CONSTITUTIONAL LAW SPRING 2008 – PROF. FISCHER Outline for Class 18: Executive Power and Limits on Executive Power I. Central Themes: Executive Powers and Limits on Executive Powers – formalist vs. functionalist interpretation II. Executive Privilege A. B. C. D. E. III. What secrecy does executive privilege protect? Does the Constitution mention executive privilege? Constitutionality and scope of executive privilege: United States v. Nixon (1974) [C p. 282]- is there executive privilege; is it absolute? Cheney v. U.S. District Court for the District of Columbia (2004) [C p. 286]: requests for information in a civil case; distinguished United States v. Nixon Current dispute between President Bush and Congress over executive privilege for White House officials who are refusing to testify or produce documents in response to congressional subpoenas as part of the investigation into the 2006 firings of 9 U.S. Attorneys. On 2/14/2008 the House voted (over protests of many Republicans, who walked out before the final vote) to issue contempt citations against Chief of Staff Josh Bolten and former White House counsel Harriet Miers. Normally congressional subpoenas are enforced by the Justice Department, but Attorney General Michael Mukasey appears unlikely to pursue contempt charges against White House officials because the Justice Department has taken the view that they are protected by executive privilege. How, if at all, can the House enforce the contempt citations? Presidential Immunity to Criminal and Civil Suits A. Criminal Prosecutions Can a former president be criminally prosecuted? Can an impeached president be prosecuted after leaving office? Can a sitting president be criminally prosecuted? 1 B. Civil Actions Can a president be sued for injunctive relief while in office? Mississippi v. Johnson (1866) Can a president or ex-president be sued for money damages for conduct during term in office? Nixon v. Fitzgerald (1982) [C p. 354] Can a president be sued for conduct prior to taking office? Clinton v. Jones (1997) [C p. 357] C. Do other executive officials have any immunity in lawsuits for damages? D. What about members of Congress? See Speech and Debate Clause in Art. I § 6 barring them from being “questioned in any other Place” for “any Speech or Debate in either House.” IV. Impeachment Power A. Text: Article I § 2 cl. 5: “The House of Representatives . . . shall have the sole Power of Impeachment” Article I § 3 cl. 6: “The Senate shall have the sole Power to try all Impeachments” Article I § 3 cl. 7: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment according to Law.” Article II § 4: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” B. What are High Crimes and Misdemeanors? Is the Supreme Court likely to determine this issue? Why or why not? C. What procedures must be followed when there is an impeachment and removal proceeding? Is the Supreme Court likely to determine this issue? Why or why not? 2 Remember Nixon v. United States (1993) from Class 3 [C p. 95]. D. Impeachments and Serious Efforts to Impeach Presidents i. Andrew Johnson ii. Richard Nixon iii. Bill Clinton 3 4