Executive Privilege and Immunity

Question 1

Executive Privilege and Immunity

Answer 1

Overview
a) General Rule: the need for confidentiality justifies a presumptive privilege for presidential communications…to be considered in light of the historic commitment to the rule of law. (United
States v. Nixon)
b) Spectrum: where a claim of privilege is placed on the ground of military or diplomatic secrets, the Courts have traditionally shown the utmost deference to presidential responsibilities.
c) General privilege: the generalized assertion of privilege must yield to the demonstrates specific need for evidence in pending criminal trial (U.S. v. Nixon).
d) Damages: a president is entitled to absolute immunity from damages liability predicated on his official acts, even at the outer limits. (Nixon v. Fitzgerald).
e) Prior Conduct: the federal courts have power to determine the Hones of unofficial conduct including that occurring before he became President (Clinton v. Fitzgerald).

Question 2

United States v. Nixon (1974)(p. 249)

Answer 2

a) Nixon named as an un-indicted co-conspirator. Prosecutor asked the judge to subpoena tapes and documents from the white house to use in the trial against the officials. White house moves to quash the subpoena on the grounds of executive privilege; i) Saturday Night Massacre ii) President claims general privilege: the business of running a country cannot be done without the knowledge that they can communicate confidentially. Says implicit in Art 2
b) Rule: The need of confidentiality justifies a presumptive privilege for presidential communications…to be considered in light of the historical commitment to the rule of law.
i) Current specifics: where the claim of privilege is placed on the ground of military or diplomatic secrets, the courts have traditionally shown the utmost deference to presidential responsibilities. However, no case of the court has extended this high degree of deference to a president’s generalized interest in confidentiality.
c) New Rule: The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.
i) Nixon had to comply –> information was produced – impeachment hearings – Resignation of Nixon – Presidency of Ford.

Question 3

Nixon v. Fitzgerald (1982)(p. 254) -

Answer 3

Nixon sued for firing federal employee while in office.

a) Principle: A president is entitled to absolute immunity from damages liability predicated on his official acts.

Question 4

Clinton v. Jones

Answer 4

a) President Clinton gets sued in a civil action for sexual harassment.
i) There are some number of immunities of government officials based on their performing official duties. Members of congress have immunity in things done in their official capacity.
b) The president is claiming that the nature of the office is the president should have temp immunity from mundane lawsuits. He lost that claim, but the action was dismissed on motion for SJ.

Question 5

Impeachment of the President

Answer 5

a) Impeachment is the equivalent of an indictment. Takes place in the House, trial in the Senate.
b) What is an impeachable offence?
i) Treason, bribery, or other high crimes and misdemeanours.
ii) It is understood that high crimes and misdemeanours are not limited to the criminal code. iii) Argument in favour of ‘ordinary crimes’ not being impeachable offences:
(1) treason is an official wrong, bribery is an official wrong. therefore a close reading of the text would say that nonofficial crimes are not impeachable.
(2) statutory interpretation of the same kind (ejusdem generis) - should be interpreted that high crimes and misdemeanours should be interrupted in light go the other two crimes.
c) Presidents that have been impeached: Andrew Johnson in 1868 and William Clinton in 1999 (the senate voted to acquit in both cases).