CONSTITUTIONAL LAW
W.B. Fisch, Fall 2006
Assignment #20

3. Presidential and Congressional Immunities

UNITED STATES V. NIXON, p. 453 (1974).

• What information was being sought from the President?
• What was the purpose of the demand?
• On what ground did Nixon allege the right to refuse to disclose the information?
• Did the Court hold that there is no general executive privilege?
• Suppose the demand had been for a tape of a meeting between the President and his Secretary of State called to discuss the situation in Vietnam, at which the Attorney General (Mitchell) was also present; Mitchell claims that the subject of Watergate came up incidentally and he and the President made statements tending to exculpate Mitchell regarding Watergate. Would the result have been different?

CLINTON V. JONES, p.457 (1997).

• Should a sitting President be immune from civil suits, based on non-official acts?
• Should it matter whether they took place before taking office?
• How is this different from, or similar to, the Nixon cases?
• Nixon v. Administrator of General Services (1977).  Act of Congress
  directed the Administrator of General Services to take possession of
  Nixon's papers and tapes, so as to screen them and make appropriate ones
  available to the public. The statute delegated to the Administrator the task
  of promulgating rules for public access, pursuant to guidelines requiring 7
  stated factors to be taken into account. Nixon sued to declare the statute
  unconstitutional, claiming executive privilege. The complaint was
  dismissed and the Supreme Court affirmed.
• Nixon v. Fitzgerald (1982).  Suit for damages against ex-President Nixon
  (and others) for wrongful dismissal (plaintiff claimed to have been
  dismissed as retaliation for blowing the whistle on Air Force cost overruns).
  Held, President is absolutely immune from civil liability for official acts.

Cheney v. USDCDC, p. 463 (2004): does executive privilege attach to the Vice Presidency? Was the VP exercising an independent function, or serving in an advisory capacity to the President? Note that Congress has regulated the transparency of advisory committees (FACA), but exempts those consisting solely of executive officers and employees from the duty to make their deliberations public. On remand: exemption applied here.