Studied by 26 people
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
certain national security needs
protecting the privacy of White House deliberations when it is in the public interest to do so
allows the presidential advisors to freely speak their minds w/out the threat of a subpoena
executive privilege info
first president to invoke it
first judge to apply it
first president to name it
first SC case to acknowledge its constitutional basis
Washington
Marshall
Eisenhower
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
bc he was pres he was immune from court to produce documents and other material
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
who sought documents from Pres Trumps accounting firm?
what is the question presented? (grant cert to decided)
New York County District Attonery’s Office
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
Note 
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