Executive Privileges and Immunities

Question 1

Executive Privileges?

Answer 1

ability of president to keep secret conversations with advisors.

• Constitution doesn’t mention such authority, but presidents have claimed it throughout US history
• Justifications: Need so presidents will get candid advice, to protect national security & diplomacy

Question 2

Executive Immunities?

Answer 2

President may not be sued for conduct while in office

• President may be sued in civil case for conduct prior to office
• It remains unsettled whether a president may be criminally prosecuted while in office

Question 3

United States v. Nixon (1974) J. Burger

Answer 3

executive privilege isn’t absolute

Officials in Nixon administration covered up burglaries that were connected to re-election campaign.

Special prosecutor issued subpoena, Nixon refused to comply under executive privilege.

Holding: Executive privilege is not absolute. There must be a particularized interest of confidentiality (like military or diplomatic secrets)

3 main points: (1) Court’s role to decide whether and scope of executive privilege; (2) executive privilege does exist as inherent presidential power; (3) exec privilege is not absolute and must yield when there are important counter-veiling interests, such as a criminal prosecution

Absolute privilege would interfere w/ ability of judiciary to perform its constitutional function, under Art III. Need for evidence at trial outweighs privilege here

Dicta: this was not a non-justiciable political question b/c it was an intra-branch dispute and president alone has authority to control prosecutions; powerful reaffirmation of power of judicial review & no one is above the law

Question 4

Nixon v. Fitzgerald (1982) J. Powell

Answer 4

immunity from civil suits for official acts

Fitzgerald sued president for money damages after his job was eliminated.

Holding: President has absolute immunity for civil suits for his official acts b/c of unique status and important duties

Concerns: frequent suits against president would detract from ability to do job

Justifications: other checks against the president exist, both formal (impeachment) and informal (political pressure) so that this absolute immunity is okay

Dissent: scope of immunity determined by function, not office of president

Question 5

Harlow v. Fitzgerald (1982)

Answer 5

immunity doesn’t extend to others

Absolute presidential immunity does not extend to President’s senior aides

Question 6

Clinton v. Jones (1997) J. Stevens

Answer 6

immunity doesn’t extend to prior conduct

P sues after being denied advancement at work after she rejected then-governor Clinton’s sexual advances.

Holding: Suit against president should be neither stayed nor dismissed if it is based on conduct that allegedly occurred prior to taking office.

Immunity exists to safeguard exercise of discretion by officeholder – thus, no basis for immunity for unofficial conduct. Immunity awarded to the office of the president, no the person.

This would not interfere w/ president’s carrying out important functions of office – unlikely that a deluge of this kind of litigation will engulf presidency

Implications: this was not accurate, it took a huge amount of Clinton’s time, so it does support the idea that litigation is an inevitable distraction and should be stayed. However, it is also an important statement that no one is above the law.

Not addressed: what is private conduct and what isn’t?