Reviewability of executive privilege decisions

• Counter arguments to SCt’s holding in Nixon that separation of powers doctrine did not preclude judicial preview of president’s claim of privilege.

• Gunther C/A. Burger misused Marbury here and conveyed misleadingly broad view of judicial competence, exclusivity, and supremacy. There is nothing in Marbury precluding constitutional interpretation which gives final authority to another branch.

• Tribe C/A. Law might be executive discretion. “SC’s opinion simply rejects w/o extended discussion any notion that as general rule executive discretion is applicable rule of law in matters of evidentiary privilege.” (Tribe)

• Koppelman C/A (1). Does SCt’s holding here mean that President is obligated to comply with SCt’s order, even if he thinks that executive privilege is absolute? Given that presidency was at one of its weakest points in American history, this was unusually convenient opportunity to assert judicial supremacy. Relevance of this precedent to presidential privilege in more normal times is doubtful.

• Koppelman C/A (2). SCt should not have granted certiorari before Circuit Court could review district court’s decision. While waiting would have been stressful, such stress was contemplated by USC’s impeachment procedures.

1. Congress had also subpoenaed tapes, so there was a constitutionally contemplated process of review already underway. (failure to obey subpoena was basis of third article of impeachment.)

2. Congress’ need for information was much stronger than Jaworski’s.

• Does Cooper v. Aaron support SC’s holding in Nixon?

• Was Nixon’s position here different from positions of Jefferson and Lincoln about presidential power to interpret USC independently of courts?

• In other contexts, courts have sometimes held that executive branch decisions about how to enforce law are unreviewable (using “take Care” clause for support). (Heckler v. Chaney, 1985; failure of FDA to regulate drugs used in human executions is not subject to judicial review under Administrative Procedure Act).

• By this view, separation of powers prevents courts from ordering executive to execute laws.

• This permits president effectively to nullify, through non-enforcement, laws enacted by Congress, including those enacted over his veto. Are political checks sufficient safeguard against this possibility?

Scope of executive privilege

• Note that although President lost Nixon case, the presidency may have won a great victory. After all, for the first time, decision established the existence of executive privilege. The question whether USC implicitly created such a privilege had for a long time been subject of heated debate among Congress, President, and academic commentators.

• What are the limits of privilege recognized in Nixon? Nixon Court held that the privilege was “presumptive,” not absolute, and that it could be overcome by the interests of the criminal justice system. This is clearly a balancing test.

• Koppelman Critique of SCt’s qualification of executive privilege:

• Article III Argument. This argument proves too much. Every privilege, including those cited by SC (attorney, priest, self-incrimination) prevents production of relevant evidence in criminal trials. If SC were correct that need for relevant evidence in trials is an overriding one, then these privileges would have to be discarded as well. This seems to leave nothing at all of the privilege, since evidence is never admissible except on showing of relevance. In fact, SC had no intention of discarding those privileges, even though some of them (e.g. priest) unlike executive privilege, are not “inextricably rooted in the separation of powers under USC.” (415). Common law privileges are not discarded simply because as privileges they interfere with search for truth. In short, SC cannot possibly believe what it argues here (argument is simply dishonest).

• The Rights of Defendants. This argument might be relevant if it were defendants trying to get evidence, but even then it would not authorize such rights to override privileges noted above because privileges should not be any less strong. But here, it is prosecutor trying to obtain evidence. If prosecutor cannot get evidence needed to make case, result is not that defendant is deprived of liberty but rather that defendant is mistakenly acquitted. It is disingenuous to rely on rights of defendants in this case, when defendants seek SC to uphold privilege.

• Possible narrower interpretation of Nixon decision (Tribe)

• Since grand jury had named Nixon as an unindicted co-coconspirator in Watergate coverup, SCt could have held that presidential privilege did not extend to conversations identified by extrinsic evidence as likely to be part of criminal conspiracy.

• But if SC rested its judgment on this “narrow” theory, SC would have had to address issue of president’s likely guilt or controversial issue whether a grand jury could lawfully brand president as co-conspirator. But SC finding that grand jury could so act, or that president was probably a co-conspirator, and that presidential privilege was consequently inapplicable, would have been widely construed as SC decision that president was in fact guilty of participation in criminal conspiracy.

• Thus, SC’s adoption of legally broader position narrowed the political consequences of its decision.

• Koppelman’s general critique of Nixon case

• SCt took advantage of president’s position in order to grandstand. SCt bypassed Court of Appeals and granted case on expedited review. This was extraordinary procedure (almost never invoked), and it was hard to justify invocation here.

• In Marbury, SC evaded issuing order to president because it was sure president would avoid it.

• In Nixon, SC reached for opportunity to issue an order because it wanted to bring Watergate case to rapid close. But Congress could have said what SC could not: namely, that Nixon’s refusal to produce tapes gave rise to an inference of his own guilt and so was appropriately punishable.

• If it was not politically possible for SC to write good opinion, that does not excuse its reaching out to write bad one.

National security interests

United States v. AT&T

• 1977 – Congress sought to obtain information from D concerning wiretaps ordered by executive branch. SCt rejected executive’s claim that national security barred the subpoena and held that USC does not confer on executive absolute discretion in area of national security, and that USC confers on Congress powers equally inseparable from national security.

Legislative Investigations and Civil Proceedings

Senate Select Committee on Presidential Campaign Activities v. Nixon

• 1974. Under what circumstances may president successfully claim executive privilege where House/Senate committee seeks material in connection with investigation into certain conduct by President and his subordinates?

• Committee’s need to know was insufficient to outweigh the privilege.

Dellums v. Powell

• 1977. Presidential privilege was outweighed in a civil action brought by people who alleged they had been unconstitutionally arrested during demonstration on Capitol Hill.

Lower level officials

• Do lower-level officials in executive branch have same privilege as president?

• In 1983, EPA Administrator Anne Gorsuch Burford asserted executive privilege as basis for resisting disclosure to U.S. Senate of law enforcement files regarding possible criminal investigations.

• Argument is that EPA Administrator is merely an agent of president, and acts with president’s powers/responsibilities. Thus, if president can claim executive privilege, then so can EPA Administrator, as long as president directs her to do so.

• Do you agree?