233, 238 (10th Cir.1979) (stating, in section 1503 case, that “an endeavor to influence a juror in the performance of his or her duty or to influence, obstruct or impede the due administration of justice is per se unlawful and is tantamount to doing the act corruptly.”), cert. denied, 449 U.S. 825, 101 S.Ct. *94187, 66 L.Ed.2d 28 (1980).14 The interpretation described in those cases reads the word “corruptly” out of the statute.15 If the statute says that it is a crime if one “corruptly endeavors to obstruct [an inquiry or proceeding]” it simply makes no sense to construe that to mean only that one must do it with the intent to obstruct the inquiry or proceeding. Indeed, the word “endeavor” in the statute already requires that the defendant intend to obstruct the inquiry or proceeding. The Majority goes through the exercise of defining the word corruptly, see Maj. Op. at 881-882, but then appears to ignore it in exactly the way I describe.
That is not to say that I believe that all of those courts necessarily reached wrong results, since those opinions can be taken to express the view that any endeavor to obstruct a judicial proceeding is inherently — that is, as a matter of law — corrupt. Indeed, some of the cases say as much. See, e.g., Ogle, 613 F.2d at 239 (the term corruptly “is directed to the effort to bring about a particular result such as affecting the verdict of a jury or the testimony of a witness.... This is per se an obstruction of justice.... [I]f the jury believed the evidence in this case, the [defendant’s] motives were inherently evil.”). And at least for the conduct covered by section 1503 that legal presumption might be warranted since, after all, very few noneorrupt ways to or reasons for intentionally obstructing a judicial proceeding leap immediately to mind. The Fifth Circuit has made similar observations;
Although the special considerations surrounding a criminal trial have caused courts interpreting section 1503 to impute “corrupt” intent to many practices, the independent significance of this term has not been suppressed.... [W]here a defendant has endeavored to obstruct a criminal proceeding, the “advantage inconsistent with the duties and rights of others” is so clear that courts have often been willing to impute the desire to obtain such advantage on a per se basis.... [S]ection 1503 presupposes a proceeding the disruption of which will almost necessarily result in an improper advantage to one side in the case.
United States v. Reeves, supra, 752 F.2d at 999.
But to import that legal presumption to section 1505 — and thus to assert that all endeavors to influence, obstruct or impede the proceedings of congressional committees are, as a matter of law, corrupt— would criminalize a range of innocent behavior. Unlike courts of law covered by section 1503, congressional committees are part and parcel of a political branch of government and therefore serve wide-ranging political functions not limited to a search for truth in accordance with formal rules. They may also have a far-flung investigative scope and evoke legitimate political jousting between the executive and legislative branches. No one can seriously question that people constantly attempt, in *942innumerable ways, to obstruct or impede congressional committees. In addition to the examples set forth in the Majority Opinion (the call from the “executive branch official” and the “political activist”) but never confronted, I suggest another example which, to my mind, rings all too true historically. Consider a Senate committee contemplating legislation that is unfavorable to trade unions. Suppose also that the committee initiated an investigation into alleged union corruption and union leaders got together and said, “Those congressmen are not interested in union affairs, they just want a justification for passing an anti-union bill. Let’s not provide any information to the committee unless legally compelled.” Is that a crime? The Majority, as far as I can detect, gives no answer to my question.
If there could be any doubt about my interpretation of “corruptly,” it is eliminated by focusing on the term “influence” in section 1505, which appears in a parallel construction with “obstruct” and “impede.” It is thus possible to be charged with “corruptly endeavoring to influence” a congressional inquiry. And whatever it might mean to commit that crime, it must require something more than merely acting with the purpose of influencing the congressional committee. If attempting to influence a congressional committee by itself is a crime, we might as well convert all of Washington’s office buildings into prisons. Some might not think that such a bad idea, but I doubt that Congress so intended. That, however, is precisely the reading of the statute apparently embraced by the Majority.
I tend to agree with the Majority’s statement, see Maj. Op. at 883, that North was “entitled only ... to a jury that applied ‘corruptly’ according to its usual definitions.” But the Majority also claims that that requirement was satisfied by “the instruction given,” an instruction the Majority does not quote. That instruction is the one I set out at page 938 supra and which I repeat here in the margin.16 Quite clearly, that instruction does not permit the jury to “apply ‘corruptly’ according to its usual definitions,” but instead instructs them that a corrupt intent means merely an intent to obstruct. That is precisely the view that the Majority, at other points in its opinion, claims to disavow. See Maj. Op. at 882.
I am therefore convinced that, at least when a defendant is accused under section 1505 of corruptly endeavoring to obstruct a congressional committee, the word “corruptly” in the statute requires the prosecution to show something beyond a mere intent to obstruct the committee.17 Properly construed, section 1505 also requires the prosecution to prove that the endeavor was undertaken “corruptly,” that it was depraved, evil, or wrongful. And it seems inescapable that this is a question of fact for the jury to determine whether an endeavor was undertaken corruptly.
Recognizing that the word “corruptly” in section 1505 should be construed to mean what it says does not end the inquiry since it is not clear from the face of the statute exactly what must be corrupt. While “corruptly” surely modifies the verb “endeav- or,” to say that someone corruptly endeavors to obstruct an inquiry might mean (1) that he does so with a corrupt purpose, or *943(2) that he does so by independently corrupt means, or (3) both.
The second view seems, at first glance, to be most faithful to the grammatical structure of section 1505, the first clause of which is structured as a list of techniques, each separated by an “or,” describing how the'endeavor to influence, obstruct or impede must be undertaken in order to be illegal. Thus, the adverbial words or phrases “corruptly,” “by threats or force,” and “by any threatening letter or communication” are equated, suggesting that Congress meant “corruptly” to refer to the means by which the defendant endeavored to influence or impede a congressional inquiry. If the jury focuses on the means chosen by the defendant in his endeavor to obstruct, it would not necessarily need to probe the morality or propriety of the defendant’s purpose — something the criminal law ordinarily eschews. See generally People v. Roberts, 211 Mich. 187, 178 N.W. 690 (1920) (husband who poisons terminally ill wife at her request nonetheless guilty of murder); 1 W. LaFave & A. Scott, Substantive Criminal Law § 3.6. The “means” view does seem to mitigate that problem since, for example, a defendant who bribes the chairman of a congressional committee can be said to have acted “corruptly” no matter, how laudable his underlying motive.
But when the jury determines whether the endeavor was undertaken corruptly, it seems to me to be possible to ignore the defendant’s purpose and consider solely his means only when those means are themselves independently criminal — as in the bribery example above. Whenever the means used are not independently criminal, the jury cannot avoid considering the defendant’s purpose if it is to meaningfully determine whether the endeavor was corrupt or evil or depraved. Suppose, for example, that a lawyer advises his client not to testify before a congressional committee conducting an inquiry. He is intentionally obstructing the inquiry (suppose he admits as much), but can the jury really decide if he has done so corruptly by examining his means alone? It would seem that the corruptness determination would necessarily hinge on his purpose. The obstruction would not be corrupt if his purpose were solely to protect his client from possible legal difficulties. But it might well be corrupt if the lawyer’s purpose were to prevent the client from divulging information that would implicate the lawyer. Cf. United States v. Cintolo, 818 F.2d 980 (1st Cir.1987). And even when the means used are less neutral on their face, the jury’s ultimate decision on the corruptness question could depend in part on the defendant’s purpose. In any event, I do not think that the courts could legitimately instruct juries as to which legal, if unsavory, means of influencing a congressional committee are corrupt and which are not. If that is so, then the jury must be permitted to consider the defendant’s purpose or else they would be put in the anomalous position of having to decide whether attempting to influence a committee by advising one’s client not to testify is a corrupt thing in the abstract, regardless of why one did so.
I therefore think that it is unavoidable that the jury may properly consider the defendant’s purpose for endeavoring to obstruct a congressional committee in those cases where the means utilized were not independently criminal.18 But that does *944not mean that its probe would be entirely open-ended. They would be interested only in whether the defendant was attempting to secure some advantage for himself or for others that was improper or not in accordance with the legal rights and duties of himself or others. If so, the defendant’s underlying motive or justification, no matter how laudable, would not exonerate him. But to the extent that the jury must examine the defendant’s motive or purpose, in that narrow sense, in making its corruptness determination, it must be permitted to consider, at the very least, evidence tending to show that the defendant believed that the nature of his conduct (as opposed to its underlying justification) was appropriate — that is, in accordance with the law. The Majority declares the implications of this view to be “stunning,” asking whether it would permit a bigoted or otherwise biased jury to excuse a white supremacist official or a “self-styled Robin Hood” who altered documents. See Maj. Op. at 884. Of course, a bigoted jury might exculpate a white supremacist defendant out of sympathy for his views but, given my narrow view of the relevance of purpose, that outcome could only arise if the jury refused to follow proper instructions. Jury nullification is a problem (and it can happen even when the jury is told to ignore motive entirely), but it is not the one before us. Our concern is how the jury should be instructed and what evidence they should be told to consider.
I have used throughout this discussion the word “purpose” rather than the Majority’s word “motive.” I do so because “motive” — particularly as the Majority uses the term — can refer to a defendant’s underlying reason for committing the act. “I stole the loaf of bread because my family is hungry” or “I bribed the Chairman of the Committee to focus the Committee’s investigation toward corporate polluters rather than on the way in which certain environmental groups are financed because, in that way, environmental goals would be furthered.” To be sure, intent, purpose, and motive are concepts along a continuum, but whatever the appropriate term, I do not think the jury can be barred from considering those factors that contributed to North’s view of the nature of the acts he committed under this statute.
It seems clear to me, then, that the jury was entitled to examine purpose in this case when deliberating on Count 6. The indictment specified two separate means that North allegedly used to aid and abet the endeavor to obstruct the congressional inquiry. First was assisting in the preparation of a false chronology that Poindexter and Casey could refer to while giving'testimony before the committees. The chronology was apparently designed to conceal any official United States knowledge of an involvement in a November 1985' shipment of arms to Iran, clearly a material fact to the committees’ inquiries. Since purposely giving false material testimony to a congressional committee is itself ■ unlawful (whether or not one is under oath), see 18 U.S.C. § 1001, North’s preparation of it (which he freely admitted) could have involved the aiding and abetting the- making of a false statement to Congress. Although the IC does not make this argument, perhaps because the false statements were never actually made and thus the chronology was never used (and North was not charged with this crime), I assume ar-guendo that North’s aid in the preparation of the false chronology for Poindexter and Casey could constitute the basis of a jury determination of corrupt means — without regard to purpose.
The indictment also alleged, however, that North used a second means to aid the *945endeavor to obstruct, namely, that he altered, destroyed, and removed certain NSC documents. As North correctly argues, we must assume for the purposes of this appeal that the jury’s guilty verdict on this count could have rested on this alleged underlying act rather than on the chronology. Indeed, it is not even unlikely that the jury’s verdict on Count 6 depended on the document destruction rather than the preparation of the chronology. North’s personal involvement with the documents was clear whereas the chronology was less obviously North’s own venture. As North testified, the chronology “was a false statement when it arrived” on his desk. (J.A. 1678). In addition, the most misleading changes to the chronology were made personally by Robert McFarlane. Under those circumstances, it is not hard to believe that the jury was more willing to hold North responsible for the document-related “means” than for the chronology “means.” The crucial point here is that, as we have recognized, see Maj.Op. at 888, destroying these documents is not a criminal act in and of itself unless it is done with subjective knowledge of unlawfulness. Indeed, we reverse the conviction on Count 9 precisely because we conclude that the jury had been improperly instructed on the issue of North’s intent, therefore making illegitimate the jury’s conviction on that count. (The Majority opinion on this count is inconsistent with the Majority opinion on Count 9.) Without that verdict, we are left with the mere allegation that North aided and abetted an endeavor to obstruct a congressional inquiry by destroying documents. Destroying documents (whether or not in violation of regulations) is not a crime. Government officials, particularly those who deal with security matters, often shred documents as a matter of course — to do otherwise might create serious dangers or, in some circumstances, violate the law. Therefore, when the jury decides, as it must, whether the endeavor was undertaken corruptly, it could not conclude that “destroying documents,” without regard to purpose, is a corrupt means of obstructing the committee. Thus, the jury would have to consider the factual context in which the documents were destroyed — including North’s purpose as I have narrowly delimited that term.
The evidence of authorization that the jury was instructed not to consider and his interaction with his colleagues in general formed part of the factual context that was central to a proper jury examination of North’s purpose. North claimed that he destroyed and altered these documents— pursuant to the direct instructions of Casey, Poindexter, McFarlane, and the indirect instructions of President Reagan — in order to protect sensitive covert operations involving Iran and the Contras. The jury was not entitled to exonerate the appellant merely because he was “following orders” regardless of whether he thought those instructions proper. But any communication from colleagues, superiors or not, may have affected North’s purpose — in the narrow sense of that term discussed above— and is therefore legitimately considered in determining whether appellant acted corruptly in a case such as this where the means employed were not themselves independently unlawful.
It is for the jury, not the judge, to decide whether implicit, even vague, instructions to the defendant bear significantly on the corruptness of the defendant’s endeavor. And it is for the jury, not the judge, to ask whether the reasonableness of the appellant’s belief in the propriety of his superiors’ behavior and instructions should be considered relevant to that inquiry. I find no justification, moreover, for the judge’s most damaging instruction that if a person chooses a course of action of “dubious legality” to satisfy “authorization” when a clearly legal course would comply, then “authorization cannot be viewed as affecting intent.” Under that instruction, it is not even necessary for the defendant to be aware that the clearly legal course of action was available to him. The judge’s formulation might be the wisest approach for the jury to follow, but it is not one that I can say it was obliged to take as a matter of law.
* * # * * *
*946The Majority appears to agree with a good deal of my analysis yet reaches the opposite result. I confess I am unsure by what logical process the Majority arrives at its destination. It would appear that the Majority’s reasoning is diverted by inappo-site historical analogies (Becket, Nuremberg) away from a careful parsing of the statute which we must construe.
“I was only following orders,” see Maj.Op. at 884, resonates powerfully (and horrifyingly) in the world’s collective memory — but to so describe North’s defense is, in my view, an unfair characterization of it. His appeal on this count is that the District Court did not permit the jury to consider whether North thought he was acting corruptly, thus illegally. Only a short time ago in a less notorious case we said that “[t]he government’s burden is to prove the requisite mens rea of the offense charged; if appellant did not harbor the necessary criminal intent, then she is not guilty regardless of whether her mistaken understanding of the law was objectively reasonable,” United States v. Rhone, 864 F.2d 832, 835 (D.C.Cir.1989). We do not have to embrace that formulation to agree with North here — for this statute requires an even stronger showing of intent than was true in Rhone, but instead the Majority tacks in the opposite direction and, in my view, not only abandons Rhone, it renders the word “corruptly” meaningless.
IV. Reagan Subpoena
Appellant seeks reversal of his convictions on Counts 6 and 9 on the added ground that the district court erroneously quashed his subpoena to former President Ronald Reagan. On the basis of the record as it appears before us, I believe it was serious error to have quashed the subpoena, and therefore I dissent from the Majority opinion on this ground also.
A.
Prior to his trial, appellant served then-President Reagan with a subpoena ad testi-ficandum. Mr. Reagan, represented by the Attorney General, moved to quash the defendant’s subpoena. While the record does not reveal the grounds of Mr. Reagan’s motion, neither does it indicate that he formally asserted executive privilege. The District Court held the matter in abeyance until the trial was underway, by which time Mr. Reagan had left office. It then ordered the defendant to file “under seal, ex parte, a succinct particularized statement of facts defendant desires to elicit from President Reagan.” Order, March 27, 1989, 1989 WL 57512 (J.A. 496, 497). Appellant identified thirteen subjects on which he expected to elicit favorable testimony from Mr. Reagan, many of which were primarily relevant to Counts on which he was later acquitted. In preparing that proffer, North did not have the advantage of examining the testimony that Mr. Reagan voluntarily provided to the Independent Counsel by way of sworn interrogatories or the notes prepared from Mr. Reagan’s presidential diaries. The district court, after examining the appellant’s proffer and comparing it with the interrogatory answers and the diary notes in camera, quashed the subpoena, ruling that North had failed to show that “Mr. Reagan’s appearance is necessary to assure [the] defendant a fair trial.” (J.A. 500).
B.
All criminal defendants have a constitutional right to call witnesses on their behalf who can offer evidence that is both material and favorable to their defense. See United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982). As the Supreme Court put it in Washington v. Texas,
The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.
*947388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967); see also Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973) (“Few rights are more fundamental than that of an accused to present witnesses in his own defense.”) (citations omitted). This right, like most, is not absolute. When a putative witness has a countervailing privilege allowing him to avoid testifying, a criminal defendant may indeed be deprived of calling a witness on his behalf. Most notably, we have held, as have most other circuits, that a defendant’s compulsory process rights do not automatically trump a witness’ Fifth Amendment right against self; incrimination. See, e.g., United States v. Thornton, 733 F.2d 121, 125 (D.C.Cir.1984). Absent a countervailing privilege, however, it is a violation of a defendant’s Sixth Amendment rights to quash a subpoena to a prospective witness, provided of course that the defendant shows that the witness would provide testimony that is material and favorable to his defense. See Valenzuela-Bernal, 458 U.S. at 867, 102 S.Ct. at 3446; see also Washington v. Texas, 388 U.S. at 23, 87 S.Ct. at 1925; United States v. Miller, 904 F.2d 65 (D.C.Cir.1990); United States v. Rubin, 836 F.2d 1096, 1101-02 (8th Cir.1988) (no Sixth Amendment violation in quashing subpoena where defendant failed to show evidence would be favorable); United States v. Verkuilen, 690 F.2d 648, 659 (7th Cir.1982).
North was convicted in Count 6 of aiding and abetting John Poindexter and William Casey who, in November 1986, are alleged to have “corruptly endeavored to obstruct,” 18 U.S.C. § 1505, the inquiries of three congressional committees — the Senate Select Committee on Intelligence, the House Permanent Select Committee on Intelligence, and the House Committee on Foreign Affairs — into the sale of arms to Iran and the provision of aid to the Contras. North’s part in that alleged obstruction involved helping to prepare a chronology — to be used by Casey and/or Poindexter when they testified before the committees on November 21, 1986 — which concealed the United States’ role in the shipment of arms to Iran in November 1985. As part of this charge, the indictment also alleges that North destroyed, altered, concealed and removed National Security Council (“NSC”) records, documents and papers concerning both the arms sales to Iran and U.S. efforts to aid the Contras. North was convicted in Count 9 of violating 18 U.S.C. § 2071(b) by destroying, removing, and altering the same documents referred to in Count 6. As I have emphasized above, see supra at 945, in order for the jury to convict North under section 2071(b), the IC had to prove that North acted with knowledge that his conduct was unlawful. And as North points out, we must assume for the purposes of this appeal that his conviction on Count 6 could rest on either the chronology preparation or the document destruction. Similarly, his convictions on both counts could have stemmed from North’s efforts to conceal either U.S. involvement in the Iran arms shipment or Reagan Administration support for the Contras.
According to North, Mr. Reagan’s testimony would establish that, as President, he encouraged, approved, authorized, condoned, and at times directed various members of the executive branch to withhold from members of Congress information concerning the sale of arms to Iran as well as information about aid provided to the Contras during the period of the Boland Amendments. In particular, North asserts that testimony from Mr. Reagan would permit him to show that the President authorized his subordinates to withhold information about efforts to support the Contras in their correspondence and meetings with Congress in September and October 1985 and July and August 1986. As for the Iran initiative, North claims that he could elicit from Mr. Reagan testimony showing that Mr. Reagan had advance knowledge of both the September 1985 TOW missile shipment and the November 1985 HAWK missile shipment to Iran and that Mr. Reagan directed that these and other aspects of the Iran initiative were not to be disclosed. Finally, North represented that Mr. Reagan approved and personally participated in efforts to conceal the Iran initiative from Congress between November 7 and Novem*948ber 25, 1986, the very period in which North committed the actions underlying Counts 6 and 9.19
Testimony to that effect would seem to be relevant to both Count 6 and Count 9. As to Count 9, North testified at trial that he believed he was carrying out McFar-lane’s, Casey’s, and Poindexter’s instructions when he destroyed the NSC documents concerning both the arms sales to Iran and aid to the Contras. He also testified that he believed — and that Casey and Poindexter led him to believe — that concealing those initiatives comported with the President’s express wishes.20 Mr. Reagan’s testimony, even if it could not aid North’s claim that he was acting lawfully in fact, could certainly bear on the question whether North thought he was acting lawfully. And on Count 9 that was the crucial question because North could not be convicted unless the jury found that he knew he was acting unlawfully. When the behavior at issue is destroying NSC documents in apparent violation of an NSC regulation, it seems obvious that one’s belief that the President has instructed others, including the National Security Advis- or, that he wants the information contained in the documents concealed might well lead someone to think that destroying those documents was not unlawful, notwithstanding the regulation.21 And, there is simply no warrant for the Majority’s conclusion that Reagan’s testimony has no probative value unless it can be shown that he explicitly directed North to destroy the documents.22 Particularly since only an internal NSC rule barred destruction, if Mr. Reagan implicitly or indirectly indicated his desires, that would certainly bear on North’s view as to whether or not he was authorized by law to destroy the documents.23
I can think of no more powerful corroboration for North’s claim that he believed McFarlane’s, Casey’s and Poindexter’s efforts to conceal the Iran and Contra initiatives were authorized by the President than testimony from Mr. Reagan himself that he had indeed authorized them, either explicitly or implicitly. Corroboration of the defendant’s testimony is normally important to the defense. See, e.g., United States v. Detrich, 865 F.2d 17, 22 (2d Cir.1988) (reversing conviction where corroborative evidence bearing on defendant’s mens rea was erroneously excluded). In this ease it was especially so. The instructions and actions of North’s superiors — as well as their accounts to him of their direct meetings with the President — were critical to his main defense that he did not believe he was acting unlawfully when he destroyed the relevant documents. But on this issue, North was forced to rely at trial on his own testimony alone. Of his superiors, only McFarlane testified at trial, and he testified *949against North pursuant to a plea agreement with the government. North was not permitted to call Mr. Reagan, Casey was deceased, and Poindexter was unavailable because of his Fifth Amendment privilege. Under those circumstances, it is hard to overemphasize the importance that corroborative testimony from Mr. Reagan may have had on the knowledge of unlawfulness question.
I also think that testimony was relevant to Count 6. In the first place, as I argue above, North’s knowledge of the unlawfulness of his actions in destroying the documents at issue in Count 9 is also relevant to the question of whether North acted “corruptly” as that word is used in 18 U.S.C. § 1505. See supra at 944-45. Therefore, everything I said above about the relevance of Mr. Reagan’s testimony to Count 9 makes it relevant to Count 6 as well. Moreover, North was acquitted as a principal on Count 6 and was convicted only of aiding and abetting Poindexter’s and/or Casey’s obstruction of congressional inquiries. In its brief, the IC claims that any testimony from Mr. Reagan would be irrelevant to North’s authorization defense because, as the District Court noted, there is no indication that North ever received any direct instructions from Mr. Reagan. The IC’s brief, however, does not directly dispute North’s claim that Mr. Reagan’s testimony would have been relevant insofar as it described his instructions to Poindex-ter and Casey. At oral argument, the IC did argue that evidence of Mr. Reagan’s instructions to Poindexter and Casey would be irrelevant to North’s defense since that testimony would bear only on a possible authorization defense available to Poindex-ter and/or Casey, not on North’s intent. In order to convict North as an aider and abettor on Count 6, however, the jury had to find that he possessed the same level of intent that he would have needed to be convicted as a principal. (See J.A. 679). Although we hold above that presidential authorization is not itself a defense to any of the charges against North, it seems rather obvious that if North thought that McFarlane, Casey, and Poindexter were all acting properly (even lawfully), the jury would be entitled to reject the claim that North alone acted “corruptly.” The Majority’s discussion on this point, however, makes rather clear that my colleagues believe North could be found guilty on Count 6 if the jury merely thought he acted with the intent to impede an inquiry, for there could be no other justification for calling Mr. Reagan’s testimony irrelevant. As I explained above, that view is at odds with the plain language of the statute.24
The IC asserts that the record provides no basis for North’s claim that Reagan would have testified consistently with North’s predictions — especially that Mr. Reagan would say that he had instructed Casey and Poindexter to obstruct congressional inquiries. Even if the IC’s characterization of the record were accurate, I would not be persuaded since the record also provides us with no reason to doubt that Mr. Reagan would have testified consistently with North’s proffer. And since North was denied access to Mr. Reagan as well as to his diary notes and interrogatory answers, I think it was unfair to hold him to a rigorous standard in supporting his proffer.25 To be sure, the District Judge examined Mr. Reagan’s interrogatory answers (and accompanying documents) and the notes made from his diaries while considering North’s subpoena to Mr. Reagan and observed that “[njothing there even remotely supports an authorization claim.” (J.A. 504). But the District Judge failed to consider the impact of the aiding and abetting charge and the corroborative force of Mr. Reagan’s testimony to North’s defense to that charge. Instead, the District Judge undertook a “limited and precise inquiry as to whether or not Mr. Reagan while Presi*950dent, directly or indirectly, authorized Lt. Col. North to take any of the actions” underlying the indictment. (J.A. 503). Under that cramped standard for determining what testimony from Mr. Reagan would be relevant, it is hardly surprising that the District Judge found nothing in the interrogatory answers and diary notes to suggest that Mr. Reagan’s testimony would be valuable to North.26
I conclude, therefore, that North made an adequate proffer to carry his burden of showing that Mr. Reagan’s testimony would have been material and favorable to North’s defense with regard to his conviction on Counts 6 and 9.
C.
A defendant’s right to call witnesses material and favorable to his defense must on occasion yield to a prospective witness’ privilege to refrain from testifying. I turn, therefore, to the question whether Mr. Reagan, by virtue of his prior position as President of the United States, enjoyed a testimonial privilege sufficient to warrant the quashing of North’s subpoena.
There no doubt exists an executive privilege, qualified by the legitimate needs of the judicial process, protecting the confidentiality of a President’s communications in the performance of his responsibilities. See Nixon v. Administrator, 433 U.S. 425, 451-55, 97 S.Ct. 2777, 2794-96, 53 L.Ed.2d 867 (1977); United States v. Nixon, 418 U.S. 683, 707-13, 94 S.Ct. 3090, 3107-10, 41 L.Ed.2d 1039 (1974). That privilege is grounded in the public interest in the full and frank exchange between the President and his advisers that would be discouraged if left unprotected. See Nixon, 418 U.S. at 708, 94 S.Ct. at 3107-08. To the extent that continuing confidentiality serves these interests, moreover, the privilege survives the President’s tenure. See Nixon v. Administrator, 433 U.S. at 448-49, 97 S.Ct. at 2792-93.
Mr. Reagan, however, never asserted executive privilege in this case. He did, of course, move to quash the subpoena but he did not formally assert the privilege. Nevertheless, the District Judge apparently drew from United States v. Nixon the notion that since a President’s private communications with his executive branch subordinates are presumptively privileged, it is unnecessary for the President even to assert the privilege when called to testify in a criminal trial in order to enjoy its benefits. That conclusion does not at all follow from United States v. Nixon because in that case the President did formally assert the privilege. I read the Supreme Court to have concluded in Nixon only that in the event a President or ex-President asserts executive privilege, the validity of the privilege is presumed; that is to say the communications over which the President asserts the privilege are presumed to implicate the interests that give rise to the privilege. As the Nixon Court said,
We have earlier determined that the District Court did not err in authorizing the issuance of the subpoena. If a President concludes that compliance with a subpoena would be injurious to the public interest he may properly, as was done here, invoke a claim of privilege on the return of the subpoena. Upon receiving a claim of privilege from the Chief Executive, it became the further duty of the District Court to treat the subpoenaed material as presumptively privileged and to require the Special Prosecutor to demonstrate that the Presidential material was “essential to the justice of the [pending criminal] case.” United States v. Burr, 25 F.Cas. [187, 192 (C.C.Va.1807) (No. 14,694) ].
*951418 U.S. at 713, 94 S.Ct. at 3110. And whenever presumptive executive privilege has been discussed in cases following Nixon, the President or ex-President has already asserted the privilege. See Nixon v. Administrator, 433 U.S. at 447-48, 97 S.Ct. at 2792-93; Dellums v. Powell, 642 F.2d 1351 (D.C.Cir.1980); Dellums v. Powell, 561 F.2d 242, 246 (D.C.Cir.1977); see also Nixon v. Sirica, 487 F.2d 700, 713, 716-17 (D.C.Cir.1973) (Presidential communications held presumptively privileged in case prior to United States v. Nixon where President interposed formal claim of privi-’ lege in response to grand jury subpoena); but cf. United States v. Ehrlichman, 546 F.2d 910, 931 (D.C.Cir.1976), cert. denied, 429 U.S. 1120, 97 S.Ct. 1155, 51 L.Ed.2d 570 (1977) (presumptive executive privilege mentioned although it is unclear whether it had been formally asserted). I therefore think that the so-called “presumptive privilege” for presidential communications has no independent legal significance unless the privilege is formally asserted.
That does not mean that any time a President or ex-President is called to testify in a criminal or civil case he must assert executive privilege to avoid testifying. If the testimony he is expected to give is not shown to be relevant and the subpoena to a President is nothing more than a harassing device, a District Judge may quite properly quash the subpoena based on irrelevance.27 As I have argued, that is not this case. And it would be quite anomalous indeed for a witness called to give relevant evidence in a criminal trial to be permitted to avoid testifying merely because of his status. That is simply not the way our system works. Anyone who enjoys a privilege against testifying must assert it, whether the privilege be lawyer-client, priest-confessor, or husband-wife.
Even assuming arguendo that Mr. Reagan’s motion to quash could be thought implicitly to raise executive privilege, or that executive privilege need not be asserted to be enjoyed, I do not believe the District Court was justified in quashing the subpoena. The District Court thought that, in the face of executive privilege, “[ujnder the principles established by United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), and prior precedents, the Court is required to determine whether or not defendant has established that Mr. Reagan’s appearance is necessary to assure defendant a fair- trial.” (J.A. 500). The district court quashed the subpoena because North had failed to “demonstrate with requisite specificity in concrete terms what further information only President Reagan could supply that would be material and essential to the defense.” (J.A. 501). In other words, the District Court read United States v. Nixon. as constructing a very high barrier to a criminal defendant who wishes to call a President or ex-President who, it is asserted, will give evidence relevant to the defense. I think that is a dubious reading of the Supreme Court’s opinion.
In Nixon, the Watergate Special Prosecutor sought to subpoena tapes from President Nixon that he had reason to believe contained relevant conversations between the President and various targets of the investigation. The district court in Nixon issued the subpoena, and, rather than comply voluntarily, President Nixon moved to quash it on several grounds, including a formal claim of executive privilege. The district court rejected his claim of privilege, and the Supreme Court agreed to hear the appeal directly. After concluding that the Court had jurisdiction and that the case was justiciable, the Court determined whether the Special Prosecutor satisfied the requirements for the issuance of a pretrial subpoena duces tecum under Rule 17(c) of the Federal Rules of Criminal Procedure. That portion of the Court’s analysis did not place any special significance on the fact that the subpoena was served on the President. The Court said only that “[ajppellate review, in deference to a coordinate branch of Government, should be particularly meticulous to ensure that the standards of Rule 17(c) have been correctly applied.” 418 U.S. at 702, 94 S.Ct. at 3104. *952The Court affirmed the district court’s conclusion that the Special Prosecutor had met his burden, which the Court described as consisting of three components: relevancy, admissibility, and specificity. See id. at 700, 94 S.Ct. at 3103. In light of my discussion above about the relevance and materiality of Mr. Reagan’s possible testimony, I think it instructive to note how easily the Court was satisfied that the tapes sought by the Special Prosecutor in Nixon were relevant. The Court first observed that “[o]f 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.” Id. As to some of the desired tapes, it was sufficient that “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.” Id.
After the Court was satisfied that the Special Prosecutor had met his burden of showing relevancy, admissibility, and specificity under Rule 17(c) the Court turned to the question whether the subpoena nevertheless had to be quashed because President Nixon had asserted executive privilege. Having determined that the President does not enjoy an absolute privilege of confidentiality in his communications but that “the legitimate needs of the judicial process may outweigh Presidential privilege,” id. at 707, 94 S.Ct. at 3107, the Nixon Court held that, at least where the President has asserted no more than a generalized interest in confidentiality, that. “generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial[,]” id. at 713, 94 S.Ct. at 3110.28
But it is not apparent that Nixon requires any special showing even after executive privilege is claimed. To be sure, the Court used the language “essential to the justice of the pending criminal case” and “demonstrated specific need for evidence” in describing what was needed to overcome the President’s qualified privilege. But the Court does not appear to have meant anything more than the showing that satisfied Rule 17(c).29 Nowhere in the opinion does the Court ever describe any offer by the Special Prosecutor other than the rather perfunctory showing of relevance I described above. See supra at 952. Even in the section of the opinion dealing with executive privilege, the Court stated that, “[t]he President’s broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases.” Id. at 713, 94 S.Ct. at 3110 (emphasis added); see also id. at 712 n. 19, 94 S.Ct. at 3109 n. 19 (“We address only the conflict between the President’s assertion of a generalized privilege of confidentiality and the constitutional need for relevant evidence in criminal trials.”) (emphasis added); id. at 712-13, 94 S.Ct. at 3110 (“A President’s acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production' of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case_”) (emphasis added).30 These *953passages suggest that the Nixon Court equated “demonstrated specific need” or “essential to the justice of the pending criminal case” with a showing of relevancy, specificity, and admissibility.31
It is not necessary in this case, however, to decide whether the Nixon Court envisioned a showing more substantial than is necessary to satisfy Rule 17(c) to overcome executive privilege. For here the need for disclosure is far more compelling and the executive interest in confidentiality far less substantial compared to the situation faced by the Court in Nixon — where the balance was nevertheless struck in favor of disclosure.
Nixon presented the issue whether the prosecution (representing the public interest) could pierce the President’s privilege. Here, instead, we are faced with a defendant in a criminal case who wishes to gain testimony from the President that he has adequately shown to be relevant. The defendant — but not the prosecutor — may rely on the Sixth Amendment. Cf. Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973). It follows, therefore, that to permit a trial and conviction of a defendant while rebuffing his effort to put on evidence relevant to his defense, strains at the utmost our system of justice. Thus, whatever weight the Supreme Court gave to the Special Prosecutor’s need for disclosure in Nixon, as a defendant, North’s claim seems on its face to be stronger.
As for the executive interest in confidentiality, it should be recalled that Nixon involved a subpoena to a sitting President rather than a former President. While Mr. Reagan may still invoke executive privilege after leaving office, see Nixon v. Administrator, 433 U.S. at 448-49, 97 S.Ct. at 2792-93, that privilege is less robust than that of an incumbent President, see id. (noting that Mr. Nixon’s claim of privilege was necessarily weakened by the failure of the incumbent — who was “in the best position to assess the present and future needs of the Executive Branch” — to support it); id. at 451, 97 S.Ct. at 2794 (“The expectation of the confidentiality of executive communications thus has always been limited and subject to erosion over time after an administration leaves office.”); see also Public Citizen v. Burke, 843 F.2d 1473, 1479 (D.C.Cir.1988).32
But most important to my conclusion that the District Court must be reversed without resolving any ambiguity in United States v. Nixon as to the required showing *954to surmount executive privilege is my view that Mr. Reagan could not successfully assert a privilege to avoid testifying, because virtually no presidential interest in confidentiality remains as to the matters on which his testimony is sought. Appellant asserts that Mr. Reagan has actually “waived” the privilege. I am not certain that “waiver” is the right word, or, more precisely, whether a waiver of executive privilege is to be analyzed as we do a waiver of other kinds of privileges.33 But I agree with appellant that there remains little or no interest in presidential confidentiality to be protected. After all, Mr. Reagan’s Chief of Staff, two of his former Cabinet members, and two of his former National Security Advisors have testified on national television about their private conversations with Mr. Reagan and his personal role in most, if not all, of the matters about which North seeks Mr. Reagan’s testimony. In addition, former Attorney General Meese and former National Security Advisor McFarlane testified for the IC about the conversations with Mr. Reagan on those matters. These factors “substantially diminish[ ] the interest in maintaining the confidentiality” of Mr. Reagan’s communications on the relevant subjects. Nixon v. Sirica, 487 F.2d 700 at 718. What is more, Mr. Reagan himself discussed with the Tower Commission his communications with subordinates and has even given sworn testimony, in the form of answers to the IC’s interrogatories, on these matters. I completely fail to see how an ex-President can give answers to a prosecutor who is independent of any presidential supervision, and yet assert executive privilege over the same or similar material when sought by a defendant.34
Presidents, even ex-Presidents, may not be called to testify capriciously or needlessly. But this is not such a case. North worked in the White House, only one step removed from the President himself, with what appears to have been enormous responsibility. He has been convicted of violating criminal statutes (never before employed as here) and his defense is that he was lawfully doing the President’s bidding, and doing so with regard to a substantive area of national security policy, which, whatever one’s view of those policies, would have been thought at the core of the Chief Executive’s constitutional responsibility. His immediate superior, Admiral Poin-dexter, was unavailable as a defense witness. Under these circumstances, for the trial judge to have refused to compel Reagan’s testimony, was to deprive North of a fair trial.
V. Pending Inquiry
I also dissent from the Majority’s holding that it was, or could be, harmless error for the District Judge to direct a verdict against North on an essential element of Count 6.
North’s conviction on Count 6 for aiding and abetting the obstruction of a congressional inquiry required the Government to prove, as an essential element of that offense, that an “inquiry or investigation is being had by either House, or any committee of either House or any joint Committee of the Congress ...” 18 U.S.C. § 1505. North contends that his fifth amendment right to due process and his sixth amendment right to a jury verdict were violated when the district judge instructed the jury, over North’s explicit objection, (J.A. 1830) that “as a matter of law, ... congressional inquiries were pending” and that the jury “need only deliberate regarding the other three elements [of the crime].” (J.A. 635). I agree.
*955It was apparently undisputed that the existence of a pending inquiry or investigation was both a necessary element of the offense and a factual question for the jury to decide. In their suggested jury instructions, both North and the IC requested the issue to be submitted to the jury. (J.A. 2468-70, 2484). And even on appeal the IC does not argue that the determination of whether there was a pending inquiry is properly made by the judge rather than the jury; rather, the IC claims that other sections of the judge’s instructions implicitly submitted the issue to the jury. According to the IC, the judge’s instruction that the jury must find that “the defendant knew of the pending inquiry or investigation,” preserved for the jury the question of whether there was in fact a pending investigation. Merely telling the jury to decide whether North knew of “the pending inquiry or investigation” implies, however, that there was a pending inquiry to know about. And in the face of the judge’s outright charge that, as a matter of law, congressional inquiries were pending, the IC’s argument is simply implausible. The judge prevented the jury from considering a critical element of the charge, and thus effectively directed a verdict against North on the question of whether there were' inquiries pending. That is obviously error, as the Majority concedes. Since I am of the view that North’s conviction on this Count should be reversed because the jury was improperly instructed on the issue of authorization, because he was denied the testimony of former President Reagan, and because his due process rights were violated by the failure of the District Court to require reciprocal discovery under CIPA, I do not think we need to go beyond identifying the error. But since my colleagues hold otherwise on all of those issues, I go on to the question of whether harm to appellant must be measured, and, if so, how.
I believe that under relevant Supreme Court decisions reversal is automatically required when the judge, as here, directs a verdict on an essential element of a crime, no matter how overwhelming — or even uncontested — the evidence is on that issue. Indeed, the IC neither argues that a harmless error test could be applied here, nor that this error was harmless in any event. Nevertheless, the Majority reaches both conclusions, in my view misreading the Supreme Court’s instructions on this issue and directly contradicting the holdings of three of our sister circuits that have faced this very same issue.
The Court indicated its views on this question most directly in Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). In Rose, the Court reviewed a conviction in which a district court instructed a jury in a murder trial, where malice was a necessary element of the murders charged, that “homicides are presumed to be malicious in the absence of evidence which would rebut the implied presumption.” Id. at 574, 106 S.Ct. at 3104. The instruction was undeniably erroneous since it placed the burden of disproving malicious intent on the defendant, see Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), but the Court held that harmless error analysis should have been applied. See Rose, 478 U.S. at 579-580, 106 S.Ct. at 3106-07. The Court, however, reiterated. that “some constitutional errors require reversal without regard to the evidence in the particular case” because “some errors necessarily render a trial fundamentally unfair.” Id. at 577, 106 S.Ct. at 3106 (citing Chapman v. California, 386 U.S. 18, 23 n. 8, 87 S.Ct. 824, 827 n. 8, 17 L.Ed.2d 705 (1967)). One of those instances the Court expressly identified in Rose was “directing] a verdict for the prosecution in a criminal trial by jury.” Id. 478 U.S. at 578, 106 S.Ct. at 3106. The Court explained that “ ‘a trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict ... regardless of how overwhelmingly the evidence may point in that direction.’ ” Id. (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 97 S.Ct. 1349, 1355-56, 51 L.Ed.2d 642 (1977) (citing United Brotherhood of Carpenters v. United States, 330 U.S. 395, 408, 67 S.Ct. 775, 782, 91 L.Ed. 973 (1947))). “[T]he error in such a case is that the wrong entity judged the defendant guilty,” *956id. (emphasis added), and therefore the “basic trial process” is “aborted,” id. n. 6.
It is not possible to read Rose as only concerned with a judge who actually instructs a jury that a defendant is guilty— as opposed to a more limited instruction that the Government succeeded in proving one of the elements necessary to a conviction. The Court’s further discussion rebuts that restrictive reading. Explaining that a so-called Sandstrom error — the improper shifting of the burden of proving intent — is not equivalent to a directed verdict for the state, the Court noted that, “ ‘[bjecause a presumption does not remove the issue of intent from the jury’s consideration, it is distinguishable from other instructional errors that prevent a jury from considering an issue.’ ” Id. 478 U.S. at 580 n. 8, 106 S.Ct. at 3107 n. 8 (emphasis added) (quoting Connecticut v. Johnson, 460 U.S. 73, 95 n. 3, 103 S.Ct. 969, 982 n. 3, 74 L.Ed.2d 823 (1983) (Powell, J., dissenting)). Thus,' the Court applied the harmless error analysis in Rose since, “the jury ... found ... every fact necessary to establish every element of the offense beyond a reasonable doubt.” Id. 478 U.S. at 581, 106 S.Ct. at 3107 (internal quotes omitted). That is not true here, where the trial court instructed the jury that one element of the offense has been established as a matter of law.
My reading of Rose is buttressed by the views expressed by several of the Justices in Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983) — decided prior to Rose. In Johnson, the Court reviewed a conviction in which the trial judge had instructed the jury that “a person’s intention may be inferred from his conduct and every person is conclusively presumed to intend the natural and necessary consequences of his act.” Id. at 78, 103 S.Ct. at 973. Justices Brennan, White, and Marshall joined an opinion by Justice Blackmun to the effect that such “conclusive presumption” instructions about intent — undeniably error under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) — could never be harmless error, no matter how overwhelming the evidence of guilt or of intent. See id. 460 U.S. at 84-86, 103 S.Ct. at 976-77 (plurality opinion). Justice Stevens concurred in the judgment, but expressed no opinion on the issue. See id. at 89-90, 103 S.Ct. at 978-79 (Stevens, J., concurring in the judgment). Justice Powell, joined by Chief Justice Burger and Justices Rehnquist and O’Con-nor, dissented primarily because he disagreed with the argument that a conclusive presumption instruction on the issue of intent is equivalent to a directed verdict on the issue. See id. at 95, 103 S.Ct. at 982 (Powell, J., dissenting). The inescapable implication of the dissent is that even those Justices would think harmless error analysis inapplicable to an instruction that did direct a verdict in favor of the prosecution on any necessary element of a criminal charge. The instruction given in the instant case is even more intrusive into the jury’s fact-finding province, and would therefore appear to be a fortiori to Johnson. My colleagues are apparently unboth-ered by the views expressed by those eight Justices, six of whom are still members of the Court, since they hold that it can be harmless error to direct a verdict on an essential element of the crime without so much as citing Johnson.
The Majority instead places primary, and I think mistaken, reliance on Carella v. California, — U.S.-, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989), where the Court reversed appellant’s conviction for car theft arising from his failure to return a rented car. The Court unanimously held that the jury instructions there — imposing a presumption that rented property that is not returned to its owner within five days after the rental agreement expires shall be presumed embezzled by the renter — were erroneous. The Majority claims that Carella should guide us here because the Court “remanded for a harmless error inquiry even though the jury instructions at issue ‘relieved the State of its burden of ... proving by evidence every essential element of Carella’s crime beyond a reasonable doubt.’ ” Maj. • Op. at 893 (quoting Carella, 109 S.Ct. at 2420). But the Majority simply ignores the distinction between the error of shifting the burden of proof at issue in Carella and the blatant directed *957verdict at issue here. As to the former, Carella merely reaffirmed the Court’s preexisting position that harmless error can be applied. See Rose, 478 U.S. 570, 106 S.Ct. 3101. As to the latter, both Rose and Connecticut v. Johnson suggest the opposite result. And it is only by ignoring that crucial distinction that my colleagues could believe that Justice Scalia’s concurrence in Carella supports their outcome. See Maj. Op. at 893. Justice Scalia, joined by Justices Brennan, Marshall, and Blackmun, concurred separately to stress how limited the harmless error analysis should be even in the case of mandatory presumptions in jury instructions. See id. 109 S.Ct. at 2421 (Scalia, J., concurring in the judgment). In such cases, error would be harmless only when the instruction “did not play any role” in the jury’s verdict— such as when the defendant is acquitted on the relevant Count or when the defendant admits the element, id. at 2423 (emphasis added) (citing Johnson, 460 U.S. at 87, 103 S.Ct. at 977 (plurality opinion)) — or when the “facts necessarily found by the jury are so closely related to the ultimate fact to be presumed that no rational jury could find those facts without also finding that ultimate fact.” Id. Given those concurring Justices’ view that harmless error inquiry is only rarely permissible even when the burden of proof is merely shifted by presumption, there can be no doubt that it is inappropriate for us to apply harmless error analysis if — as in this case — there was an overt directed verdict on an essential element of the charge.
In any event, the Majority is incorrect when it asserts that “no rational jury could find that North knew of the pending congressional investigation, endeavored to obstruct it, and did so with specific corrupt intent without concomitantly finding that the investigation was pending in the first place.” Maj. Op. at 894. In Carella, the Supreme Court indicated that it would be permissible to apply harmless error analysis when the jury conclusively — that is, as a matter of logic — found the presumed fact in making its other determinations. Thus, if it is rationally impossible for the jury to find that the defendant committed all the elements of a criminal act without also finding that he intended to cause injury, that might be harmless. See Carella, 109 S.Ct. at 2421. The problem in this case is structurally different from the one discussed in Carella. Here, the jury was asked whether North knew of a pending inquiry but only after it was told that there was such an inquiry pending. If the jury believed that North wanted to keep information away from a congressional committee, but was not convinced beyond a reasonable doubt that the inquiry was pending at the time North acted, then the directed verdict would deny North an acquittal.35 Whether or not that hypothesis is probable (I don’t see how we could tell), the point here is simply that a rational juror could have been led to a different outcome by the directed verdict and therefore, even under the Majority’s misreading of Carella, harmless error analysis is not applicable here.
The Majority also ignores three of our sister circuits that have ruled to the contrary, refusing to apply harmless error analysis when trial judges direct a verdict in favor of the government on any essential element of a crime, even when the fact is undisputed. The Sixth Circuit, in United States v. Mentz, 840 F.2d 315, 323-24 (6th Cir.1988), was faced with this exact issue when, in a federal bank robbery prosecution, the District Judge instructed a jury that a financial institution’s deposits were insured by the FDIC at the time of the alleged robbery, which is a necessary element under the federal bank robbery statute. The Mentz court, believing that Rose was dispositive of the issue for many of the same reasons as I outlined in my discussion of that case, held that harmless error principles could not be applied even though there was unrebutted evidence of FDIC insurance in the record.
Similarly, the Eighth Circuit, in a case predating Rose, reviewed a federal arson conviction under 18 U.S.C. § 844(i), which *958requires that the destroyed property be “used in interstate commerce or any activity affecting interstate or foreign commerce .... ” The trial judge instructed the jury that if the building’s owners bought insurance from a company doing business outside of Missouri, the building (located in Missouri) was, as a matter of law, used in an activity affecting interstate commerce. The court of appeals observed that there was evidence in the record clearly sufficient to satisfy the de minimis interstate commerce element, but nevertheless reversed the conviction “reluctantly.” United States v. Voss, 787 F.2d 393, 397 (8th Cir.), cert. denied, 479 U.S. 888, 107 S.Ct. 286, 93 L.Ed.2d 261 (1986). In language directly applicable to North’s contention, the court of appeals stated:
[I]t is not for us to find the facts.... If the sixth amendment right to have a jury decide guilt and innocence means anything, it means that the facts essential to conviction must be proven beyond the jury’s reasonable doubt, not beyond ours. A jury verdict, if based on an instruction that allows it to convict without properly finding the facts supporting each element of the crime, is error. Such error is not corrected merely because an appellate court, upon review, is satisfied that the jury would have found the essential facts had it been properly instructed. The error cannot be treated as harmless.
Id. at 398 (citations omitted). (The Eighth Circuit reaffirmed its position in United States v. White Horse, 807 F.2d 1426, 1429 (8th Cir.1986), decided after Rose.) See also United States v. Goetz, 746 F.2d 705, 709 (11th Cir.1984) (“We conclude that a trial court’s actions in directing a verdict in a criminal trial, either in whole or in part, cannot be viewed as harmless error.”) (emphasis added). The Majority’s only attempt to distinguish these rulings by our sister circüits is to claim that the fact found by the trial judge here was a “logical prerequisite for the jury's finding of the other elements of the crime.” Maj. Op. at 894 n. 28. As I explained above, however, the jury was never logically required to find that there was an inquiry pending here. Rather, they were told that whatever was going on in Congress was a “pending inquiry” and then asked whether North knew about it.
It seems to me, therefore, that the governing law is rather clear and the District Court’s error requires reversal without regard to the harm caused by the error because the defendant’s right to have a jury decide the elements of a crime is “ ‘so basic to a fair trial’ that it can never be harmless.” Rose, 478 U.S. at 580, 106 S.Ct. at 3107 (quoting Chapman, 386 U.S. at 23, 87 S.Ct. at 827); accord United States v. Goetz, 746 F.2d 705, 708 (11th Cir.1984).
Although I would, of course, not reach the issue, I also disagree with the Majority’s determination that this directed verdict was harmless (certainly, that it was harmless beyond a reasonable doubt). Count 6 of the indictment charged that North destroyed, altered, concealed, and removed NSC records, documents and papers concerning both the arms sales to Iran and U.S. efforts to aid the Contras. North’s conviction, therefore, could have rested solely on his efforts to obstruct a committee investigating the Contra aid issue, and we must assume for the purposes of this appeal that it did. See Cramer v. United States, 325 U.S. 1, 36 n. 45, 65 S.Ct. 918, 935 n. 45, 89 L.Ed. 1441 (1945). While it may have been, in the words of the IC, “utterly undisputed, and indeed incontrovertible” that there were inquiries pending in November of 1986 into the role of executive branch officials in the sale of arms to Iran, it was not nearly so obvious that inquiries were pending concerning aid to the Contras. The IC does not claim that there was' overwhelming or uncontroverted evidence in the record of ongoing inquiries into Contra aid at the time North committed the acts underlying Count 6; indeed, the IC does not even argue that such inquiries were pending at all. Only Judge Gesell was so certain. Unless the Majority is willing to sift through the record and find this disputed fact itself (beyond a reasonable doubt?), thereby effectively directing a verdict against North from the Court of Appeals, it must reverse North’s conviction on Count 6. I am truly *959baffled by the Majority’s claim that this issue is a “ ‘Johnny-come-lately’ for North himself made no mention of the subject of the investigation in his proposed jury instructions.” Maj. Op. at 894 n. 30. When North objected to this particular instruction his counsel said, “We object to the finding as a matter of law and particularly because we believe there’s no evidence that there was a Contra investigation underway in November 1986.” (Tr. 8499; J.A. 1830). He could hardly have been clearer.
The Majority’s discussion of the harm issue, see Maj. Op. at 893-894, ignores the question of whether there was a pending inquiry into the Contra initiative. Instead it focuses on its view of North’s motive in preparing the chronology and destroying documents as if evidence on other elements of the charge renders the legal error harmless. The Majority’s only answer to this problem is that “the question of whether North’s obstruction related to inquiries into one or both issues is one of ‘pertinency,’ not ‘pendency,’ and is therefore a question of law for the court rather than for the jury. See Sinclair v. United States, 279 U.S. 263, 298 [49 S.Ct. 268, 273, 73 L.Ed. 692] (1928).” Maj. Op. at 853 n. 1. It is surely quite extraordinary — and I think improper — for an appellate court to sidestep a powerful claim of error by relying on a ground not even argued by the prosecutor. We do not normally consider an argument raised for the first time in a criminal appellant’s reply brief, let alone an argument not raised by any party. See United States v. Eniola, 893 F.2d 383, 385 (D.C.Cir.1990); United States v. Haldeman, 559 F.2d 31 at 78 n. 113 (D.C.Cir.1976). “The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983). We occasionally have stretched for defendants, particularly when they are pro se — but surely the IC does not qualify as pro se.
The IC did not overlook a good argument, however; I think the Majority is quite wrong. Sinclair holds, under a quite different criminal statute, that when an individual is called before Congress and “refuses to answer any question pertinent to the question under inquiry ...,” the question of pertinency, like the- issue of relevancy, is a question of law because “it [does] not depend on the probative value of evidence.” 279 U.S. at 298, 49 S.Ct. at 273. As the IC recognized, however, whether or not a pending inquiry existed could be established by probative evidence; indeed the IC did produce evidence to establish the facts — although apparently not evidence that a pending inquiry existed into the issue of whether the Administration was improperly aiding the Contras.
Even assuming the Majority (rather than the IC) is correct and whether a pending inquiry into Contra assistance existed at the relevant time is a question of law rather than fact, the District Judge decided it wrongly. There is no evidence that I can find to support that proposition; the IC tellingly limits his “undisputed and incontrovertible” assertion to the pending inquiries about Iranian arm sales. And not even the IC has claimed that attempts to obscure Contra aid can be deemed “pertinent” to an inquiry into Iranian arms sales. * * * * * *
For the foregoing reasons, North’s conviction on Count 6 should be reversed and remanded to the district court for a new trial.
VI. Conclusion
There is a great temptation in a case such as this to focus on the institutional interests at stake, the Presidency, the Congress, even the District Judge, faced, as he was, with a daunting task. But I think that is the wrong angle from which to view the appellant’s arguments. The district judge was not on trial nor was the Congress or the President; North was.
The Chief Judge believes that although the District Judge made “a few” errors, they were all harmless. Of course we see only the issues appealed, but it seems to me there were quite a few errors among *960them and they were serious indeed — some even constitutional in nature. He refused to hold a constitutionally required “Kasti-gar” hearing. He refused to grant (or even rule on) appellant’s motion to compel the IC’s compliance with CIPA’s reciprocity provision (which is both statutory and constitutional); he erroneously charged the jury on the most crucial issue in the case— at least as to Count 9 and, in my view, on Count 6 as well. He directed the verdict against North on an essential element of Count 6 — whether a pending inquiry existed. He refused to instruct the jury that they had to agree unanimously as to the relevant acts committed by the defendant. He failed to correct the IC’s improper closing argument on the security fence Count (which I only barely conclude is harmless error). And he permitted the ex-President to avoid testifying in a case in which fairness cried out for his presence.36
. The standard for reversal when the complained of error is a violation of the federal Constitution is whether "the court [is] able to declare a belief that it was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).
. While I view this factor — the severity of the misconduct — quite differently than does the Majority, I confess that I am not sure whether severity itself should necessarily militate toward reversal. After all, severity in the sense of intentionally bad behavior does not inexorably correlate with prejudice to the defendant. The Second Circuit, in United States v. Modica, 663 F.2d at 1182-86, thoughtfully discussed the possibility of sanctions besides reversal for prose-cutorial misconduct. Of course, one of the premises of that analysis is that prosecutors employed by United States Attorneys work in something of an ongoing relationship with federal judges so that a message sent by one disciplinary action would act as a deterrent to other prosecutors, see id. at 1184-85. Whatever the merit of the Second Circuit’s views, they are obviously inapplicable here due to the nature of the prosecutorial unit.
. I therefore wonder how the IC can now argue in its brief that the issue of the amount of profits was a “marginal" one. (IC Br. at 58 n. 110).
. Of course, the jury could also have concluded that North developed doubt as to the legality of his actions long after he accepted the fence.
.As the Majority correctly notes, no such determination was made in this case. See Maj. Op. at 901. I doubt whether it could be done constitutionally.
. The Majority is off the mark when it asserts that "discovery proceedings under CIPA ... entail the kind of strong state interest that may justify an exchange of information between the prosecution and the defense that is not entirely reciprocal.” Maj. Op. at 902 n. 41. The overall importance of CIPA is irrelevant. The Majority surely cannot claim that there is any state interest, let alone a strong one, in the government’s refusal to turn over the evidence it uses to refute a defendant’s compelled disclosure.
There is also no basis whatsoever for the Majority’s claim that CIPA allows defendants to "greymail’’ the government out of pursuing legitimate prosecutions. If the defendant cannot make use of classified but exculpatory evidence at a public trial, then the prosecution is not legitimate.
. There is no warrant for the Majority’s treatment of all the discovery issues that involved the CIPA statute as one undifferentiated unit. See Maj. Op. at 903 ("In sum, the District Court’s implementation of CIPA ultimately required each side to reveal substantial aspects of its arguments to its opponents.’’).
. The IC does state, somewhat implausibly, that "it would [not] be prejudicial if the Government had altered its proof in response to North's notice." See IC BR. at 52 n. 100. Not surprisingly, the IC has no support for, and does not attempt to develop, that assertion.
. Even though he was actually convicted only of aiding and abetting others in their violation of section 1505, aiders and abettors must possess the same criminal intent as the principals. Section 1505 thus provides the appropriate threshold for North’s criminal intent on Count 6. See United States v. Sampol, 636 F.2d 621, 676 (D.C.Cir.1980).
. Section 1503 makes it a crime to "corruptly, or by threats or force, or by any threatening letter or communication, endeavor[ ] to influence, intimidate, or impede [a judicial proceeding].”
. Section 7212(a) makes it a crime to "corruptly or by force or threats of force (including any threatening letter or communication) ... endeavor) ] to obstruct or impede the due administration of [the tax laws].”
. In Liparota, the Court held that conviction of food stamp fraud under 7 U.S.C. § 2024(b)(1) — which makes it a crime to “knowingly ... transferí ], acquire[ ], ... or possess[ ] coupons ... in any manner not authorized by [the statute] or regulations" — requires a showing that the defendant knew his actions were unlawful, because any other construction would render criminal a variety of actions undertaken with no evil or improper intent. The Court declined to reach such a result without clear indication that Congress so intended.
. It is not clear whether the Majority, in fact, does.
. I am unsure whether to place United States v. Mitchell, 877 F.2d 294 (4th Cir.1989) in this same category. In that 1505 case, the defendants had taken $50,000 in return for using their influence with their uncle, a congressman, to squelch a congressional investigation of the Wedtech corporation. Rejecting the argument that appellants’ behavior was not covered by section 1505 because they did not use any means of influence that were in themselves illegal, such as bribing the congressman, the court stated that "the proper inquiry is whether a defendant had the requisite corrupt intent to improperly influence the investigation." Id. at 299; see also id. ("any endeavor, including the promised exploitation of a special relationship with the chair of the investigating committee, when done with the requisite intent to corruptly influence a congressional investigation, violates § 1505.”). (emphasis added). The presence of the adverbs “improperly” and "corruptly” before the word “influence” in those quoted passages suggests that the Mitchell court did not fully embrace the view of the cases cited in the text.
. The Majority argues that these cases do not read the word "corruptly” out of the statute, stating that “these cases have recognized that ‘constitutionally unprotected and purportedly illicit' conduct — behavior that is ‘not ... inadvertent, negligent, or even reckless[ly] non-purposeful’ — reflects a ‘corrupt endeavor to interfere with the due administration of justice.”’ Maj. Op. at 882 (quoting United States v. Jeter, 775 F.2d 670, 679 (6th Cir.1985), cert. denied, 475 U.S. 1142, 106 S.Ct. 1796, 90 L.Ed.2d 341 (1986)). That is a correct quote from Jeter, but I have not the vaguest idea what it means.
. That instruction was:
[T]he obstruction countf ] involvefs] not only the element of specific intent but [also that the] defendant must have acted corruptly.... [A] deliberate, knowing bad purpose is not enough to convict. He must be shown beyond a reasonable doubt to have had the bad purpose to act in the precise manner a statute was intended to prevent, that is, to obstruct or try to obstruct an inquiry.... To find that the defendant acted with specific corrupt intent in the obstruction counts, he must be shown to have also acted with the bad purpose of doing the thing prohibited by the particular statute. A person who has this purpose and does an act knowingly and intentionally, with the deliberate purpose to conduct himself in a manner prohibited by the statute, acts with specific corrupt intent.
(Emphasis added). (J.A. 676-77).
. The District Court’s instructions on this issue — that North "must be shown beyond a reasonable doubt to have had the bad purpose to act in the precise manner a statute was intended to prevent, that is, to obstruct or try to obstruct an inquiry" — were thus erroneous.
. Indeed, while courts have not often focused on the distinction between corrupt motives and corrupt means in construing section 1505, or the identical language in 18 U.S.C. § 1503, almost all of the cases appear to take the view that the term "corruptly” refers to the defendant’s motive in endeavoring to obstruct the pending inquiry or judicial proceeding. See, e.g., United States v. Cintolo, 818 F.2d 980, 991-93 (1st Cir.), cert. denied, 484 U.S. 913, 108 S.Ct. 259, 98 L.Ed.2d 216 (1987); Haldeman, 559 F.2d at 115 n. 229 (approving jury instruction that included statement that " ‘corruptly,’ as used in [section 1503] simply means having an evil or improper purpose or intent”); United States v. Haas, 583 F.2d 216, 220 (5th Cir.1978) ("The term ‘corruptly’ [in section 1503] means for an improper motive, or an evil or wicked purpose”) (internal quotations and citations omitted), cert. denied, 440 U.S. 981, 99 S.Ct. 1788, 60 L.Ed.2d 240 (1979); United States v. Ryan, 455 F.2d 728, 734 (9th Cir.1972) ("The word ‘corrupt’ in the [section 1503] means for an evil or wicked purpose”). There is at least one cases, however, that seemed to construe "corruptly” to refer to the defendant’s means of obstructing. See Unit*944ed States v. Alo, 439 F.2d 751, 754 (2d Cir.1971) ("section 1505 deals with the deliberate frustrations through the use of corrupt or false means of an agency's attempt to gather relevant evidence.") (emphasis added). And still other cases seem to straddle the two views. Compare United States v. Rasheed, 663 F.2d 843, 852 (9th Cir.1981) (Section 1503 proscribes "all manner of corrupt methods of obstructing justice” whether or not they involve threats or intimidation, and that the question before the court was "whether concealment of documents is a corrupt means of ... obstructing ... justice.”) with id. (holding "that the word 'corruptly' as used in the statute means that the act must be done with the purpose of obstructing justice.”), cert. denied, 454 U.S. 1157, 102 S.Ct. 1031, 71 L.Ed.2d 315 (1982).
. For example, North testified at trial that Po-indexter told him that Mr. Reagan personally withheld from congressional leaders information about the 1985 HAWK shipment in a November 12, 1986 meeting. (J.A. 1549-50, 1666).
. According to North's testimony, his belief that this was the President’s policy on the arms sales was strengthened by Mr. Reagan's statement to the press that the United States neither knew of nor condoned any shipment of arms to Iran except for those authorized by Presidential Finding on January 17, 1986. North not only knew that to be false, but he testified that he also believed that the President knew it to be false since North himself had seen a Finding, signed by the President, authorizing arms shipments in November of 1985. North testified that he saw Poindexter personally destroy that signed Finding.
. The IC only attempted to prove North’s knowledge of unlawfulness with reference to the NSC regulation, not to the criminal statute, making inappropriate the Majority's suggestion, see Maj. Op. at 891 n. 24, that North was on notice that the statute itself prohibited the destruction of the documents. That is equivalent to deciding the question of intent as a matter of law from the court of appeals. See also Maj. Op. at 892-894 (upholding directed verdict on “pending inquiry” issue).
. It seems inconsistent for the Majority to worry about encouraging a defense of "I was only following orders," and at the same time to contend that Reagan's testimony is relevant only if it can be shown that he gave direct orders so that North would be following them.
. For that reason I think the court’s resolution of the Reagan subpoena issue cannot be reconciled with our reversal of Count 9 based on the District Court's erroneous instructions on authorization.
. I reiterate, moreover, that it is simply incorrect to claim that “the jury was authorized to interpret the ‘corrupt! ]’ intent requirement in 18 U.S.C. § 1505 according to the word’s common meaning.” Maj. Op. at 890. The jury was told nothing of the sort.
. In that regard, it seems bizarre for the district court to have asked that North "demonstrate with requisite specificity in concrete terms further information only President Reagan could supply_” (J.A. 501 (emphasis added)).
. I see nothing in those documents that establishes that North would not be able to elicit from Mr. Reagan relevant and material testimony along the lines discussed above (and an advocate might be able to see much more). The IC’s interrogatories were naturally not designed to reveal information that would be crucial to North’s defense. Even so, Mr. Reagan admits in his interrogatory answers that he had advance knowledge that Casey intended to testify falsely before Congress on November 21, 1986. In addition, the documents contain indications, which I am not free to reveal, suggesting that Mr. Reagan might well testify consistently with Mr. North’s proffer.
. Of course it is less important to protect ex-Presidents from subpoenas on the grounds that it would interfere with their official duties than it is to protect sitting presidents.
. See also United States v. Burr, 25 F. Cas. 30, 34 (C.C.Va. 1807) (No. 14,692d) ("The guard, furnished to [the President] to protect him from being harassed by vexatious and unnecessary subpoenas, is to be looked for in the conduct of a [district] court after those subpoenas have issued; not in any circumstance which is to precede their being issued.” (quoted in Nixon, 418 U.S. at 714, 94 S.Ct. at 3110)).
. Perhaps some substance could be injected into the difference between the phrases "relevancy, specificity, and admissibility" and "demonstrated specific need for evidence” by postulating that the second formulation would also require a showing that the evidence is unavailable from any source other than the President (or former President). Be that as it may, whatever testimony Mr. Reagan could have provided about his instructions to and discussions with Casey and Poindexter (and possibly about other subjects as well) was plainly unavailable to North from any other source.
.Because no privilege was asserted here I naturally have no occasion to consider what kind *953of showing might be required to overcome the privilege if the President or ex-President asserted a higher, specific confidentiality interest, for example military, diplomatic, or national security secrets. Cf. Nixon, 418 U.S. at 706, 710-11, 94 S.Ct. at 3106, 3108-09.
. In support of the more burdensome “necessary to assure the defendant a fair trial" standard applied by the district court here, the IC points to a portion of our opinion in Ehrlichman, 546 F.2d 910, in which we rejected the defendant’s claim that he was entitled to a new trial because the district court had not required Richard Nixon (who was still President at the time of the trial) (1) to appear as a witness or (2) to answer detailed interrogatories propounded by the defendant rather than the ones drafted by the court. We observed that:
[I]t would appear that if a subpoena duces tecum on a President may only be enforced where there is a "demonstrated specific need” for the testimony or the testimony is "essential to the justice of the [pending criminal] case,” certainly a more burdensome subpoena ad testificandum would have to meet at least equal standards.
Id. at 932-33 (quoting Nixon, 418 U.S. at 713, 94 S.Ct. at 3110) (emphasis added) (footnote omitted). This formulation is not inconsistent with the reading of Nixon as described in the text. And in any event, the Ehrlichman panel’s statement that the subpoena could not be enforced unless the testimony is "essential to the justice of the ... case,” id. at 933, was not necessary to decide the issue before them since Ehrlichman desired only Mr. Nixon’s testimony about a subject that the panel had already determined to be irrelevant to the issues at trial. See id. at 931 & n. 98 (asserting that the panel is in "complete accord” with the district judge’s decision that the documents relating to the concealment of the break-in were irrelevant since concealment had been dropped as part of the conspiracy charge).
. It could be argued that the disclosure here is more far-reaching and intrusive than the one in Nixon. However, while Nixon focused on the order for an in camera inspection of the tapes, the Court made clear that the Special Prosecutor would eventually receive all portions of the tapes that would be relevant and admissible at trial. See Nixon, 418 U.S. at 714-16, 94 S.Ct. at 3110-11.
. In the context of attorney-client communications, "a waiver of the privilege ... extends 'to all other communications relating to the same subject matter.”’ In Re Sealed Case, 877 F.2d 976, 980-81 (D.C.Cir.1989) (quoting In Re Sealed Case, 676 F.2d 793, 809 (D.C.Cir.1982)). The executive privilege promotes institutional concerns different from the attorney-client privilege. Compare Nixon, 418 U.S. at 708, 94 S.Ct. at 3107 with In Re Sealed Case, 877 F.2d at 979.
. I therefore do not understand why North was not given a copy of Mr. Reagan’s interrogatory answers — even under the District Judge's theory.
. Therefore, even if the Majority is correct that the issue of whether something constitutes an inquiry is a question of law, it is irrelevant to the issue before us. See Maj. Op. at 894 n. 29.
. I am afraid we three judges have produced an enormous amount of paper, but this case presented a great number of grave questions of constitutional and criminal law. This is the only case I can remember in which we should have agreed to counsel's request to exceed the number of briefing pages.