Wednesday, March 21, 2007

Will Bush Use Executive Privilege?

It is clear that the U.S. Attorney "firings" is not going away, as some may have thought.  The latest is Congress authorizing subpoenas to white house personel (e.g. Karl Rove) (see N.Y.Times, Wall Street Jrl, and Washington Post).  The President's response - (see Wall Street Jrl here).

Should a showdown result between the legislature and executive, here are some interesting case quotes that we may be seeing:

U.S. v. Nixon, 418 U.S. 683 (1974):

"However, neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide."

U. S. v. American Tel. & Tel. Co., 551 F.2d 384 (D.C. 1976):

"In the only previous suit presenting a clash of congressional subpoena power and executive privilege, Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (1974), this court reached the merits. In that case Congress sought the assistance of the courts to enforce a subpoena against the President, who claimed an executive privilege based on the need for confidentiality of communications between the President and his advisors. We held that, in light of the fact that the tapes were already in the possession of another congressional committee, the Senate Select Committee's showing of need for the subpoenaed tapes to perform its legislative function was inadequate to overcome the President's claim of confidentiality. Senate Select Committee establishes, at a minimum, that the mere fact that there is a conflict between the legislative and executive branches over a congressional subpoena does not preclude judicial resolution of the conflict. United States v. Nixon, 418 U.S. 683 (1974) resolved an analogous conflict between the executive and judicial branches and stands for the judiciability of such a case."

Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367 (2004):

"In light of the 'fundamental' and 'comprehensive' need for 'every man's evidence in the criminal justice system, not only must the Executive Branch first assert privilege to resist disclosure, but privilege claims that shield information from a grand jury proceeding or a criminal trial are not to be "expansively construed, for they are in derogation of the search for truth," The need for information for use in civil cases, while far from negligible, does not share the urgency or significance of the criminal subpoena requests in Nixon. As Nixon recognized, the right to production of relevant evidence in civil proceedings does not have the same "constitutional dimensions." (Citations omitted)."


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