Constitutional Law I Spring 2004Con Law I * EXTRA * Executive Privilege Mar. 30, 2004

2 Basis for Executive Privilege SoP: Interference with core constitutional functions by Judiciary – through judicial subpoena Congress – through legislative subpoena Confidentiality required between President and close aides Forced testimony can obstruct decision-making

3 Types of Executive Privilege Absolute: All communications among Pres./key aides Qualified Communications vital to national security, etc.  As determined by President  As determined by Court (usually in camera) Rejected in US v. Nixon This would apply even for congressional subpoena

4 Should Executive Privilege Apply? It didn’t here Does it here?

5 Differences in the 3 cases Nixon Criminal investigation of aides for political crimes Evidence sought by court  6 th Amd fair trial concerns Clinton Civil case for pre- office tort  No immunity Evidence sought by court  5 th Amd due process concerns Bush Legislative investigation into national security policy reforms Evidence sought by Congressional agency  Structural rather than indiv. rights concerns Could Comm’n find criminal wrongdoing? Has Rice or Bush waived privilege?