pos lesson 17

executive privilege

* 2 circumstances it can be used

the right of the president and high level executive branch offices to withhold information from Congress, the courts, and ultimately the public


1. certain national security needs
2. protecting the privacy of White House deliberations when it is in the public interest to do so


1. allows the presidential advisors to freely speak their minds w/out the threat of a subpoena

executive privilege info


1. first president to invoke it
2. first judge to apply it
3. first president to name it
4. first SC case to acknowledge its constitutional basis

1. Washington
2. Marshall
3. Eisenhower
4. US v Burr

US v Burr (1807)

* why did Aaron Burr want the court to require Pres Jefferson to give him the documents

Burr was accused helping Spanish taking US land

Pres Jefferson claimed he had letter documentation that would prove that Burr was guilty

* he wanted to see the letter to aid in proving his innocence

how is a president different than a king - John Marshall

a king is born with power and can do “no wrong“

a president by contrast is “of the people“ and is subject to the law

* 2019 quoted by then Judge now Justice Brown Jackson
* Federalist 51 (James Madison)
* Federalist 69 (Alexander Hamilton)
* Alexis de Tocqueville

Holding

* how did marshall rule on Jefferson claim the pres was immune from a subpoena dues tecum
* (a request for evidence)

he rejected it - rule of law

* Subpoena dues tecum may be issued to any person to whom an ordinary subpoena may issue
* presidents are subject to subpoenas in criminal cases

did US v Burr affect the perceived legitimacy of the court

Increases the legitimacy, the court makes the President produce documents by saying he is required to comply with a subpoena duces tecum

even when SCOTUS is not involved, congress and the president tussle over executive privilege examples

Prisoners held at Ft. McHenry 1861 during the civil war

* House of Representatives requests that lincoln provide info (grounds, reasons, evidence) why police commissioners of Baltimore were arrested and detained in the Fort
* Lincoln says that it is against the public interest to provide them with that information

The Watergate Scandal

* background

1972

* burglars break into Watergate building the democratic national committee headquarters
* burglars and 2 white house officials go on trial

1973

* Senate Watergate Committee start to investigate, **Breyer** works a special prosecutor
* Nixon’s attorney general appoints Archibald Coxs as special prosecutor
* White House official reveals existence of Nixon’s secret taping system in Oval Office

Watergate Scandal

* Washington Post reporters and their importance

Carl Bernstein and Bob Woodward

* their reporting brought mounting pressure on the administration and eventually prompted the Senate to create the Watergate Committee

what request did the senate and the special prosector make the led to the Saturday Night Massacre

Watergate Committee learns about secret taping system they want to find out “how much the pre know and when did he know it“

* they request the tapes and Nixon says no
* Oct 20 1973
* Nixon forces the resignations of AG Richardson and deputy AG for refusing to fire Cox (special prosecutor hired to conduct independent investigation of Watergate hired by Richardson his newly hired attorney general)
* this was very damaging to Nixon’s reputation, starting the talk of impeachment
* Washington Post and New York Tomes reported on the night

what does a special prosecutor do?

they are a prosecutors (someone who presents the case for prosecution in criminal proceedings) who work in an independent office and exercise jurisdiction over the criminal investigation

* they work in cases when a Justice Department investigation would have a conflicted interest

What did special prosector Cox do?

he subpoenaed the tapes from the oval office

* Nixon said no and gave him transcripts
* Cox said this wasn’t good enough he wants the tapes → Nixon fires him

what did Judge Sirica demand, by subpoena, that nixon turn over?

(district judge)

* what two reasons did Nixon give to support his claim of executive privilege?

he demanded the tapes

Nixon begins to claim executive privilege over the content of the tapes


1. bc he was pres he was immune from court to produce documents and other material
2. claims that the tapes contained highly sensitive national security and intelligence information

what parties requested the Nixon White House recordings

the senate, Judge Sirica, the special prosecutors

what legal authority did Leon Jaworski (the new special prosecutor that replaced Cox) assert executive privilege from?

not a constitutional power

* one of power derived from practice and custom, meaning it had to be defined in a narrow way that limited the powers of the President
* Jaworski insisted that Nixon was attempting to place himself beyond the law a position incompatible to rule of law

After hearing oral argument what was one legal issue that all justices agreed on

Nixon should furnish the tapes

* they also agreed they should hear the case bc Attorney General Bork had contact not only with the pres but with congress

the rose mary stretch

Rose Woods was Nixon’s secretary, she claims that she “accidentally“ erased part of the tape by mistake

* there is a 18 min gap in the tapes

US v Nixon (1974) 8-0

the constitution gives the president executive privilege, the court determines whether the privilege applies by balancing the need for privilege against the need for judicial process (to punish the guilty and acquit the innocent)

* case was finish in less than 2 months

Justice Marshall’s compromise

he didn’t believe that the constitution established the right to executive privilege so the opinion of the court needed to have a board opinion that would limit the concept of executive privilege

Justice Burger’s Compromise

& the written opinion

He believed the court could not limit the President’s privilege

* he agreed however that the pres alone should not be able to establish the scope of his powers bc the pres and no one was above the law

Executive Privilege is based on and overcome by the separation of powers

What factors did the Court consider in deciding whether a presumption of privilege could be overcome by the courts

* whether invoking the privilege would allow the innocent to suffer
* whether invoking the privilege would allow the guilty to escape
* whether rejecting the privilege would discourage executive branch officials from freely exploring policy alternatives privately

did US v Nixon affect the perceived legitimacy of the court

Yes made them seem powerful, they made him produce the tapes and ruled creating a def of executive privilege

SCOTUS legal basis for executive privilege

\
fifth amendment: no one shall be compelled in any criminal case to be a witness against himself, right to due process

Art II sec 2: enumerated powers Commander in Chief has secret military info

sixth amendment: every defendant in a criminal trial has the right to be confronted with the witness against him

* when privilege is sought in a criminal trial based only on the generalized interest of confidentiality, it can not prevail over the fundamental demands of due process of law in the fair administration of criminal justice

SCOTUS reasons for rejecting Nixon’s claim of absolute privilege

the set-up of the government, separation of powers

rule of law, no one is above the law

Nixon does not claim executive privilege to protect the nation, on the ground of military or diplomatic secrets

Clinton v jones (1997)

the president does not have immunity from defending a federal civil suit while he’s in office

Trump v. Mazars (2020)

president does not have an absolute privilege to protect him from congressional subpoenas for his tax returns

Trump v. Vance (2020) 7-2

president does not have absolute immunity from state criminal proceeding while he is in office

Trump v Vance


1. who sought documents from Pres Trumps accounting firm?
2. what is the question presented? (grant cert to decided)

1. New York County District Attonery’s Office
2. granted certiorari to decide whether Art II and the Supremacy Clause categorically preclude or require a heightened standard for the issuance of a state criminal subpoena to a sitting pres

Supremacy Clause

federal law takes precedence over state laws

how did Trump v Vance affect the perceived legitimacy of the court?

the court had high legitimacy as they cited past cases Clinton v Jones, US v Nixon, and US v Burr to support their decision making them seem united in history, also 7-2 is a high majority for an issue

Trump v Thompson background

after trump was no longer pres he claimed executive privilege to stop the national archives from releasing documents request by the House Select Committee investigating the events of 1/6

Trump v. Thompson (2022) - shadow docket case

what is not a substantial concern raised in the litigation

the question of whether and in what circumstances a former pres may obtain a court order preventing disclosure of privileged records from his tenure in office

* the appeals court analyzed the case and rejected the pres claim to this privilege and it would have failed even if he was president

what issue was the court careful not to decide

whether a former pres could invoke judicially created doctrine of executive privilege to keep info secret

* the issue was controversial and it was not necessary to resolve the issue presented to them

why did justice Kavanaugh write separately

he believes that a former pres must be able to successfully invoke pres communication privilege that occurred during his pres even if the current pres does not support the privilege claim

* otherwise this would eviscerate the executive privilege for Pres communications