Scope of executive privilege

t 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.

t 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.

t KoppelmanCritiqueof SCt’s qualification of executive privilege:

n 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 powersunder 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).

n 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.

t Possible narrower interpretation of Nixon decision (Tribe)

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

n 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.

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

t Koppelman’s general critiqueof Nixon case

n 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.

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

n In Nixon, SC reached for opportunity to issue an order because it wanted to bring Watergatecase 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.

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

Date: 2015-01-02; view: 753