MODULE 5 – PRESIDENTIAL POWER: PRIVILEGES, IMMUNITIES, AND WAR POWERS

What is the core tension with Presidential Power?

Hamilton’s energy in the executive/bold and unhesitating action from the President vs accountability and checks on power

Define Powers and Privileges & Immunities.

Powers: Let the President govern

Privileges & Immunities: Defensive shields against subpoenas (orders to produce evidence), lawsuits, and prosecution.

Executive Privilege: Rule

Executive privilege (the President’s right to keep communications with close advisors confidential) is presumptive, not absolute.

What factors do you weigh to determine if the President has the right to keep communications with close advisors confidential?

What’s Protected:

1. Candid advice

2. Military, diplomatic, or national security secrets

What’s Not Protected:

1. Relevant evidence in a criminal trial

Who reviews the privileged material first?

The judge reviews it privately

Who decides whether Executive Privilege applies?

Courts

United States v. Nixon:

The Watergate Special Prosecutor subpoenaed Oval Office tapes for the criminal trial of seven indicted defendants. Nixon, named an unindicted co-conspirator, released only edited transcripts and claimed absolute privilege.

Holding?

Courts decide whether it’s privileged or not.

What type of immunity do official acts receive? Why?

Official acts = absolute immunity from civil damages suits.

So the President can act without fear of personal liability.

Do unofficial acts receive immunity or delay of the lawsuit until the President is out of office? Why or why not?

No, not even for a sitting President. Here’s why:

1. The purpose of immunity (acting without fear of personal liability) does not reach private conduct.

2. A court hearing the case is doing its job. There is no separation of powers problem.

3. Taking up the President’s time is not unconstitutional.

4. Trial courts can dismiss frivolous suits, sanction harassment, and schedule around his duties.

5. Past Presidents (Grant, Carter) complied with legal process.

Paula Jones sued for damages over sexual advances Clinton allegedly made in 1991 as Governor of Arkansas. As President, Clinton asked to delay the case until his term ended.

Holding?

Immunity denied. The conduct was unofficial and pre-presidency, so neither immunity nor delay was required.

Does the President have absolute immunity against criminal subpoenas (state or federal)? Why?

No. No immunity and no heightened showing of need. Here’s why:

1. Presidential duties are not hampered.

2. Immunity does not cover personal papers.

3. Public wants effective law enforcement.

4. Existing bans on arbitrary or malicious investigations guard against harassment anyways.

Trump v. Vance: A New York grand jury subpoenaed President Trump’s personal financial records. Trump argued immunity. Holding?

Trump’s immunity argument is rejected.

Why does Congress have an implied power to subpoena information?

Because the info from subpoenas help Congress create new laws

What must the subpoena achieve for Congress to have the authority to impose it?

1. must further a legitimate, stated legislative task

2. may not be used for law enforcement

3. may not expose private affairs for the sake of exposure.

Congress issues a subpoena against the President for his personal records. What must Congress prove?

1. Does the legislative purpose warrant involving the President, or can other sources supply the information?

2. Is the subpoena no broader than reasonably necessary?

3. What evidence shows that it advances a valid legislative purpose?

4. What burdens does it place on the President (distraction, stigma)?

What is the Rule for Criminal Immunity from Criminal Prosecution?

A former President’s criminal immunity depends on the type of act.

Absolute

Does the President have criminal immunity for Core Constitutional Powers (Exclusive & Preclusive Authority)?

Yes. Absolute immunity.

Can Congress and courts examine the President’s pardons, vetoes, or directions to the Justice Department?

No. Absolute immunity for core constitutional powers.

Does the President have criminal immunity for Other official acts (within the outer perimeter of official duties)?

Presumptive immunity. However, if the Government shows that the prosecution poses no danger of intrusion on the authority and functions of the Executive Branch, the presumption disappears.

Does the President have criminal immunity for Unofficial private acts?

No. e.g. campaigning and fundraising

Hypo: The President orders the Justice Department to investigate a political rival in order to damage the rival's campaign. Will motive be considered? The prosecutor argues that this was unofficial because the purpose was personal and political. The court may not consider that purpose. It looks only at the nature of the act: directing Justice Department investigations is a core executive power, so the act is official and absolutely immune.

No. While the prosecutor may argue that this was unofficial because the purpose was personal and political, the court cannot consider motive.

Can courts examine the President’s motives?

No

Is an act unofficial if it allegedly violates a law?

No, it is still considered official.

What do courts look at to determine if a President’s actions are within his constitutional powers, “other official acts” or “unofficial acts”?

Context, content, form

Assume a court has already decided that organizing alternate slates of electors was unofficial conduct, done as a candidate. The President can be prosecuted for it since it is unofficial conduct.

To convict, the prosecutor must prove intent: that the President knew he had lost the election and was acting dishonestly.

The prosecutor's best proof is an Oval Office meeting where the Attorney General told the President, "We investigated, and there was no fraud."

What rule applies here?

The prosecution can’t use evidence of immune official acts to prove liability for unofficial acts.

Can a President be both impeached and criminally prosecuted for the same conduct?

Yes, as long as criminal immunity is not an issue

Trump v. United States:

Former President Trump was indicted on four counts (including conspiracy to defraud the United States and obstruction of an official proceeding) for efforts to overturn the 2020 election, and he claimed absolute immunity for all official acts. Apply the law to the following facts:

1. Trump’s discussions with Justice Department officials, including a threat to remove the Acting Attorney General. Immune?

2. Pressuring the Vice President about the January 6 certification. Immune?

1. Yes

2. Yes, official and presumptively immune

What document divides war powers? Why?

The Constitution. To slow the rush to war.

Who declares war, funds and regulates armed forces, and calls forth the militia?

Congress

Who repels sudden attacks?

The President

Can the President respond with force to an attack or rebellion without a declaration of war?

Yes

Can the President initiate or declare war?

No, only Congress has the authority to declare war.

Can the President exhibit military force if the United States is attacked without Congressional approval?

Yes. He is "bound to resist force by force."

What does it mean that a war can exist “de facto” and what can happen after?

A war is established once the fighting is real, whether or not Congress has formally declared it.

After: President can blockade ports and capture enemy property. The President can treat all residents of enemy territory as enemies. Blockade proclamation = the war exists.

True or false: Civilians must be tried in civilian courts when those courts are open.

True

Where can unlawful enemy combatants be tried?

Military commission (military court with no jury)

What are unlawful enemy combatants?

an enemy who 1) enters secretly, 2) without a uniform, 3) to commit hostile acts (a spy or saboteur). He receives no prisoner of war protection.

How much notice must the President provide Congress before deploying troops?

at least 48 hours

How long does the President have to withdraw troops after deploying them?

60 days without Congressional approval

During wartime, the Constitution still applies with a “somewhat different voice.” (Justice Rehnquis) What does that mean?

1. Rights are applied less strictly

2. Courts weigh the government's security interest more heavily than they would in peacetime.

What is Executive Detention in the War on Terror?

the President holding suspected enemy fighters without an ordinary criminal trial.

What did Congress do after the 9/11 terrorist attacks?

Authorized the President to use force against those responsible. Presidential power is strongest when Congress has authorized the action.

True or false: War increases judicial deference but never eliminates constitutional limits or judicial review.

True