United States Vs. Nixon....this is the precedent.

[Clarkie1]

<snip>

"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.

The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III.

Since we conclude that the legitimate needs of the judicial process may outweigh Presidential privilege, it is necessary to resolve those competing interests in a manner that preserves the essential functions of each branch.

A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.

But this presumptive privilege must be considered in light of our historic commitment to the rule of law. . . . We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.

In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair administration of criminal justice.

We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial."

http://www.landmarkcases.org/nixon/opinion.html

The decision was unanimous with the exception of MR. JUSTICE REHNQUIST, who recused himself.

[Kagemusha]

1. Seems to me a rational expectation of lying = grounds to swear people under oath

Collegial alternatives to testimony under oath presume good behavior that Congress can't rationally expect in this case.

But that's the law. The politics are another matter.

[onenote]

2. its a precedent, But each case turns on its facts

US v Nixon involved an attempt by Nixon to quash a subpoena issued by a court in a criminal case where indictments had been returned. Not the same as a subpoena issued by a congressional committee in a matter that arguably involves the presidents' power to appoint.

I think that the right result would be to deny the privilege in this case, but its no slam dunk and for that reason, the most likely outcome -- despite all the tough talk on both sides -- is a compromise between the Hill and the administration.

[pinto]

5. Yeah, that's the important difference. *Ethically* it's the same issue, but constitutionally,

it's another matter.

There'll be a political solution as a matter of dispute between the Executive and Legislative branches on Presidential appointments and Congressional vetting.

I'd love to see a court have cause to weigh in on this issue, though.

[Clarkie1]

6. If Congress issues a subpoena, and the executive refuses to honor it...

that becomes a judicial issue, no?

[onenote]

7. yes it will be a judicial issue -- if it gets that far

But it may get there before the issue of contempt arises. It could get to the courts in the form of a judicial action to quash the subpoena or a petition to the court for a declaratory ruling that subpoena is not constitutionally enforceable under the doctrine of executive privilege.
Ultimately, my guess is that it doesn't get to court because Congress and the WH reach a compromise. But, I wouldn't mind being wrong...

[pinto]

9. Thanks. (Question: Who would petition the court? The AG on behalf of the WH?)

[onenote]

11. Possibly so.

It seems absurd, but as I understand it, that's how it would work. For example, I understand (but haven't had a chance to independently confirm) that in US v. AT&T, the DOJ went to court to quash a subpoena issued by a Congressional committee to AT&T asking for information regarding AT&T's communications with the executive branch. And in another case (US v House of Representatives) it is my understanding that DOJ filed for a declaratory ruling petition seeking a determination that the executive branch didn't have to comply with a subpoena issued by the House.

What makes this absurd, of course, is that if the case got to the stage where a subpoena was held to be valid but the WH refused to comply, enforcement of the resulting contempt citation (assuming was adopted by Congress) would fall to the DOJ.

[pinto]

12. Ahhh! Constitutional Black Hole. Double time warp, space/time disconnect.

Yep....Reminds me of Watergate.

:hide:

Thanks. This may be a hell of a ride.

[Clarkie1]

10. I don't think there is going to be a compromise on this one.

That's just my hunch.

[pinto]

8. At that point, I would think so, but I'm not sure...

:shrug:

[notadmblnd]

3. kick to help it make it to the greatest page

It betters the chance that someone who has the power to get it out there, will see it.

[pinto]

4. Thanks for the post Clarkie1. (One important aside - This all pertained as a matter of the courts.)

(timeline reads from bottom to top)

Diagram of How the Case Moved Through the Court System

Supreme Court of the United States

In a special session, the Supreme Court heard oral arguments on July 8, 1974. The case issues: 1) Do the courts have the jurisdiction to hear a case involving a dispute within the executive branch? 2) Does the president have the power of absolute privilege and, if so, does his privilege prevail over the demands of the subpoena in this case? The Court rules that it does have jurisdiction and that the president's executive privilege power is not absolute. Therefore, the president must comply with the subpoena and turn over the tapes.

United States v. Nixon (July 24, 1974)

U.S. Circuit Court of Appeals

President Nixon appeals the U.S. District Court decision to the U.S. Court of Appeals, which does not hear the appeal because the case moves directly to the Supreme Court of the United States. The special prosecutor asks the Supreme Court of the United States to take the case in the interest of achieving a final resolution to the case. The Court agrees to hear the case.

U.S. District Court

Rules against President Nixon and supports the subpoena, saying that he must turn over the tapes

United States v. Mitchell (May 20, 1974)

President Nixon releases edited transcripts of 43 conversations, 20 of which had been subpoenaed. President Nixon refuses to release more material and tries to ignore the subpoena.

April 30, 1974

U.S. District Court

Judge John Sirica issues a subpoena, ordering President Nixon to turn over certain tape recordings of specifically named advisors and aides on particular dates.


In re Subpoena to Nixon (August 29, 1973)

http://www.landmarkcases.org/nixon/digram.html