The invisible woman and invalid witness, the disqualified candidate and the recessionary economy of friends. ClIck here for more.

  Text Protected. 



If you had no birth certificate at the time of the incident or at the time of the indictment, the indictment based on your evidence is deficient.  She was not a legal person at the time of the signing and commissioning of the indictment of the affidavit that supported the indictment. So, she was a not a legal entity at the time of signing and therefore the indictment is null and void as the affidavit is null and void. Only an existing legal entity can provide evidence to the Court. Only a registered legal entity can sue or have standing in a Court.    You cannot change that now. She did not exist legally until after the indictment if you give her some birth certificate now.  Her alleged evidence is from a Stormy Daniels.  There is no Stormy Daniels any where in the USA according to the official record.   

Is Donald the real winner of the 2020 election and only candidate when the other apparent candidate was legally disqualified but he says he was standing in as a cop to regain some semblance of his version of normalcy but he really meant he is regaining control and involvement; getting his hands back on the pilot wheel of the ship? What is the truth here? Is the Court being asked to aid an abet an interruption of democracy for a dramatization of a time when Sam Adams stole the ballot boxes in the early years of the fledgling nation; possibly in 1720 and the 2020 election was just an anniversary? It would only seem that one disqualified date had his own breaches of US code that prevented him from being a real candidate and I am not saying that he does not comport well as a politician. He certainly does and maybe I did not mind the interruption as he called on friendship to help him get one more hurrah in his treasure trove of life awards and honors.  He is a miraculous human "bin" of amazing dna and American creole anthropology. He has never owned a property and this makes him unique to me with his experience and human wisdom. But, he is like an artful dodger, a fast talking snake oil sales man now selling nothing but "tar" tooth paste, promising that things will improve. But, that is not tooth paste. That is not the Constitution bucko. That is tar. But,  I do have coal flavored tooth paste and my teeth are clean; not too bad eh?    I would not begin to understand him if he thought he should still be able to be a candidate after his own campaign violations and the key violation is that he did not resign from his receipt of funds from the treasury as a Vice Presidential pensioner. Some how, being a candidate for the Presidency required him to do so before he started campaigning. He did not comply  The problem is  not that he is an employee or exempt employee as a former president but he is still defined as a person under the code and he is not a current sitting Vice President with exemption.  But, he is still a "Person" in receipt of funds from the treasury who appeared and sought campaign finance. 

Definition of Person

Person means an individual, partnership, committee, association, corporation, labor organization, and any other organization or group of persons.

18 U.S. Code § 602.Solicitation of political contributions

(a)It shall be unlawful for—
(1)
a candidate for the Congress;
(2)
an individual elected to or serving in the office of Senator or Representative in, or Delegate or Resident Commissioner to, the Congress;
(3)
an officer or employee of the United States or any department or agency thereof; or
(4)
a person receiving any salary or compensation for services from money derived from the Treasury of the United States; to knowingly solicit any contribution within the meaning of section 301(8) of the Federal Election Campaign Act of 1971 from any other such officer, employee, or person. Any person who violates this section shall be fined under this title or imprisoned not more than 3 years, or both.
(b)
The prohibition in subsection (a) shall not apply to any activity of an employee (as defined in section 7322(1) of title 5) or any individual employed in or under the United States Postal Service or the Postal Regulatory Commission, unless that activity is prohibited by section 7323 or 7324 of such title.
(June 25, 1948, ch. 645, 62 Stat. 722; Pub. L. 96–187, title II, § 201(a)(3), Jan. 8, 1980, 93 Stat. 1367; Pub. L. 103–94, § 4(a), Oct. 6, 1993, 107 Stat. 1004; Pub. L. 103–322, title XXXIII, § 330016(1)(K), Sept. 13, 1994, 108 Stat. 2147; Pub. L. 109–435, title VI, § 604(f), Dec. 20, 2006, 120 Stat. 3242.)

 If he was still receiving money at the time of the election, was he an employee? If he was, he was not exempt from prohibitions against campaigning as a former President or former Vice President and I cannot exempt him.  I think he was just on pension. So, 18 US Code 602 is the most relevant code. If the money he receives  is for managing his library, then that is employment and code 7323 applies.   But, who can exempt him for legal culpability?   I am trying to write a coffee shop book.  But, I admit I was getting tired of the 4 years of economic dithering that was not unlike the dithering that took place before that. So, this is when we ask what is going on really in politics? Maybe we will just make the law and the constitution rule. This is not a game where you say you don't know how to solve the national economic concerns and only offer war as  a solution to break the malaise. Maybe if you need war as a motif, we can say we brand everyone in North America as a recipient of NAFTA Uncle Same Income Support. With every payment, you will also get an email about a US warrior hero from all races, creeds or colours and you can also sign up to a new NAFTA national guard that makes every citizen an on call guardsman.     

5 U.S. Code § 7323 - Political activity authorized; prohibitions

Subject to the provisions of subsection (b), an employee may take an active part in political management or in political campaigns, except an employee may not—
(a)Subject to the provisions of subsection (b), an employee may take an active part in political management or in political campaigns, except an employee may not—
(1)
use his official authority or influence for the purpose of interfering with or affecting the result of an election;
(2)knowingly solicit, accept, or receive a political contribution from any person, unless such person is—
(A)
a member of the same Federal labor organization as defined under section 7103(4) of this title or a Federal employee organization which as of the date of enactment of the Hatch Act Reform Amendments of 1993 had a multicandidate political committee (as defined under section 315(a)(4) of the Federal Election Campaign Act of 1971 (2 U.S.C. 441a(a)(4))); [1]
(B)
not a subordinate employee; and
(C)
the solicitation is for a contribution to the multicandidate political committee (as defined under section 315(a)(4) of the Federal Election Campaign Act of 1971 (2 U.S.C. 441a(a)(4))) 1 of such Federal labor organization as defined under section 7103(4) of this title or a Federal employee organization which as of the date of the enactment of the Hatch Act Reform Amendments of 1993 had a multicandidate political committee (as defined under section 315(a)(4) of the Federal Election Campaign Act of 1971 (2 U.S.C. 441a(a)(4))); 1 or
(3)
run for the nomination or as a candidate for election to a partisan political office; or
(4)knowingly solicit or discourage the participation in any political activity of any person who—
(A)
has an application for any compensation, grant, contract, ruling, license, permit, or certificate pending before the employing office of such employee; or
(B)
is the subject of or a participant in an ongoing audit, investigation, or enforcement action being carried out by the employing office of such employee.
(b)
(1)
An employee of the Federal Election Commission (except one appointed by the President, by and with the advice and consent of the Senate), may not request or receive from, or give to, an employee, a Member of Congress, or an officer of a uniformed service a political contribution.
(2)
(A)
No employee described under subparagraph (B) (except one appointed by the President, by and with the advice and consent of the Senate), may take an active part in political management or political campaigns.
(B)The provisions of subparagraph (A) shall apply to—
(i)an employee of—
(I)
the Federal Election Commission or the Election Assistance Commission;
(II)
the Federal Bureau of Investigation;
(III)
the Secret Service;
(IV)
the Central Intelligence Agency;
(V)
the National Security Council;
(VI)
the National Security Agency;
(VII)
the Defense Intelligence Agency;
(VIII)
the Merit Systems Protection Board;
(IX)
the Office of Special Counsel;
(X)
the Office of Criminal Investigation of the Internal Revenue Service;
(XI)
the Office of Investigative Programs of the United States Customs Service;
(XII)
the Office of Law Enforcement of the Bureau of Alcohol, Tobacco, and Firearms;
(XIII)
the National Geospatial-Intelligence Agency; or
(XIV)
the Office of the Director of National Intelligence; or
(ii)
a person employed in a position described under section 3132(a)(4), 5372, 5372a, or 5372b of title 5, United States Code.
(3)
No employee of the Criminal Division or National Security Division of the Department of Justice (except one appointed by the President, by and with the advice and consent of the Senate), may take an active part in political management or political campaigns.
(4)
For purposes of this subsection, the term “active part in political management or in a political campaign” means those acts of political management or political campaigning which were prohibited for employees of the competitive service before July 19, 1940, by determinations of the Civil Service Commission under the rules prescribed by the President.
(c)
An employee retains the right to vote as he chooses and to express his opinion on political subjects and candidates.
(Added Pub. L. 103–94, § 2(a), Oct. 6, 1993, 107 Stat. 1002; amended Pub. L. 103–359, title V, § 501(k), Oct. 14, 1994, 108 Stat. 3430; Pub. L. 104–201, div. A, title XI, § 1122(a)(1), Sept. 23, 1996, 110 Stat. 2687; Pub. L. 106–554, § 1(a)(3) [title VI, § 645(a)(2)], Dec. 21, 2000, 114 Stat. 2763, 2763A–170; Pub. L. 107–252, title VIII, § 811(a), Oct. 29, 2002, 116 Stat. 1727; Pub. L. 108–458, title I, § 1079(a), Dec. 17, 2004, 118 Stat. 3695; Pub. L. 109–177, title V, § 506(b)(2), Mar. 9, 2006, 120 Stat. 249; Pub. L. 110–417, [div. A], title IX, § 931(a)(1), Oct. 14, 2008, 122 Stat. 4575.)


Now, this demand on the system that Saul Biden should get what he wants is not a good thing for any of us. You don't always get what you want and I know I did not always get what I wanted for Christmas; eh? This is also not a game show where you can call a friend and "shazam"; the law or the bank just stops doing their job.  Right now, Saul is up for a fine or a prison term so maybe to be fair Saul Biden walks and Donald walks if this is what is going on in front of my young children; in Africa. They are all in Africa. But, Donald really has no legal problem  except for this incessant Salem witch hunt on a Dutch Creole property owner; or is it Sal vs. David or Jeroboam Biden with his more cave men dna vs. Rehoboam.  I am not the Judge.  

There is time yet to see how this will all unfold if everyone is supposed to get what they want; right? Also, there has to have been a deal between these people regarding the fraudulent stage of a riot on January 6th. No one was really sworn in in January of 2021.  We have learned much since then and we got a new top gun movie. We also see what global cooperation can do that can actually take a moment to, in coordinated action, use WHO and UN powers to put a needle in your arm and so therefore to help the global economy and enforce the UDHR Art. 25, they can use World Bank powers to put money into our experience, consumer stimulus into our lives.    There are existing income support policies. Some pay $10,500.00 a year in Maine or $30,000.00 in Illinois and some pay more. The requisite amount under current global capitalist expectations is $200,000.00 per year. Because you do not accept what you are worth to the economy and also your legal entitlement, the money will be forced ,without consent, into your lives just like they force stop signs and stop lights into your lives. It looks like we will be content on $ CAD 70,000.00 per year to get it going. The World Bank card will debit the Ministry of Finance that is associated with your Soc. Insurance Card.   

The World Bank Card will top up the recipient and if the recipient is not currently receiving any support, the amount dispensed will top him up accordingly with a full compliant support no matter what country he is in and no matter where he is in the world, regardless of what they are currently receiving.   Everyone will get this card and it will be activated with confirmation of your social insurance card.  A national solution would just pay the citizen directly and we can see  how quickly we  can get that done; as in today and will pay an emergency pro rata weekly $25,000.00 per year income support to all citizens not currently receiving more than $59,999.00 in support 


We could also use the World Bank method but do this nationally, using a computer that confirms current support received, the payment schedule as weekly or bi weekly and then pay a top up amount to make up the difference, if any, between the currant amount received  as support in your state or province and the new covid 911 anti recession amount of no less than $65,000.00 per year.  The cards are available at the post office.  You need to confirm your SIN number online when activating the card and load a copy of your passport to confirm activation. You need to also confirm your health card details.   You can also set up a pin number for the card online for use at the bank machine.  When you input the card at the machines, it will operate like any other card.  You can also set up a direct payment into one of your bank accounts from your World Bank bi weekly allotment. The card works any where in the world.  If you ask for a direct payment of $1100.00 per payment to go into your account, then the remainder is available on the card.  There is a statement available.   It should take Arf a mo' in terms of time.  "Arf a 'mo'" means "In just a minute." If you are getting $48,000.00 per year or $(_________) per year now paid(_pro rata basis______), daily, weekly or bi weekly in your area, then the machine will work out an amount to pay you on that payment schedule to get you up to $65,000.00 per year.    

So, if you are getting $48000.00 paid bi weekly, then the machine will pay you the difference so you are receiving $65,000.00 per annum.  The answer here will be 2500.00-1846.15=$653.84 to be paid out bi weekly on the card. 

If you are receiving Vermont $60,000.00 per year paid bi weekly at $2307.69. then the card will pay you $192.30 bi weekly to get you up to the $65,000.00 per year.   

If you are not getting any support, then it will pay $65,000.00 per year but paid weekly so that is $65,000.00/52 and that equals $1250.00 per week.

The English can do a card like this also, getting their people up to the desired number which is about &39156.62 pounds per year at CAD 1.66 dollars to the pound based on $65000.00 per year benefit.  

I am not doing this for authority but because I am tired of feeling disgusted in North America with all of this North American self defeat going on with these double minded Germans and Ukrainians who got the look but they do not have the will to solve the needle in the hay stack or the needle puncturing their gut.  IDIAL

You decide what happens next. This is not really about two brothers fighting. I am not involved except as a citizen who just wants to be uninvolved and busy writing a coffee shop book with coffee shop photos from around North America; and I will be  on my way. 

////

 He was also disqualified for allegedly buying other candidates out of the race or intimidating them out of the race.    So, there is a law for Saul Biden that involves absolute authority and there is a law for the rest of us. I don't know if this is accurate.  There is only one law that binds us all and maybe if you have friends who know how to racketeer with you and move the treasury like its your vesper scooter, then maybe you navigate the law. This is what is going on.   But, if this is what happened, then maybe we can at least be sure the economy works as it should with an income support for every citizen  in North America and actually the world before Saul Biden  leaves and then we thank him in this last round of Covid 911 exercise of authority because maybe that is what absolute authority is good for when the politician does not understand  what the UDHR Art. 25 was trying to say and maybe you see how he was just a peanut farmer but was convincing with his peanuts but he is not really an economist but you want him to be able to understand  the economy and why income support is critical for the whole entire continent as a means of requisite consumer stimulus and moneyed consumer demand for robotically made goods to also answer really the job famines caused by automation. In final conclusion, the anthropology here dating back to 1771 seems to have said that if this is what democracy is, he would take opportunity to rule the people and no longer be ruled by the rules or any king. The American revolution was an opportunity for interruption and interception of authority.  He asked for the Kings favor and then said he would rule the king; not that the king would rule them and that he would rule the people; not the constitution. It seems this wild and crazy guy also hunted the last real New England educated or European educated Tudor Barristers; black and white.    He also said God would give him more time to do it and see his progeny as the President more than once with the treasury being the real oval office as he said like his cousin Christopher Pirate Columbus, anything can be bought and how can you authority and buy the servants of the King at Birchingham or at Lords if you do not have the US treasury to buy him and still pretend to seek his favor to steal the result of any election? Its your game. You made the rules and if its a game, so be it but you did not provide each citizen an income support.  

By the way, buying a gold coat from Kors or the GAP or Banana Republic does not mean that you have offered to be an R2D2 or any gold robot in a Star Wars movie. That is crazy if you would think it. That is something a playful cave man would do to someone. 

////

Otherwise, we need to see the constitution work and also the law without this kind of evil going on when maybe a sick chick could call the police in her absolute authority and pretend people are harassing her at McDonalds and she only wants to see if she is a Queen where she would hope the police will just believe what she says  and there is no evidence of anyone harassing her and she should go to jail for mischief.  What if the milk shake guy lies to help her because she offers sex? The "I have more friendship in the Democratic Deep State government than Donald" Coup is over.      

Is there evidence of hush money?   

Nonetheless, Chief Justice Marshall recognized that while the President could be subject to a criminal subpoena, the President could still withhold information from disclosure based on executive privilege.11 In the two centuries since the Burr trial, the Executive Branch’s practices12 and Supreme Court rulings unequivocally and emphatically endorsed Chief Justice Marshall’s position that the President was subject to federal criminal process.13 In its 2020 opinion in Trump v. Vance, the Court extended this precedent to state criminal proceedings, concluding that the President was not absolutely immune from state criminal subpoenas.14


ArtII.S3.4.6 Prosecutorial and Grand Jury Access to Presidential Information

Article II, Section 3:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Recognizing that the public has a right to every man’s evidence, the Supreme Court has held that the President may be required to testify or produce documents in criminal proceedings when required by the courts.1 This principle dates to the earliest days of the Republic, when Chief Justice John Marshall presided as the Circuit Justice for Virginia over the infamous treason trial of Aaron Burr. In that case, Chief Justice Marshall concluded that President Thomas Jefferson could be subject to a subpoena to provide a document relevant to the trial.2 Specifically, he declared that, in contrast to common law privileges afforded the King of England, the President was not exempt from the general provisions of the constitution, like the Sixth Amendment, that provide for compulsory process for the defense.3 Nonetheless, Chief Justice Marshall recognized that while the President could be subject to a criminal subpoena, the President could still withhold specific information from disclosure based on the existence of a privilege.4 In the two centuries since the Burr trial, historical practice by the Executive Branch5 and Supreme Court rulings unequivocally and emphatically endorsed Chief Justice Marshall’s position that the President was subject to federal criminal process.6 In 2020, the Court extended the precedent developed in federal criminal proceedings to state criminal proceeding in Trump v. Vance, concluding that the President was not absolutely immune from state criminal subpoenas.7

While the President is subject to criminal process, the question remains as to the limits on that process. The Court has recognized several constraints on the ability of a prosecutor to obtain evidence from the President through the use of a criminal subpoena.8 First, like any citizen, the President can challenge a particular subpoena on the grounds that it was issued in bad faith or was unduly broad.9 Second, the timing and scope of criminal discovery must be informed by the nature of the office of the President—for example, granting deference in scheduling proceedings to avoid significant interference with the President’s official responsibilities.10 Third, the President can raise subpoena-specific constitutional challenges, arguing that compliance with a particular subpoena would significantly interfere with his efforts to carry out an official duty.11 As the Court first recognized in United States v. Nixon, one particularly notable constitutionally based challenge that a President can lodge against a criminal subpoena is a claim of executive privilege in certain presidential communications.12

In Nixon,13 the Court confirmed several fundamental principles of the privilege protecting presidential communications.14 First, Nixon recognized an implied constitutional privilege protecting presidential communications.15 The Court stated that the privilege of confidentiality of presidential communications is fundamental to the operation of Government and inextricably rooted in the separation of powers and the supremacy of each branch within its own assigned area of constitutional duties.16 The Court held that the Communications Privilege, however, must not be expansively construed as it, like other privileges, is in derogation of the search for truth.17

Second, the Court explicitly reaffirmed its role as the ultimate interpreter of the Constitution and the privileges emanating from it, noting that it was the Court, and not the President, that must have the final say on the Communications Privilege.18

Third, the Court held that the underlying justification for the Communications Privilege related to the public interest in the integrity of presidential decisionmaking.19 Human experience, the Court reasoned, teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.20 The Court added that there is a

public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking. 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.21

As such, the Court held that [t]he President’s need for complete candor and objectivity from advisers calls for great deference from the courts and justified a presumptive privilege for Presidential communications made in the exercise of Art. II powers.22

Fourth, the Court emphasized that the implied constitutional Privilege was not absolute or unqualified, at least not when founded upon a generalized need for confidentiality in nonmilitary and nondiplomatic discussions.23 Instead, when the Communications Privilege is invoked in response to a judicial subpoena, a confrontation with other values arise[s] requiring courts to resolve those competing interests in a manner that preserves the essential functions of each branch.24 The President’s interest, therefore, would need to be balanced against the fundamental and comprehensive need to develop all relevant facts and evidence in a criminal case.25 In weighing these interests, the Court held the following:

We cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution. On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic functions of the courts.

As a result, the Communications Privilege, when based only on a generalized interest in confidentiality, cannot prevail over the fundamental demands of . . . the fair administration of justice and therefore must yield to the demonstrated, specific need for evidence in a pending criminal trial.26

Finally, Nixon approved a staged decisional structure. If a President determines that compliance with a subpoena would be injurious to the public interest he may properly . . . invoke a claim of privilege.27 Such an invocation creates presumptive protections for the subpoenaed material. As a result of these initial protections, a court may only order in camera review when the party has made a sufficient showing to rebut the presumption.28 Once the presumptively privileged material is reviewed in camera, a court may then direct the further disclosure of all relevant and admissible information.29

The Nixon opinion made two additional points worth noting. First, the Court repeatedly suggested that its analysis may have been different if instead of a generalized interest in the confidentiality of his communications, the President had asserted a claim of military or diplomatic secrets.30 As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities.31 Second, the Court explicitly disclaimed any attempt to assess the application of the Communications Privilege in a congressional investigation: we are not here concerned with the balance between the President’s generalized interest in confidentiality . . . and congressional demands for information.32

Footnotes

  1.  Jump to essay-1See Trump v. Vance, No. 19-635, slip op. (U.S. July 9, 2020).
  2.  Jump to essay-2United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807) (No. 14,692D).
  3.  Jump to essay-3See id. (observing that while the King is born to power and can do no wrong, the President, by contrast is of the people and subject to the law).
  4.  Jump to essay-4United States v. Burr, 25 F. Cas. 187, 192 (C.C.D. Va. 1807) (No. 14,694).
  5.  Jump to essay-5Vance, No. 19-635, slip op. (discussing historical practices of Presidents Monroe, Grant, Ford, Carter, and Clinton).
  6.  Jump to essay-6Clinton v. Jones, 520 U.S. 681, 704 (1997) (citing United States v. Nixon, 418 U.S. 683, 706 (1974)). In rejecting separation of powers challenges to claims that the President is immune from federal criminal process, the Court rejected the argument that criminal subpoenas rise to the level of constitutionally forbidden impairment of the Executive’s ability to perform its constitutionally mandated functions. Id. at 702–03.
  7.  Jump to essay-7See Vance, No. 19-635, slip op. (rejecting the categorical argument that state criminal subpoenas would unduly distract the President, impose a stigma on the presidency, or result in harassment by state prosecutors). The Vance Court also rejected the argument that a state prosecutor should have to satisfy a heightened standard of need before seeking a sitting President’s records, absent any constitutional privileges. Id . Importantly, in Vance, the state prosecutor was seeking private presidential records, and no claim of executive privilege was at stake. Id. (Kavanaugh, J., concurring in the judgment). The Court refused to extend the heightened-need standard established in Nixon to private records, discussed infra, reasoning that: (1) Burr and its progeny foreclosed that argument; (2) the heightened-need standard was unnecessary to allow the President to fulfill his Article II functions; and (3) the public interest in fair and effective law enforcement favors comprehensive access to evidence. Id. (majority opinion).
  8.  Jump to essay-8See id.
  9.  Jump to essay-9Id.
  10.  Jump to essay-10Id.
  11.  Jump to essay-11Id.
  12.  Jump to essay-12418 U.S. 683, 708 (1974)
  13.  Jump to essay-13United States v. Nixon, 418 U.S. 683 (1974). The Nixon opinion, which was before the Court on expedited direct appeal from the district court decision in Mitchell, was issued with some urgency. Noting the public importance of the issues presented and the need for their prompt resolution, the Court issued its opinion only sixteen days after oral argument.
  14.  Jump to essay-14Id. at 706 ([N]either 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.).
  15.  Jump to essay-15Id. at 711 (Nowhere in the Constitution . . . is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President’s powers, it is constitutionally based.).
  16.  Jump to essay-16Id. at 708, 705.
  17.  Jump to essay-17Id. at 709–10 (These and other interests are recognized in law by privileges against forced disclosure, established in the Constitution, by statute, or at common law. Whatever their origins, these exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.).
  18.  Jump to essay-18Id. at 704.
  19.  Jump to essay-19Nixon, 418 U.S. at 705.
  20.  Jump to essay-20Id. at 705.
  21.  Jump to essay-21Id. at 708.
  22.  Jump to essay-22Id. at 706.
  23.  Jump to essay-23Id. at 707.
  24.  Jump to essay-24Id.
  25.  Jump to essay-25Nixon, 418 U.S. at 711–12 (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.).
  26.  Jump to essay-26Id. at 713.
  27.  Jump to essay-27Id.
  28.  Jump to essay-28Id. at 714.
  29.  Jump to essay-29During that review (at least when the Privilege is asserted in response to a criminal trial subpoena) a court must distinguish between material that is both probably admissible in evidence and relevant and that which is not. Id. at 714. The latter material must be restored to its privileged status and accorded that high degree of respect due the President of the United States, while the former would be provided to the requesting party. Id. at 714–16.
  30.  Jump to essay-30Id. at 710.
  31.  Jump to essay-31Id. at 710.
  32.  Jump to essay-32Id. at 712 n.19. Shortly after the Supreme Court’s opinion in Nixon, the House Judiciary Committee voted to recommend articles of impeachment against President Nixon for obstruction of justice, abuse of power, and contempt of Congress for his refusal to comply with congressional subpoenas. The contempt of Congress allegation was based on the President’s failure to comply with subpoenas issued by the House Judiciary committee as part of its impeachment investigation. H.R. Rep. No. 93–1305 at 4 (1974). On August 9, 1974, before the full House considered the articles of impeachment but after determining that he had lost support in Congress and would not survive impeachment, President Nixon resigned.






ArtII.S3.5.1 Presidential Immunity to Suits and Official Conduct

Article II, Section 3:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

In its 1867 decision Mississippi v. Johnson, the Supreme Court established that the President is largely beyond the reach of the judiciary by holding that it could not direct President Andrew Johnson in how he exercised his purely executive and political powers.1 The Court stated, it had no jurisdiction . . . to enjoin the President in the performance of his official duties.2

In subsequent decisions, however, the Court made clear that Johnson does not stand for the proposition that the President is immune from judicial process. For example, in United States v. Nixon,3 the Court held that President Richard Nixon was amenable to a subpoena to produce evidence for use in a federal criminal case. There, the President had argued that he was immune to judicial process, claiming that the independence of the Executive Branch within its own sphere insulates a President from a judicial subpoena in an ongoing criminal prosecution.4 The Supreme Court unanimously disagreed, holding that 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.5 The Court noted that the constitutional duty of courts to do justice in criminal prosecutions was counterbalanced by the claim of presidential immunity. To accept the President’s argument, the Court further reasoned, would undermine the separation of powers that was at the core of a workable government as well as gravely impair the role of the courts under Art. III.6

Throughout the Watergate investigation, it was unclear whether the President could be subject to criminal prosecution prior to being convicted upon impeachment.7 The Court, however, resolved that courts may require the President to testify or produce documents in criminal proceedings.8 This principle dates to the earliest days of the Republic, when Chief Justice John Marshall presided as the Circuit Justice for Virginia over the treason trial of Aaron Burr. In that case, Chief Justice Marshall concluded that President Thomas Jefferson could be subject to a subpoena to provide a document relevant to the trial.9 Specifically, Chief Justice Marshall declared that, in contrast to common law privileges afforded the King of England, the President was not exempt from the general provisions of the constitution, like the Sixth Amendment, which provides the defense compulsory process.10

Nonetheless, Chief Justice Marshall recognized that while the President could be subject to a criminal subpoena, the President could still withhold information from disclosure based on executive privilege.11 In the two centuries since the Burr trial, the Executive Branch’s practices12 and Supreme Court rulings unequivocally and emphatically endorsed Chief Justice Marshall’s position that the President was subject to federal criminal process.13 In its 2020 opinion in Trump v. Vance, the Court extended this precedent to state criminal proceedings, concluding that the President was not absolutely immune from state criminal subpoenas.14

Finally, with respect to civil liability, the Court held in Nixon v. Fitzgerald that the President is absolutely immune in actions for civil damages for all acts within the outer perimeter of his official duties.15 The Court’s close decision was premised on the President’s unique position in the constitutional scheme, that is, the Court conducted a kind of ‘public policy’ analysis of the policies and principles that may be considered implicit in the nature of the President’s office in a system structured to achieve effective government under a constitutionally mandated separation of powers.16 Although the Constitution expressly afforded Members of Congress immunity in matters arising from speech or debate and was silent on presidential immunity, the Court nonetheless considered immunity to be a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.17

While the Court relied, in part, upon its practice of finding immunity for officers, such as judges, for whom the Constitution is silent, but for which a long common-law history exists, and in part upon historical evidence, which it admitted was fragmentary and ambiguous,18 the Court focused on the fact that the President is different from all other executive officials. The President is charged with a long list of supervisory and policy responsibilities of utmost discretion and sensitivity,19 and diversion of his energies by concerns with private lawsuits would raise unique risks to the effective functioning of government.20 Moreover, the presidential privilege is rooted in the separation of powers doctrine, counseling courts to tread carefully before intruding. While some interests are important enough to require judicial action, the Court reasoned that merely private suit[s] for damages based on a President’s official acts do not serve this broad public interest necessitating the courts to act.21 Finally, qualified immunity would not adequately protect the President, because judicial inquiry into a functional analysis of his actions would bring with it the evil immunity it was to prevent; absolute immunity was required.22

Footnotes

  1.  Jump to essay-171 U.S. (4 Wall.) 475 (1867). The Court declined to express an opinion on whether, in any case, the President of the United States may be required, by the process of this court, to perform a purely ministerial act under a positive law, or may be held amenable, in any case, otherwise than by impeachment for crime. 71 U.S. at 498. See Franklin v. Massachusetts, 505 U.S. 788, 825–28 (1992) (Scalia, J., concurring). In NTEU v. Nixon, 492 F.2d 587 (D.C. Cir. 1974), the court held that it could issue a writ of mandamus to compel the President to perform a ministerial act, although it said that if any other officer were available to whom the writ could run, it should be applied to him.
  2.  Jump to essay-2Johnson, 71 U.S. at 501.
  3.  Jump to essay-3United States v. Nixon, 418 U.S. 683 (1974)
  4.  Jump to essay-4418 U.S. at 706.
  5.  Jump to essay-5Id.
  6.  Jump to essay-6Id. at 706–07. The lower courts considered the issue more fully. In re Grand Jury Subpoena to Richard M. Nixon, 360 F. Supp. 1, 6–10 (D.D.C. 1973) (Judge Sirica), aff’d sub nom., Nixon v. Sirica, 487 F.2d 700, 708–712 (D.C. Cir. 1973) (en banc) (refusing to find President immune from process). Assessments of the subpoena of President Jefferson in the Burr trial have conflicted. United States v. Burr, 25 F. Cas. 187 (No. 14694) (C.C.D.Va. 1807). For the history, see Freund, Foreword: On Presidential Privilege, The Supreme Court, 1973 Term, 88 Harv. L. Rev. 13, 23–30 (1974).
  7.  Jump to essay-7The Impeachment Clause, Article I, § 3, cl. 7, provides that a party convicted upon impeachment shall nonetheless be liable for criminal proceedings. Gouveneur Morris in the Convention and Alexander Hamilton in the Federalist Papers asserted that a criminal trial would follow a successful impeachment. See 2 The Records of the Federal Convention of 1787, at 500 (Max Farrand ed., 1937); The Federalist Nos. 65 & 69.
  8.  Jump to essay-8See Trump v. Vance, No. 19-635, slip op. (July 9, 2020) (recognizing that the public has a right to every man’s evidence).
  9.  Jump to essay-9See United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807) (No. 14,692D).
  10.  Jump to essay-10See id. (observing that while the King is born to power and can do no wrong, the President, by contrast, is of the people and subject to the law).
  11.  Jump to essay-11See United States v. Burr, 25 F. Cas. 187, 192 (C.C.D. Va. 1807) (No. 14,694).
  12.  Jump to essay-12See Vance, No. 19-635, slip op. at 7–9 (discussing historical practices of Presidents James Monroe, Ulysses S. Grant, Gerald Ford, Jimmy Carter, and William Clinton).
  13.  Jump to essay-13Clinton v. Jones, 520 U.S. 681, 704 (1997) (citing United States v. Nixon, 418 U.S. 683, 706 (1974)). In rejecting separation of powers challenges to claims that the President is immune from federal criminal process, the Court rejected the argument that criminal subpoenas rise to the level of constitutionally forbidden impairment of the Executive’s ability to perform its constitutionally mandated functions. Id. at 702–03.
  14.  Jump to essay-14See Vance, No. 19-635, slip op. at 12–15 (rejecting the categorical argument that state criminal subpoenas would unduly distract the President, impose a stigma on the presidency, or result in harassment by state prosecutors). The Vance Court also rejected the argument that a state prosecutor should satisfy a heightened standard of need when seeking a sitting President’s records. Id. at 15–16. More important, in Vance, the state prosecutor sought private presidential records, and executive privilege was not at issue. Id. (Kavanaugh, J., concurring in the judgment). The Court refused to extend the heightened-need standard established in Nixon to private records, discussed infra, reasoning that: (1) Burr and its progeny foreclosed that argument; (2) the heightened-need standard was unnecessary to allow the President to fulfill his Article II functions; and (3) the public interest in fair and effective law enforcement favors comprehensive access to evidence. Id. (majority opinion).
  15.  Jump to essay-15Nixon v. Fitzgerald, 457 U.S. 731 (1982)
  16.  Jump to essay-16Id. at 748.
  17.  Jump to essay-17Id. at 749.
  18.  Jump to essay-18Id. at 750–52 n.31.
  19.  Jump to essay-19Id. at 750.
  20.  Jump to essay-20Id. at 751.
  21.  Jump to essay-21Id. at 754.
  22.  Jump to essay-22Id. at 755–57. Justices Byron White, William Brennan, Thurgood Marshall, and Henry Blackmun dissented. The Court reserved decision on whether Congress could expressly create a damages action against the President and abrogate immunity, id. at 748–49 n.27, thus appearing to disclaim that the Constitution mandated the decision; Chief Justice Warren Burger disagreed with the implication of this footnote, id. at 763–64 n.7 (concurring opinion), and the dissenters noted they agreed with the Chief Justice on this point. Id. at 770 & n.4.





ArtII.S3.4.9 Former Presidents and Communications Privilege

Article II, Section 3:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

In Nixon II, the Supreme Court determined that the Communications Privilege continues to protect presidential communications after the conclusion of the Administration within which the communication occurred and may be asserted by the former President.1 As described above, the Court found that a former President may legitimately assert the Communications Privilege to prevent disclosure of his official records after he has left office.2 The Court reasoned that the confidentiality necessary to ensure the free exchange of ideas between the President and his advisers while the President is in office

cannot be measured by the few months or years between the submission of the information and the end of the President’s tenure; the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic. Therefore the privilege survives the individual President’s tenure.3

The Court’s determination appears to have rested on the reasoning that the general purpose of the Communications Privilege—ensuring the provision of frank advice to the President—could be threatened or undermined no matter when the disclosure of the covered communications occurs. Nixon II distinguished former Presidents from incumbents in three important ways. First, the Court explicitly stated that to the extent that the privilege serves as a shield for executive officials against burdensome requests for information which might interfere with the proper performance of their duties, a former President is in less need of it than an incumbent.4 Second, the Court concluded that the expectation of the confidentiality of executive communications is subject to erosion over time after an administration leaves office.5 Thus, the strength of a former President’s Communications Privilege claim appears to dwindle as time passes.

Third and perhaps most importantly, the Court determined that because only the sitting President is charged with performance of executive duty under the Constitution, he is in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.6 In Nixon II, the fact that President Carte—the sitting President at the time—did not support former President Nixon’s privilege claim detract[ed] from the weight of Nixon’s assertion.7 In the Court’s view, it is the incumbent President who is better situated to make determinations about the need for executive confidentiality, because it is the incumbent President who may suffer the harm that the Communications Privilege purports to protect against if privileged documents were disclosed (namely that current advisers would be dissuaded from giving the incumbent President candid advice).8 As a result, when the incumbent President does not support a former President’s privilege claim, the strength of the claim declines.

The importance of the incumbent’s concurrence to a privilege claim by a former President was recently reaffirmed in Trump v. Thompson.9 Thompson arose from the inquiry conducted by the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol (Select Committee). As part of its investigation, the Select Committee requested that the National Archives and Records Administration (NARA) produce relevant presidential records from the former Trump Administration pursuant to the Presidential Records Act (PRA).10 The request sought various categories of White House communications and documents created on or around January 6, 2021. Under the PRA, if any congressional committee requests a presidential record on a matter within its jurisdiction that is needed for the conduct of its business and that is not otherwise available, the National Archives shall make the record available.11 However, consistent with principles established in Nixon and Nixon II, the PRA also preserves the right of both current and former Presidents to assert privilege claims by providing that disclosure by NARA is subject to any rights, defenses, or privileges which the United States or any agency or person may invoke.12

Shortly thereafter, President Joseph Biden determined that under the unique and extraordinary circumstances and because of Congress’s compelling need to understand the horrific events of January 6, asserting executive privilege over the requested documents would not be in the best interests of the United States.13 Former President Trump disagreed and notified the Archivist that he was asserting the Communications Privilege. After President Biden clarified that he would not uphold the former President’s assertion of Privilege, former President Trump filed suit in federal district court to block NARA from disclosing privileged documents to the Select Committee.14

The D.C. District Court in Thompson viewed the case as a dispute between a former and incumbent President.15 Citing to Nixon II, the court stated that because the incumbent President is best suited to identify and determine the best interests of the Executive Branch, former President Trump’s Privilege claim was outweighed by President Biden’s decision not to uphold the Privilege.16 Moreover, the court reasoned that to side with the former President would not only second guess the sitting President’s judgment, but also the Legislative Branch’s judgment—for both President Biden and the House agreed that the requested documents should be disclosed.17

The D.C. Circuit affirmed the district court decision on appeal. The court acknowledged, with reference to Nixon II, that there was no question that former President Trump could assert the Communications Privilege and that the Communications Privilege was of constitutional stature.18 Nevertheless, the court held that a rare and formidable alignment of [three] factors supported disclosure of the documents to the Committee and outweighed the former President’s interest in confidentiality.19

First, the court stated that President Biden’s determination that it was neither in the Executive Branch’s nor the public’s interest to assert Privilege over the requested documents carries immense weight in overcoming the former President’s claim.20 Consistent with previous case law, the court viewed President Biden as the principal holder and keeper of executive privilege and the judiciary as ill equipped to . . . second guess the expert judgment of the sitting President.21

Second, the House had a uniquely weighty interest in investigating the causes and circumstances of the January 6 attack on the U.S. Capitol.22 Indeed, the court noted that having presented a sound factual predicate for the requested documents, there would seem to be few, if any, more imperative interests squarely within Congress’s wheelhouse than ensuring the safe and uninterrupted conduct of its constitutionally assigned business.23

Third, and weighing still more heavily against former President Trump, was the fact that the judgment of the Political Branches is unified as to these particular documents.24 The court was unwilling to needlessly disturb ‘the compromises and working arrangements that the Congress and the President had already reached.25

In light of these three factors, the D.C. Circuit held that the profound interests in disclosure advanced by President Biden and the January 6th Committee far exceed [former President Trump’s] generalized concerns for Executive Branch confidentiality.26 That holding was given added significance by the court’s determination that it would have been compelled to reach that conclusion under any of the tests advocated by former President Trump, including the demonstrated, specific need standard from Nixon or the demonstrably critical standard from Senate Select.27 As such, it appears the Select Committee would have been able to overcome the Communications Privilege in this circumstance even if President Biden had supported former President Trump’s Privilege claim.

The Supreme Court picked up on this point in denying former President Trump’s petition to stay the D.C. Circuit decision.28 In interpreting the opinion below, the Supreme Court—in an unsigned order—reasoned that Mr. Trump’s status as a former President [ ] made no difference to the court’s decision since the D.C. Circuit had concluded that President Trump’s claims would have failed even if he were an incumbent.29 Because the former President’s assertion of privilege would have been unsuccessful either way, the Court declared the D.C. Circuit’s discussion of when executive privilege claims could properly be asserted by former Presidents to be nonbinding dictum.30

Footnotes

  1.  Jump to essay-1Nixon II, 433 U.S. at 446–49.
  2.  Jump to essay-2Id. at 449.
  3.  Jump to essay-3Id. (citations omitted).
  4.  Jump to essay-4Id. at 448.
  5.  Jump to essay-5Id. at 451.
  6.  Jump to essay-6Id. at 449.
  7.  Jump to essay-7Nixon II, 433 U.S. at 449.
  8.  Jump to essay-8Id.
  9.  Jump to essay-9Trump v. Thompson, 20 F.4th 10 (D.C. Cir. 2021), cert. denied, No. 21A272, slip op. (U.S. Jan. 20, 2022).
  10.  Jump to essay-10Id. at 16.
  11.  Jump to essay-1144 U.S.C. § 2205(2)(C).
  12.  Jump to essay-12Id. at § 2205(2).
  13.  Jump to essay-13Thompson, 20 F.4th at 20–21.
  14.  Jump to essay-14Id. at 21–22.
  15.  Jump to essay-15Trump v. Thompson, Civil Action No. 21-cv-2769 (TSC), 2021 U.S. Dist. LEXIS 216812, at *26 (D.D.C. Nov. 9, 2021).
  16.  Jump to essay-16Id. at *29.
  17.  Jump to essay-17Id. at *27–29.
  18.  Jump to essay-18Thompson, 20 F. 4th at 32.
  19.  Jump to essay-19Id. at 33.
  20.  Jump to essay-20Id.
  21.  Jump to essay-21Id. at 35.
  22.  Jump to essay-22Id.
  23.  Jump to essay-23Id. at 35–36.
  24.  Jump to essay-24Thompson, 20 F.4th at 37.
  25.  Jump to essay-25Id. at 38 (quoting Trump v. Mazars USA, LLP, No. 19-715, slip op. (U.S. May 12, 2020)).
  26.  Jump to essay-26Id. at 33.
  27.  Jump to essay-27Id. at 41 (The legislative interest at stake passes muster under any of the tests pressed by former President Trump.).
  28.  Jump to essay-28Trump v. Thompson, No. 21A272, slip op. (U.S. Jan. 20, 2022). The Supreme Court later denied certiorari. No. 21A272, slip op. (U.S. Jan. 20, 2022).
  29.  Jump to essay-29Id. Justice Clarence Thomas would have granted the former President’s application. Justice Brett Kavanaugh authored a concurrence to clarify his position that [a] former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his Presidency. Id. (Kavanaugh, J., concurring) Once invoked, it appears to be Justice Kavanaugh’s view that the tests from Nixon and Senate Select may apply to a former President’s privilege claim as they do to a current President’s privilege claim. Id. at 681.
  30.  Jump to essay-30Id. at 680.


ArtII.S3.4.10 Deliberative Process and Law Enforcement Privileges

Article II, Section 3:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Of the various executive privileges, the Deliberative Process Privilege is the one most frequently asserted.1 The purpose underlying the Privilege is to protect the 'quality of agency decisions’ by allowing government officials freedom to debate alternative approaches in private.2 But the Deliberative Process Privilege applies only to those documents and communications that are predecisional, meaning they are created prior to the agency reaching its final decision, and deliberative, meaning they relate to the thought process of Executive officials and are not purely factual.3 The Privilege does not protect entire documents. Rather, the Executive Branch must disclose non-privileged factual information that can be reasonably segregated from privileged information in the requested documents. And like the other executive privileges, the Deliberative Process Privilege is overcome by an adequate showing of need.4

The idea of the Deliberative Process Privilege was developed under the Freedom of Information Act (FOIA) to provide limited protection for communications and documents evidencing the predecisional considerations of agency officials.5 Over time, the Executive Branch has melded this deliberative process idea with the recognized confidentiality interest in the President’s communications with close advisers, such that the privilege would extend to any policy deliberations or communications within the Executive Branch in which the President may have an interest.

The result has been a presumption by the Executive, though regularly contested by Congress, that its predecisional deliberations are beyond the scope of congressional demand. For instance, Attorney General William French Smith advised President Ronald Reagan that Congress will have a legitimate need to know the preliminary positions taken by Executive Branch officials during internal deliberations only in the rarest of circumstances.6 According to this view, the need for the Executive to prevent disclosure of its deliberations is at its apex when Congress attempts to discover information about ongoing policymaking within the Executive Branch. In that case, the Executive has argued, the deliberative process exemption serves as an important boundary marking the separation of powers. When congressional oversight is used as a means of participating directly in an ongoing process of decisionmaking within the Executive Branch, it oversteps the bounds of the proper legislative function.7

The legal justifications asserted by the Barack Obama Administration for withholding documents from Congress during a House probe into Operation Fast and Furious appear to reflect a heavy reliance on the Deliberative Process Privilege. In a letter to the President asking him to invoke executive privilege over the subpoenaed documents, Attorney General Eric Holder noted that Presidents have repeatedly asserted executive privilege to protect confidential Executive Branch deliberative materials from congressional subpoena.8 The Attorney General went on to argue that [i]t is well established that ‘the doctrine of executive privilege . . . encompasses Executive Branch deliberative communications.’9 The dispute ultimately reached the courts, and although the litigation was eventually settled, a federal district court initially held that after balancing the competing interests at stake, in this instance the Deliberative Process Privilege must yield to Congress’s legitimate need for the documents.10

Similar to Deliberative Process Privilege, the Law Enforcement Privilege operates to protect information, the disclosure of which by the Executive Branch would have a chilling effect on conducting the candid and independent analysis essential to just and effective law enforcement.11

Footnotes

  1.  Jump to essay-1Given its broad scope, the Deliberative Process Privilege is the most frequent form of executive privilege raised. In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997).
  2.  Jump to essay-2Id. at 737 (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975)).
  3.  Jump to essay-3See Assassination Archives & Research Ctr. v. CIA, No. 18–5280, 2020 U.S. App. LEXIS 40001, 5–6 (D.C. Cir. Dec. 21, 2020) (The privilege covers information that is both ‘predecisional’ and ‘deliberative.’ Documents are predecisional if they were ‘generated before the adoption of an agency policy,’ and deliberative if they ‘reflect[ ] the give-and-take of the consultative process.’) (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).
  4.  Jump to essay-4See Comm. on Oversight & Gov’t Reform v. Lynch, 156 F. Supp. 3d 101, 112–14 (D.D.C. 2016) (finding that a congressional committee’s need for deliberative materials outweighed the Executive Branch’s interest in confidentiality).
  5.  Jump to essay-5See EPA v. Mink, 410 U.S. 73, 85–90 (1973).
  6.  Jump to essay-6Letter from Attorney General William French Smith to President Reagan, October 31, 1981, reprinted in 5 Op. O.L.C. 27, 31 (1981) [hereinafter Smith Letter/Watt]; accord Memorandum to General Counsels’ Consultative Group Re: Congressional Requests for Confidential Executive Branch Information, 13 Op. O.L.C. 153, 192 (1989) (Congress will seldom have any legitimate legislative interest in knowing the precise predecisional positions and statements of particular Executive Branch officials.) [hereinafter Barr Memo]; Letter from Assistant Attorney General Robert Rabkin, Office of Legislative Affairs, DOJ, to Honorable John Linder, Chairman House Subcommittee on Rules and Organization of the House, Committee on Rules, June 27, 2000 at 5–6 ([T]he Department has a broad confidentiality interest in matters that reflect its internal deliberative process. In particular, we have sought to ensure that all law enforcement and litigation decisions are products of open, frank, and independent assessments of the law and facts—uninhibited by political and improper influences that may be present outside the department. We have long been concerned about the chilling effect that would ripple throughout government if prosecutors, policy advisors at all levels and line attorneys believed that their honest opinion—be it ‘good’ or ‘bad'—may be the topic of debate in Congressional hearings or floor debates. These include assessments of evidence and law, candid advice on strength and weaknesses of legal arguments, and recommendations to take or not to take legal action against individuals and corporate entities.); see also Smith Letter/Watt, supra, at 30 (congressional oversight interest will support a demand for predecisional, deliberative documents in the possession of the Executive Branch only in the most unusual circumstances).
  7.  Jump to essay-7Smith Letter/Watt at 30; see also Statement of Assistant Attorney General William H. Rehnquist, reprinted in Executive Privilege: The Withholding of Information by the Executive: Hearings Before the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary, 92nd Cong., 1st Sess. 424 (The notion that the advisors whom he has chosen should bear some sort of a hybrid responsibility to opinion makers outside of the government, which notion in practice would inevitably have the effect of diluting their responsibility to him, is entirely inconsistent with our tripartite systems of government. The President is entitled to undivided and faithful advice from his subordinates, just as Senators and Representatives are entitled to the same sort of advice from their legislative and administrative assistants, and judges to the same sort of advice from their law clerks.).
  8.  Jump to essay-8Letter to President Barack Obama from Eric Holder, Attorney General, June 19, 2012, at 3.
  9.  Jump to essay-9Id.
  10.  Jump to essay-10Comm. on Oversight & Gov’t Reform v. Lynch, 156 F. Supp. 3d 101, 112, 115 (D.D.C. 2016).
  11.  Jump to essay-11Letter from Assistant Attorney General Robert Rabkin, Office of Legislative Affairs, DOJ, to Honorable John Linder, Chairman House Subcommittee on Rules and Organization of the House, Committee on Rules, June 27, 2000 at 5–6 (The foregoing concerns apply with special force to Congressional requests for prosecution and declination memoranda and similar documents. These are extremely sensitive law enforcement materials. The Department’s attorneys are asked to render unbiased, professional judgments about the merits of potential criminal and civil law enforcement cases. If their deliberative documents were made subject to Congressional challenge and scrutiny, we would face a grave danger that they would be chilled from providing the candid and independent analysis essential to just and effective law enforcement or just as troubling, that our assessments of the strengths and weaknesses of evidence of the law, before they are presented in court. That may result in an unfair advantage to those who seek public funds and deprive the taxpayers of confidential representation enjoyed by other litigants.). See also Dep’t of Justice, Office of Legal Counsel, Protective Assertion of Executive Privilege Over Unredacted Mueller Report and Related Investigative Files, 43 Op. O.L.C. 374 (2019).


ArtII.S3.5.1 Presidential Immunity to Suits and Official Conduct

Article II, Section 3:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

In its 1867 decision Mississippi v. Johnson, the Supreme Court established that the President is largely beyond the reach of the judiciary by holding that it could not direct President Andrew Johnson in how he exercised his purely executive and political powers.1 The Court stated, it had no jurisdiction . . . to enjoin the President in the performance of his official duties.2

In subsequent decisions, however, the Court made clear that Johnson does not stand for the proposition that the President is immune from judicial process. For example, in United States v. Nixon,3 the Court held that President Richard Nixon was amenable to a subpoena to produce evidence for use in a federal criminal case. There, the President had argued that he was immune to judicial process, claiming that the independence of the Executive Branch within its own sphere insulates a President from a judicial subpoena in an ongoing criminal prosecution.4 The Supreme Court unanimously disagreed, holding that 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.5 The Court noted that the constitutional duty of courts to do justice in criminal prosecutions was counterbalanced by the claim of presidential immunity. To accept the President’s argument, the Court further reasoned, would undermine the separation of powers that was at the core of a workable government as well as gravely impair the role of the courts under Art. III.6

Throughout the Watergate investigation, it was unclear whether the President could be subject to criminal prosecution prior to being convicted upon impeachment.7 The Court, however, resolved that courts may require the President to testify or produce documents in criminal proceedings.8 This principle dates to the earliest days of the Republic, when Chief Justice John Marshall presided as the Circuit Justice for Virginia over the treason trial of Aaron Burr. In that case, Chief Justice Marshall concluded that President Thomas Jefferson could be subject to a subpoena to provide a document relevant to the trial.9 Specifically, Chief Justice Marshall declared that, in contrast to common law privileges afforded the King of England, the President was not exempt from the general provisions of the constitution, like the Sixth Amendment, which provides the defense compulsory process.10

Nonetheless, Chief Justice Marshall recognized that while the President could be subject to a criminal subpoena, the President could still withhold information from disclosure based on executive privilege.11 In the two centuries since the Burr trial, the Executive Branch’s practices12 and Supreme Court rulings unequivocally and emphatically endorsed Chief Justice Marshall’s position that the President was subject to federal criminal process.13 In its 2020 opinion in Trump v. Vance, the Court extended this precedent to state criminal proceedings, concluding that the President was not absolutely immune from state criminal subpoenas.14

Finally, with respect to civil liability, the Court held in Nixon v. Fitzgerald that the President is absolutely immune in actions for civil damages for all acts within the outer perimeter of his official duties.15 The Court’s close decision was premised on the President’s unique position in the constitutional scheme, that is, the Court conducted a kind of ‘public policy’ analysis of the policies and principles that may be considered implicit in the nature of the President’s office in a system structured to achieve effective government under a constitutionally mandated separation of powers.16 Although the Constitution expressly afforded Members of Congress immunity in matters arising from speech or debate and was silent on presidential immunity, the Court nonetheless considered immunity to be a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.17

While the Court relied, in part, upon its practice of finding immunity for officers, such as judges, for whom the Constitution is silent, but for which a long common-law history exists, and in part upon historical evidence, which it admitted was fragmentary and ambiguous,18 the Court focused on the fact that the President is different from all other executive officials. The President is charged with a long list of supervisory and policy responsibilities of utmost discretion and sensitivity,19 and diversion of his energies by concerns with private lawsuits would raise unique risks to the effective functioning of government.20 Moreover, the presidential privilege is rooted in the separation of powers doctrine, counseling courts to tread carefully before intruding. While some interests are important enough to require judicial action, the Court reasoned that merely private suit[s] for damages based on a President’s official acts do not serve this broad public interest necessitating the courts to act.21 Finally, qualified immunity would not adequately protect the President, because judicial inquiry into a functional analysis of his actions would bring with it the evil immunity it was to prevent; absolute immunity was required.22

Footnotes

  1.  Jump to essay-171 U.S. (4 Wall.) 475 (1867). The Court declined to express an opinion on whether, in any case, the President of the United States may be required, by the process of this court, to perform a purely ministerial act under a positive law, or may be held amenable, in any case, otherwise than by impeachment for crime. 71 U.S. at 498. See Franklin v. Massachusetts, 505 U.S. 788, 825–28 (1992) (Scalia, J., concurring). In NTEU v. Nixon, 492 F.2d 587 (D.C. Cir. 1974), the court held that it could issue a writ of mandamus to compel the President to perform a ministerial act, although it said that if any other officer were available to whom the writ could run, it should be applied to him.
  2.  Jump to essay-2Johnson, 71 U.S. at 501.
  3.  Jump to essay-3United States v. Nixon, 418 U.S. 683 (1974)
  4.  Jump to essay-4418 U.S. at 706.
  5.  Jump to essay-5Id.
  6.  Jump to essay-6Id. at 706–07. The lower courts considered the issue more fully. In re Grand Jury Subpoena to Richard M. Nixon, 360 F. Supp. 1, 6–10 (D.D.C. 1973) (Judge Sirica), aff’d sub nom., Nixon v. Sirica, 487 F.2d 700, 708–712 (D.C. Cir. 1973) (en banc) (refusing to find President immune from process). Assessments of the subpoena of President Jefferson in the Burr trial have conflicted. United States v. Burr, 25 F. Cas. 187 (No. 14694) (C.C.D.Va. 1807). For the history, see Freund, Foreword: On Presidential Privilege, The Supreme Court, 1973 Term, 88 Harv. L. Rev. 13, 23–30 (1974).
  7.  Jump to essay-7The Impeachment Clause, Article I, § 3, cl. 7, provides that a party convicted upon impeachment shall nonetheless be liable for criminal proceedings. Gouveneur Morris in the Convention and Alexander Hamilton in the Federalist Papers asserted that a criminal trial would follow a successful impeachment. See 2 The Records of the Federal Convention of 1787, at 500 (Max Farrand ed., 1937); The Federalist Nos. 65 & 69.
  8.  Jump to essay-8See Trump v. Vance, No. 19-635, slip op. (July 9, 2020) (recognizing that the public has a right to every man’s evidence).
  9.  Jump to essay-9See United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807) (No. 14,692D).
  10.  Jump to essay-10See id. (observing that while the King is born to power and can do no wrong, the President, by contrast, is of the people and subject to the law).
  11.  Jump to essay-11See United States v. Burr, 25 F. Cas. 187, 192 (C.C.D. Va. 1807) (No. 14,694).
  12.  Jump to essay-12See Vance, No. 19-635, slip op. at 7–9 (discussing historical practices of Presidents James Monroe, Ulysses S. Grant, Gerald Ford, Jimmy Carter, and William Clinton).
  13.  Jump to essay-13Clinton v. Jones, 520 U.S. 681, 704 (1997) (citing United States v. Nixon, 418 U.S. 683, 706 (1974)). In rejecting separation of powers challenges to claims that the President is immune from federal criminal process, the Court rejected the argument that criminal subpoenas rise to the level of constitutionally forbidden impairment of the Executive’s ability to perform its constitutionally mandated functions. Id. at 702–03.
  14.  Jump to essay-14See Vance, No. 19-635, slip op. at 12–15 (rejecting the categorical argument that state criminal subpoenas would unduly distract the President, impose a stigma on the presidency, or result in harassment by state prosecutors). The Vance Court also rejected the argument that a state prosecutor should satisfy a heightened standard of need when seeking a sitting President’s records. Id. at 15–16. More important, in Vance, the state prosecutor sought private presidential records, and executive privilege was not at issue. Id. (Kavanaugh, J., concurring in the judgment). The Court refused to extend the heightened-need standard established in Nixon to private records, discussed infra, reasoning that: (1) Burr and its progeny foreclosed that argument; (2) the heightened-need standard was unnecessary to allow the President to fulfill his Article II functions; and (3) the public interest in fair and effective law enforcement favors comprehensive access to evidence. Id. (majority opinion).
  15.  Jump to essay-15Nixon v. Fitzgerald, 457 U.S. 731 (1982)
  16.  Jump to essay-16Id. at 748.
  17.  Jump to essay-17Id. at 749.
  18.  Jump to essay-18Id. at 750–52 n.31.
  19.  Jump to essay-19Id. at 750.
  20.  Jump to essay-20Id. at 751.
  21.  Jump to essay-21Id. at 754.
  22.  Jump to essay-22Id. at 755–57. Justices Byron White, William Brennan, Thurgood Marshall, and Henry Blackmun dissented. The Court reserved decision on whether Congress could expressly create a damages action against the President and abrogate immunity, id. at 748–49 n.27, thus appearing to disclaim that the Constitution mandated the decision; Chief Justice Warren Burger disagreed with the implication of this footnote, id. at 763–64 n.7 (concurring opinion), and the dissenters noted they agreed with the Chief Justice on this point. Id. at 770 & n.4.

ArtII.S3.5.3 Qualified Immunity Doctrine

Article II, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

While the courts may be unable to compel the President to act or to prevent him from acting, his acts, when performed, are in proper cases subject to judicial review and disallowance. Typically, the subordinates through whom he acts may be sued, in a form of legal fiction, to enjoin the commission of acts which might lead to irreparable damage1 or to compel by writ of mandamus the performance of a duty definitely required by law.2 Such suits are usually brought in the United States District Court for the District of Columbia.3 In suits under the common law, a subordinate executive officer may be held personally liable in damages for any act done in excess of authority,4 although immunity exists for anything, even malicious wrongdoing, done in the course of his duties.5

Different rules prevail when such an official is sued for a constitutional tort for wrongs allegedly in violation of our basic charter,6 although the Court has hinted that in some sensitive areas officials acting in the outer perimeter of their duties may be accorded an absolute immunity from liability.7 Jurisdiction to reach such officers for acts for which they can be held responsible must be under the general federal question jurisdictional statute, which, as recently amended, requires no jurisdictional amount.8



ArtII.S3.4.9 Former Presidents and Communications Privilege

Article II, Section 3:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

In Nixon II, the Supreme Court determined that the Communications Privilege continues to protect presidential communications after the conclusion of the Administration within which the communication occurred and may be asserted by the former President.1 As described above, the Court found that a former President may legitimately assert the Communications Privilege to prevent disclosure of his official records after he has left office.2 The Court reasoned that the confidentiality necessary to ensure the free exchange of ideas between the President and his advisers while the President is in office

cannot be measured by the few months or years between the submission of the information and the end of the President’s tenure; the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic. Therefore the privilege survives the individual President’s tenure.3

The Court’s determination appears to have rested on the reasoning that the general purpose of the Communications Privilege—ensuring the provision of frank advice to the President—could be threatened or undermined no matter when the disclosure of the covered communications occurs. Nixon II distinguished former Presidents from incumbents in three important ways. First, the Court explicitly stated that to the extent that the privilege serves as a shield for executive officials against burdensome requests for information which might interfere with the proper performance of their duties, a former President is in less need of it than an incumbent.4 Second, the Court concluded that the expectation of the confidentiality of executive communications is subject to erosion over time after an administration leaves office.5 Thus, the strength of a former President’s Communications Privilege claim appears to dwindle as time passes.

Third and perhaps most importantly, the Court determined that because only the sitting President is charged with performance of executive duty under the Constitution, he is in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.6 In Nixon II, the fact that President Carte—the sitting President at the time—did not support former President Nixon’s privilege claim detract[ed] from the weight of Nixon’s assertion.7 In the Court’s view, it is the incumbent President who is better situated to make determinations about the need for executive confidentiality, because it is the incumbent President who may suffer the harm that the Communications Privilege purports to protect against if privileged documents were disclosed (namely that current advisers would be dissuaded from giving the incumbent President candid advice).8 As a result, when the incumbent President does not support a former President’s privilege claim, the strength of the claim declines.

The importance of the incumbent’s concurrence to a privilege claim by a former President was recently reaffirmed in Trump v. Thompson.9 Thompson arose from the inquiry conducted by the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol (Select Committee). As part of its investigation, the Select Committee requested that the National Archives and Records Administration (NARA) produce relevant presidential records from the former Trump Administration pursuant to the Presidential Records Act (PRA).10 The request sought various categories of White House communications and documents created on or around January 6, 2021. Under the PRA, if any congressional committee requests a presidential record on a matter within its jurisdiction that is needed for the conduct of its business and that is not otherwise available, the National Archives shall make the record available.11 However, consistent with principles established in Nixon and Nixon II, the PRA also preserves the right of both current and former Presidents to assert privilege claims by providing that disclosure by NARA is subject to any rights, defenses, or privileges which the United States or any agency or person may invoke.12

Shortly thereafter, President Joseph Biden determined that under the unique and extraordinary circumstances and because of Congress’s compelling need to understand the horrific events of January 6, asserting executive privilege over the requested documents would not be in the best interests of the United States.13 Former President Trump disagreed and notified the Archivist that he was asserting the Communications Privilege. After President Biden clarified that he would not uphold the former President’s assertion of Privilege, former President Trump filed suit in federal district court to block NARA from disclosing privileged documents to the Select Committee.14

The D.C. District Court in Thompson viewed the case as a dispute between a former and incumbent President.15 Citing to Nixon II, the court stated that because the incumbent President is best suited to identify and determine the best interests of the Executive Branch, former President Trump’s Privilege claim was outweighed by President Biden’s decision not to uphold the Privilege.16 Moreover, the court reasoned that to side with the former President would not only second guess the sitting President’s judgment, but also the Legislative Branch’s judgment—for both President Biden and the House agreed that the requested documents should be disclosed.17

The D.C. Circuit affirmed the district court decision on appeal. The court acknowledged, with reference to Nixon II, that there was no question that former President Trump could assert the Communications Privilege and that the Communications Privilege was of constitutional stature.18 Nevertheless, the court held that a rare and formidable alignment of [three] factors supported disclosure of the documents to the Committee and outweighed the former President’s interest in confidentiality.19

First, the court stated that President Biden’s determination that it was neither in the Executive Branch’s nor the public’s interest to assert Privilege over the requested documents carries immense weight in overcoming the former President’s claim.20 Consistent with previous case law, the court viewed President Biden as the principal holder and keeper of executive privilege and the judiciary as ill equipped to . . . second guess the expert judgment of the sitting President.21

Second, the House had a uniquely weighty interest in investigating the causes and circumstances of the January 6 attack on the U.S. Capitol.22 Indeed, the court noted that having presented a sound factual predicate for the requested documents, there would seem to be few, if any, more imperative interests squarely within Congress’s wheelhouse than ensuring the safe and uninterrupted conduct of its constitutionally assigned business.23

Third, and weighing still more heavily against former President Trump, was the fact that the judgment of the Political Branches is unified as to these particular documents.24 The court was unwilling to needlessly disturb ‘the compromises and working arrangements that the Congress and the President had already reached.25

In light of these three factors, the D.C. Circuit held that the profound interests in disclosure advanced by President Biden and the January 6th Committee far exceed [former President Trump’s] generalized concerns for Executive Branch confidentiality.26 That holding was given added significance by the court’s determination that it would have been compelled to reach that conclusion under any of the tests advocated by former President Trump, including the demonstrated, specific need standard from Nixon or the demonstrably critical standard from Senate Select.27 As such, it appears the Select Committee would have been able to overcome the Communications Privilege in this circumstance even if President Biden had supported former President Trump’s Privilege claim.

The Supreme Court picked up on this point in denying former President Trump’s petition to stay the D.C. Circuit decision.28 In interpreting the opinion below, the Supreme Court—in an unsigned order—reasoned that Mr. Trump’s status as a former President [ ] made no difference to the court’s decision since the D.C. Circuit had concluded that President Trump’s claims would have failed even if he were an incumbent.29 Because the former President’s assertion of privilege would have been unsuccessful either way, the Court declared the D.C. Circuit’s discussion of when executive privilege claims could properly be asserted by former Presidents to be nonbinding dictum.30


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