Academic journal article Presidential Studies Quarterly

The Law: Can You Sue the White House? Opening the Door for Separation of Powers Immunity in Cheney V. District Court

Academic journal article Presidential Studies Quarterly

The Law: Can You Sue the White House? Opening the Door for Separation of Powers Immunity in Cheney V. District Court

Article excerpt

There is an old saying, "You can't sue city hall." The reference is that the executive is immune from lawsuits, so don't bother with litigation. It will just be a waste of time and resources. Cynics have interpreted executive immunity as an open invitation to secrecy, corruption, and abuse of power. By making executive branch officials immune from court proceedings, critics argue that the Executive becomes above the law (see, e.g., Berger 1974). Over the years, though, legislative bodies have passed numerous laws designed to promote open government and to hold executive officials accountable to the other branches of government and to their constituents. These laws reach all the way to the highest level of government in American society: the White House. (1)

Nevertheless, just because Congress wants to hold the president accountable does not necessarily mean that you can take the White House to court. Over the course of the past few decades, creative lawyers in the executive branch have asserted a variety of privileges and immunities to shield America's highest executive officials, the president and vice president of the United States, from both criminal and civil proceedings. The challenges naturally raise important constitutional questions, which the federal courts are often asked to address. (2)

So when exactly can you sue the president? In the last three decades, the task of answering this question has ultimately fallen on the United States Supreme Court. Beginning with the rejection of President Richard Nixon's claim of executive privilege to prevent discovery in a criminal proceeding, the Supreme Court has offered some broad parameters for holding the president in check while at the same time preserving the balance between the three branches of the federal government. (3) This year, however, the high court was asked to settle a less clear-cut controversy: can federal courts compel the president or the vice president to disclose documents through discovery to private litigants without violating the separation of powers doctrine?

While the Supreme Court failed to provide a definitive answer in Cheney v. District Court, it did indicate that presidents and vice presidents, while not above the law, are certainly entitled to greater deference than anyone else in American society. It also opened the door for executive immunity on the grounds of the separation of powers doctrine.

Holding government officials accountable is a vital element of democracy. So, too, is allowing each branch of government to perform its official duties without unnecessary or inappropriate interference from the other branches or the public. In Cheney v. District Court, the Supreme Court hinted where, perhaps, the line between executive accountability and presidential prerogatives might be drawn in legal proceedings against the nation's only two elected executive branch officials: the president and the vice president.

This article begins with an overview of the parameters that the Supreme Court has established regarding executive privilege and presidential immunity. (4) The article then proceeds to a discussion of how the Supreme Court recently addressed the current administration's efforts to avoid civil action against the vice president by asserting executive immunity based on the separation of powers doctrine. The article concludes with a brief discussion of the implications of the Court's ruling in Cheney v. District Court.

Defining the Parameters of Executive Immunity

In 1974, a unanimous Supreme Court recognized that presidents are entitled to executive privilege in certain instances that would shield the executive branch from the demands of the legislative and judicial branches of government. In the same case, however, the Court held that presidents could not escape the due process requirements of a criminal proceeding by invoking executive privilege, unless perhaps state secrets were at risk. Less than a decade later, when the president was sued for civil damages allegedly emanating from his official duties, a sharply divided Supreme Court took the opposite stance, granting the president absolute immunity from damages liability. In the 1990s, President Bill Clinton attempted to use the high court's previous immunity ruling to avoid being sued in civil court for a private action. Again, swinging to the other side of the spectrum, a unanimous Supreme Court rejected the president's claim of executive immunity for all civil actions.

As a result of these three rulings, presidents were identified as unique in the eyes of the law--entitled to certain privileges and immunities not available to most public officials and private citizens. Indeed, if damages were sought for official actions, presidents were granted absolute immunity. This did not, however, excuse presidents from all civil litigation--certainly not if the litigation involved private acts.

United States v. Nixon

In 1974, the District Court of the District of Columbia, at the request of the special prosecutor charged with investigating the Watergate break-in, issued a subpoena duces tecum directing President Richard Nixon to turn over certain tape recordings and documents of conversations involving the president and his aides. The president moved to quash the subpoena, asserting, among other grounds, that the material was protected from disclosure by executive privilege. After the motion to quash was rejected, the Supreme Court took the unusual step of granting certiorari prior to an appellate judgment. (5)

In asserting that the subpoena must be quashed for reasons of executive privilege, the president put forth two arguments. First, President Nixon contended that a president's claim of privilege could not be subjected to judicial review because of the separation of powers--in essence, making the president's claim of executive privilege absolute. Second, should executive privilege not be deemed absolute, President Nixon insisted that executive privilege should at least be held to prevail over subpoenas as a matter of law. (6)

President Nixon maintained that it was in his province to interpret the Constitution on matters relating to executive privilege. This would have resulted in a reading of the Constitution "as providing an absolute privilege of confidentiality for all Presidential communications." (7) Drawing on Marbury v. Madison, the Supreme Court rejected this contention:

   The "judicial Power of the United States" vested in the federal
   courts ... can no more be shared with the Executive Branch than
   the Chief Executive, for example, can share with the Judiciary
   the veto power, or the Congress share with the Judiciary the
   power to override a Presidential veto. Any other conclusion
   would be contrary to the basic concept of separation of powers
   and the checks and balances that flow from the scheme of a
   tripartite government. We therefore reaffirm that it is the
   province and duty of this Court "to say what the law is" with
   respect to the claim of privilege. (8)

After declaring that the Judiciary, not the Executive, ultimately has the authority to interpret the Constitution, the Supreme Court then dismissed the possibility of an absolute privilege:

   However, 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....

      To read the Art. II powers of the President as providing an
   absolute privilege as against a subpoena essential to enforcement
   of criminal statutes on no more than a generalized claim of the
   public interest in confidentiality of nonmilitary and
   nondiplomatic discussions would upset the constitutional balance
   of "a workable government" and gravely impair the role of the
   courts under Art. III. (9)

Despite rejecting the president's claim of absolute privilege, the Supreme Court was receptive to the president's second argument that protecting confidential presidential communications is a qualified privilege granted to the president by the Constitution: "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." (10) As such, the Court, for the first time, recognized the constitutionality of executive privilege--and deemed confidential presidential communications "presumptively privileged." (11)

Still, this did not translate into a sufficient enough privilege to trump a subpoena in a criminal matter:

   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 function of the courts. A President's acknowledged
   need for confidentiality in the communications of his office
   is general in nature, whereas the constitutional need for
   production of relevant evidence in a criminal proceeding is
   specific and central to the fair adjudication of a particular
   criminal case in the administration of justice. Without access
   to specific facts a criminal prosecution may be totally
   frustrated. The President's broad interest in confidentiality
   of communications will not be vitiated by disclosure of a
   limited number of conversations preliminarily shown to have
   some bearing on the pending criminal cases. (12)

Drawing on this reasoning, the unanimous Court held that "generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial." (13)

While United States v. Nixon did not turn out in President Nixon's favor, it did establish a qualified privilege allowing presidents to withhold certain documents from the other branches of government and the public. What the case did not do, however, was identify when exactly the privilege could be invoked. (14) The only holding from the Nixon case was that a general assertion of executive privilege could not be used to shield presidential communications and documents from discovery in a criminal proceeding. As to civil matters, though, the specific guidelines as to when a president could be sued and/or subjected to discovery were not delineated. Still, the Nixon case provided a separation of powers rationale for asserting executive immunity (at least in civil cases). And it was not long before President Nixon seized on it to do just that.

Nixon v. Fitzgerald

Drawing on the doctrine of separation of powers, the Supreme Court's ruling in United States v. Nixon identified a unique (albeit qualified) privilege belonging to the president, which would allow him to prevent the disclosure of certain documents and records. The Nixon case, however, dealt with a criminal proceeding in which the president was not a defendant. Therefore, the scope of the case was limited to the question of privilege as opposed to immunity.

The Supreme Court was called upon to address the question of presidential immunity during the 1981-1982 term. After the Civil Service Commission determined that Air Force whistle-blower A. Ernest Fitzgerald lost his job for "reasons purely personal," a suit was brought against former President Nixon seeking damages for his official actions in the dismissal. (15) President Nixon asserted a claim of absolute presidential immunity from civil suit. The District Court for the District of Columbia allowed the suit to proceed, rejecting the former president's claim. President Nixon appealed. The Court of Appeals for the DC Circuit summarily dismissed the collateral appeal. (16) The Supreme Court, drawing on its decision in United States v. Nixon, which highlights "the special solicitude due to claims alleging a threatened breach of essential Presidential prerogatives under the separation of powers," granted certiorari. (17)

While Fitzgerald conceded that presidents are entitled to the same qualified immunity that other executive branch officials possess, he opposed Nixon's claim of absolute immunity. (18) The Supreme Court rejected Fitzgerald's protestations on the premise that "The President's unique status under the Constitution distinguishes him from other executive officials." (19) But did this "unique status" warrant absolute immunity? The issue sharply divided the Court, with five justices favoring a grant of absolute immunity and four opposing it.

Justice Lewis Powell, writing for the majority, drew on the rationale in United States v: Nixon to reason that, while officials are entitled to certain "evidentiary privileges," the president deserves an extraordinary degree of judicial deference "rooted in the separation of powers under the Constitution." (20) As Justice Powell wrote:

   It is settled law that the separation-of-powers doctrine does
   not bar every exercise of jurisdiction over the President of the
   United States. But our cases also have established that a court,
   before exercising jurisdiction, must balance the constitutional
   weight of the interest to be served against the dangers of
   intrusion on the authority and functions of the Executive Branch.
   When judicial action is needed to serve broad public interests--as
   when the Court acts, not in derogation of the separation of powers,
   but to maintain their proper balance, or to vindicate the public
   interest in an ongoing criminal prosecution--the exercise of
   jurisdiction has been held warranted. In the case of this merely
   private suit for damages based on a President's official acts, we
   hold it is not. (21)

As such, the Court held "the President is absolutely immune from civil damages liability for his official acts in the absence of explicit affirmative action by Congress." (22)

In reaching this conclusion, the high court supplemented its separation of powers rationale with a practical argument. As a matter of pragmatism, the Court recognized that the presidency carries unique responsibilities that could suffer if the president were frequently drawn into civil litigation:

   Because of the singular importance of the President's duties,
   diversion of his energies by concern with private lawsuits would
   raise unique risks to the effective functioning of government....
   Nor can the sheer prominence of the President's office be
   ignored. In view of the visibility of his office and the effect
   of his actions on countless people, the President would be an
   easily identifiable target for suits for civil damages. Cognizance
   of this personal vulnerability frequently could distract a
   President from his public duties, to the detriment of not only the
   President and his office but also the Nation that the Presidency
   was designed to serve. (23)

Indeed, because of the demands on the president, the majority went beyond its tradition of limiting official immunity to acts in performance of specific duties, and extended the president's immunity to include "acts within the 'outer perimeter' of his official responsibility." (24)

The Court recognized two pitfalls of executive immunity: (1) it "may impose a regrettable cost on individuals whose rights have been violated" and (2) it leaves the perception of a "Nation without sufficient protection against misconduct on the part of the Chief Executive." (25) The majority, however, was quick to note that not every civil wrong has a remedy under the law. (26) Moreover, as other government officials, such as judges and prosecutors, have absolute immunity for official conduct, the Court felt that extending such a right to the president was not a far or inappropriate stretch. (27) Nor was the majority swayed by "above the law" concerns. Citing impeachment, congressional oversight, press scrutiny, and reelection, the Court argued that there were adequate alternative means for holding the president accountable. (28)

The combination of legal doctrine, executive function, and political safeguards, therefore, convinced a majority of the justices to hold that President Nixon was "entitled to absolute immunity from damages liability predicated on his official acts." (29)

Clinton v. Jones

When President Bill Clinton was sued by Paula Jones in the District Court for the Eastern District of Arkansas for sexual harassment that allegedly occurred in 1991, prior to Clinton's election to the presidency, his lawyers drew on Fitzgerald to argue "that in all but the most exceptional cases the Constitution requires federal courts to defer such litigation until his term ends and that, in any event, respect for the office warrants such a stay." (30) The District Court, while denying the president's motion to dismiss on grounds of presidential immunity, was persuaded by Fitzgerald to stay the trial until the end of President Clinton's presidency. (31)

On appeal, a divided panel of the Court of Appeals for the Eighth Circuit reversed the decision to stay the trial on grounds that it was de facto grant of temporary presidential immunity which was inappropriate in suits involving "unofficial acts." The appellate court was furthermore not persuaded by the president's argument that "unless immunity is available, the threat of judicial interference with the Executive Branch through scheduling orders, potential contempt citations, and sanctions would violate separation of powers principles." (32)

On certiorari, the Supreme Court unanimously affirmed the appellate court's rejection of an immunity claim for an unofficial act. As Justice John Paul Stevens wrote:

   The principal rationale for affording certain public servants
   immunity from suits for money damages arising out of their
   official acts is inapplicable to unofficial conduct.... "The point
   of immunity for such officials is to forestall an atmosphere of
   intimidation that would conflict with their resolve to perform
   their designated functions in a principled fashion...."

      This reasoning provides no support for an immunity for
   unofficial conduct. As we explained in Fitzgerald, "the sphere of
   protected action must be related closely to the immunity's
   justifying purposes." (33)

The Court also rejected President Clinton's separation of powers immunity claim:

As Madison explained, separation of powers does not mean that the branches "ought to have no partial agency in, or no control over the acts of each other." The fact that a federal court's exercise of its traditional Article III jurisdiction may significantly burden the time and attention of the Chief Executive is not sufficient to establish a violation of the Constitution....

In sum, "it is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States." If the Judiciary may severely burden the Executive Branch by reviewing the legality of the President's official conduct, and if it may direct appropriate process to the President himself, it must follow that the federal courts have power to determine the legality of his unofficial conduct. The burden on the President's time and energy that is a mere by-product of such review surely cannot be considered as onerous as the direct burden imposed by judicial review and the occasional invalidation of his official actions. We therefore hold that the doctrine of separation of powers does not require federal courts to stay all private actions against the President until he leaves office. (34)

The Supreme Court also addressed a concern raised by President Clinton that, as a practical matter (as opposed to a constitutional matter), allowing Paula Jones's lawsuit to proceed would set a bad precedent that would lead to increased burdensome and/or vexatious lawsuits against the chief executive. (35) The Supreme Court, however, discounted this concern, noting that historically this has not been a problem:

   Most frivolous and vexatious litigation is terminated at the
   pleading stage or on summary judgment, with little if any personal
   involvement by the defendant. Moreover, the availability of
   sanctions provides a significant deterrent to litigation directed
   at the President in his unofficial capacity for purposes of
   political gain or harassment. History indicates that the likelihood
   that a significant number of such cases will be filed is remote.
   Although scheduling problems may arise, there is no reason to
   assume that the District Courts will be either unable to
   accommodate the President's needs or unfaithful to the
   tradition--especially in matters involving national security--of
   giving "the utmost deference to Presidential
   responsibilities." (36)

Dismissing President Clinton's immunity claims and litigation concerns, the Court established that presidents can be sued--especially when the causes of action relate to unofficial acts.

Crafting a Possible Separation of Powers Executive Immunity

The Cheney-National Energy Policy Development Group Cases

During his first weeks in office, President George W. Bush set up the National Energy Policy Development Group (NEPDG). (37) This task force was established within the Office of the President, under the chairmanship of Vice President Dick Cheney. The president appointed several cabinet secretaries, agency directors, and presidential assistants to the group. The memorandum creating the NEPDG also authorized the vice president to invite "other officers of the Federal Government" to participate "as appropriate." (38)

In May 2001, the NEPDG released its final report, which proffered a set of recommendations for the Bush administration's new national energy policy. The NEPDG allegedly ceased all operations when its authority ran out on September 30, 2001. (39)

Judicial Watch v. NEPDG and Sierra Club v. Cheney

Following the release of the NEPDG's final report, Judicial Watch and the Sierra Club brought legal action against the NEPDG and the vice president under the Federal Advisory Committee Act (FACA), which requires advisory committees to make all their records available for public inspection, unless such documents are exempted from release by the Freedom of Information Act (FOIA). (40) The vice president objected, asserting that the NEPDG was exempt from FACA disclosure requirements because all members appointed to the group were federal government employees. (41) The plaintiffs argued that private lobbyists and corporate executives, notably former Enron Chief Executive Officer Kenneth Lay, were in fact active de facto members of the NEPDG. (42)

Judicial Watch and the Sierra Club requested that the court order the vice president to turn over all records, minutes, agendas, and reports subject to disclosure under FACA. (43) The vice president moved for a dismissal, citing, among other grounds, the separation of powers doctrine and infringement on the constitutional duties of the president and the vice president. (44) The District Court posed the constitutional issue as follows: "whether Congress can pass a law granting the public access to the deliberative process of a formally constituted group of the President's advisors when at least one of those advisors is a private individual without violating Article II. The application of FACA to this group, argue defendants, interferes with the President's constitutionally protected ability to receive confidential advice from his advisors, even when those advisors include private individuals." (45)

The District Court deemed that it was "premature" to decide the constitutional issues in the case prior to discovery, therefore denying the vice president's motion to dismiss. (46) The District Court subsequently accepted the plaintiffs' discovery plan and ordered the vice president to turn over all non-privileged material and a privilege log identifying material withheld on the grounds of a legally recognized privilege. (47) The vice president filed a motion for a protective order shielding him from discovery on grounds that discovery in this matter would violate the separation of powers. The District Court denied the motion. (48) The vice president then requested certification of an interlocutory appeal, which was also denied. (49)

In re Cheney

Following the District Court's refusal to certify an interlocutory appeal, the vice president filed an emergency motion for a writ of mandamus with the Court of Appeals of the District of Columbia. (50) In requesting mandamus against the District Court, the vice president claimed harm in that "extending the legislative and judicial powers to compel a Vice President to disclose to private persons the details of the process by which a President obtains information and advice from the Vice President raises separation of powers problems of the first order." (51)

Like the District Court, though, the Court of Appeals, in a 2-1 decision, deemed the separation of powers argument "premature," for "Far from 'ordering extensive disclosure of communications between senior executive branch officials and those with information relevant to advice that was being formulated for the President,' the district court ordered defendants to produce 'non-privileged documents and a privilege log.'" (52) Basing its decision on United States v. Nixon, which was read as requiring an official invocation of executive privilege before separation of powers objections could be entertained, the majority ruled that mandamus "is certainly unjustified here, where petitioners have yet to assert a privilege in the district court." (53) This led the majority to hold

   Moreover, petitioners' concerns about the potential disclosure of
   privileged information are fully addressable in the district court
   or, if necessary, in a later proceeding here. If, in response to
   the district court's discovery order, petitioners choose to invoke
   executive or any other privilege, that court, keeping in mind the
   need to "accord[] high respect to the representations made on behalf
   of the President," may sustain the privilege, thus giving
   petitioners all the relief they seek here. On the other hand, were
   the district court to reject a claim of executive privilege, thus
   creating an imminent risk of disclosure of allegedly protected
   presidential communications, then mandamus might well be
   appropriate to avoid letting "the cat ... out of the bag." But so
   long as the separation of powers conflict that petitioners
   anticipate remains hypothetical, we have no authority to exercise
   the extraordinary remedy of mandamus. (54)

As a result, the petition for mandamus was dismissed by the Court of Appeals.

Cheney v. District Court

Following the denial of the vice president's petition for mandamus against the District Court, the solicitor general of the United States filed a petition for certiorari with the Supreme Court. The Supreme Court granted certiorari on the narrow issue of "the circumstances under which a court of appeals may exercise its power to issue a writ of mandamus to modify or dissolve the [discovery] orders when, by virtue of their over-breadth, enforcement might interfere with the officials in the discharge of their duties and impinge upon the President's constitutional prerogatives." (55) In perceiving the issue this way, the Supreme Court characterized this case as a separation of powers controversy. Because of the important constitutional issues at stake, the Supreme Court concluded that the case fell into that small category of cases in which the Court of Appeals had the discretion to exercise its mandamus power. As such, the Court of Appeals' decision was vacated and the case was remanded.

To reach this determination, the Supreme Court had to address a threshold question: is the vice president entitled to the same separation of powers immunities as the president? While the Supreme Court did not provide a concrete answer, it suggested that the vice president should be treated with the same deference:

   The public interest requires that a coequal branch of Government
   "afford Presidential confidentiality the greatest protection
   consistent with the fair administration of justice," and give
   recognition to the paramount necessity of protecting the Executive
   Branch from vexatious litigation that might distract it from the
   energetic performance of its constitutional duties.

      These separation-of-powers considerations should inform a court
   of appeals' evaluation of a mandamus petition involving the
   President or the Vice President. Accepted mandamus standards are
   broad enough to allow a court of appeals to prevent a lower court
   from interfering with a coequal branch's ability to discharge its
   constitutional responsibilities. (56)

Counseling judicial deference for the vice president, the Supreme Court turned to segregating the vice president's separation of powers-based executive immunity argument from the Court of Appeals' conflated executive privilege analysis. (57) It did so by distinguishing the present case from the Nixon case, which the Court of Appeals relied on to reach its ruling. As the high court opined, "Nixon cannot bear the weight the Court of Appeals puts upon it." (58) The Supreme Court felt that Nixon was of limited precedental value because it involved a criminal prosecution whereas the present case involves a civil action. (59) As a result, the different nature of each proceeding entails distinct separation of powers concerns.

With regard to criminal matters, the Court reiterated its view from Nixon that

   A "primary constitutional duty of the Judicial Branch [is] to do
   justice in criminal prosecutions." Withholding materials from a
   tribunal in an ongoing criminal case when the information is
   necessary to the court in carrying out its tasks "conflicts with
   the function of the courts under Art. III." Such an impairment of
   the "essential functions of [another] branch" is impermissible. (60)

But seemingly the frustration of discovery in civil litigation--in matters that, at the very least, pit the protection of executive branch deliberations and communications against the need for production and disclosure of such information to private parties--is to be afforded less protection for it "does not hamper another branch's ability to perform its 'essential functions' in quite the same way." (61) It was the Court's belief that "The situation here cannot, in fairness, be compared to Nixon, where a court's ability to fulfill its constitutional responsibility to resolve cases and controversies within its jurisdiction hinges on the availability of certain indispensable information." (62)

Interference with constitutional duties aside, the Supreme Court also raised concerns about unfairly burdening and distracting the White House with discovery in this case. The Court was quick to point out that, because the discovery orders were specifically directed at Vice President Cheney, the dispute in this matter was atypical. (63) As a result, this was a unique case in which "the Executive Branch, at its highest level, is seeking the aid of the courts to protect its constitutional prerogatives." The Court felt that this required a substantial degree of regard:

   As we have already noted, special considerations control when the
   Executive Branch's interests in maintaining the autonomy of its
   office and safeguarding the confidentiality of its communications
   are implicated. This Court has held, on more than one occasion,
   that "the high respect that is owed to the office of the Chief
   Executive ... is a matter that should inform the conduct of the
   entire proceeding, including the timing and scope of discovery,"
   and that the Executive's "constitutional responsibilities and
   status {are} factors counseling judicial deference and restraint"
   in the conduct of litigation against it. (64)

In particular, the Court expressed its displeasure with the discovery requests, which it deemed as "anything but appropriate," as they "ask for everything under the sky." (65) The Supreme Court felt the requests, as approved by the District Court, provided "all the disclosure to which {Judicial Watch and the Sierra Club} would be entitled in the event they prevail on the merits, and much more besides." (66)

Both the District Court and the Court of Appeals discounted these discovery concerns. The lower courts, instead, held that if the discovery orders were problematic, the vice president could invoke executive privilege on an item-by-item basis. The Supreme Court, however, saw the present case less as an executive privilege matter and more as a separation of powers issue. (67) For the Supreme Court, executive privilege was not involved at present. The current dispute instead centered on judicial complicity in burdening the White House. (68) As a result, the Court took issue with the lower courts' insistence that separation of powers protection was "hypothetical" because executive privilege had not yet been invoked. Rather, the high court admonished that forcing invocations of executive privilege should be avoided:

   Contrary to the District Court's and the Court of Appeals'
   conclusions, Nixon does not leave them the sole option of inviting
   the Executive Branch to invoke executive privilege while remaining
   otherwise powerless to modify a party's overly broad discovery
   requests. Executive privilege is an extraordinary assertion of power
   "not to be lightly invoked." Once executive privilege is asserted,
   coequal branches of the Government are set on a collision course.
   The Judiciary is forced into the difficult task of balancing the
   need for information in a judicial proceeding and the Executive's
   Article II prerogatives. This inquiry places courts in the awkward
   position of evaluating the Executive's claims of confidentiality
   and autonomy, and pushes to the fore difficult questions of
   separation of powers and checks and balances. These "occasions for
   constitutional confrontation between the two branches" should
   be avoided whenever possible. (69)

Agreeing with the vice president that the present case was best characterized as an immunity dispute (as opposed to a privilege dispute), the Court vacated the appellate decision and remanded the matter back to the DC Circuit for further consideration. (70) In doing so, it expanded the mandamus authority of the Court of Appeals to three grounds: (1) a "judicial usurpation of power"; (2) a "clear abuse of discretion"; and now (3) an "unwarranted impairment of another branch in the performance of its constitutional duties." (71) The significance of this ruling is that, now, when one branch of the federal government can establish that another branch inappropriately interfered with its functions, it can justify the "drastic and extraordinary" judicial remedy of mandamus. (72)


In Cheney v. District Court, Judicial Watch and the Sierra Club, as respondents, argued that the Supreme Court should let their litigation proceed as the courts below had ordered, citing United States v. Nixon and Clinton v. Jones as supporting precedents. Both of these cases clearly outlined conditions in which presidents could not escape litigation. The vice president countered with reliance on Nixon v. Fitzgerald, which defined a circumstance in which a president should be excused absolutely from litigation. The high court, which declined to offer a concrete answer on where it stood in the debate over executive immunity in the present case, did nevertheless instruct the appellate court, on remand, to entertain the vice president's separation of powers immunity claim with deference.

Most commentators saw the outcome as an important victory for the vice president and for the Bush administration (see, e.g., Gibson 2004; Greenhouse 2004; Lane 2004; Savage 2004). Politically, the Bush administration caught a break: relief from having to release the NEPDG files prior to the 2004 presidential election. (73) Legally, though, the impact of the Supreme Court's decision is more difficult to gauge. For one thing, the vice president was not awarded what he wanted most: immunity from suit in this case. Moreover, it is possible that on remand the Court of Appeals, after considering the vice president's arguments anew (and with greater deference), will still conclude that this case does not warrant the issuance of a writ of mandamus. Or, in the more likely alternative, the Court of Appeals might issue the writ of mandamus, but only to the limited extent of forcing the District Court to narrow its discovery orders. In either case, the legal process will continue.

In reality, Cheney is a very narrow holding: courts of appeal have mandamus discretion when separation of powers objections are raised by a branch of the federal government. The Court, however, failed to identify when exactly such writs should issue on separation of powers grounds. This remains a matter left to the sound discretion of the appellate courts instead. (74)

Still, the executive branch did not walk away empty-handed. First, the opinion implies that the vice president should enjoy the right to invoke presidential privileges and immunities (at least in civil suits). (75) Several times during the opinion, the president and the vice president were referred to interchangeably with regard to presidential prerogatives. Should vice presidents seize on this language in the future, it is likely that they will argue that they are shielded from a variety of legal proceedings because of the unique rights and responsibilities conferred to them by the Constitution. The fact that the Supreme Court did not expressly distinguish the vice president from the president in its ruling bodes well for vice presidents. In this regard, this case was a significant victory for the Office of the Vice President.

Second, and arguably more important, the Supreme Court segregated executive privilege from executive immunity, instructing lower courts to avoid placing the executive branch in a position of invoking specific executive privileges when general separation of powers concerns might be enough to excuse the president or the vice president from the legal process. As such, Cheney opened the door for a distinct presidential and vice presidential immunity assertion based on the separation of powers doctrine. While the Supreme Court declined to grant the vice president immunity in this case, it also did not reject the vice president's argument outright. Instead, the Court suggested that such a determination is within the Court of Appeals' discretion. By explicitly deeming inter-branch interferences adequate grounds for the issuance of writs of mandamus, the high court tacitly validated Vice President Cheney's argument that some civil litigation violates the separation of powers. This should result in increased claims of immunity from the executive branch in the future.

Third, if nothing else, the holding affirms the principle that the president (and now the vice president) should not be treated as ordinary persons in a legal proceeding. Indeed, presidents and vice presidents are to be afforded great deference in civil actions involving private (i.e., non-governmental) litigants. In this light, the Cheney opinion suggests that burdensome and/or vexatious civil litigation might provide an adequate basis for presidential immunity based on the separation of powers (assuming of course that the proceedings involve official actions or communications of some sort).

So, to return to this article's initial question, can you sue the White House? Well, unless you are seeking civil damages from the president for official actions, the answer is most likely "yes." But just because you can bring a suit against the president does not mean that the case will result in a judgment. Presidents have privileges and immunities that might shield them from different types of litigation. And with the Supreme Court's ruling in Cheney v. District Court, a private litigant's odds of getting a judgment against the White House are not likely to increase, for the president and the vice president now arguably have a new legal claim for escaping the process: presidential and vice presidential separation of powers immunity.

(1.) For example, the Freedom of Information Act, 5 U.S.C. [section] 552 et seq.; the Presidential Records Act, d4 U.S.C. [subsection] 2201 et seq.; and the Federal Advisory Committee Act, 5 U.S.C. App. [section] 1 et seq.

(2.) The Judiciary can resolve constitutional controversies given their power of judicial review. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

(3.) There is, of course, a long history of presidents attempting to withhold information and materials from the legislative and judicial branches of government, tracing all the way back to President George Washington. The employment of the term "executive privilege," however, only dates back to 1958. The Supreme Court did not address the concept until 1974, when it was invoked by President Richard Nixon. Similarly, "presidential immunity" was first addressed by the Supreme Court in 1982, again in response to a claim asserted by then former President Nixon. See Rozell (2002) and Fisher (2004).

(4.) As Williams (1997) and Bleich and Wolff (1999) correctly note, executive privilege and executive immunity are two different, albeit related, legal concepts. The former is a specific qualified legal right excepting the Executive from disclosing certain information and documents to the other two branches of government--the Legislature and the Judiciary--both of which possess the power to subpoena information and compel disclosure. The latter is a broader legal right--usually qualified but, at times, absolute--that exempts the Executive from legal proceedings in their entirety. When immunity applies, the Executive is not just exempt from disclosing information, the Executive is exempt from all process (beyond initial service and appearance) and liability. For more on executive privilege, see Rozell (2002) and Fisher (2004). For more on executive immunity, see Amar and Katyal (1995) and Isenbergh (1999).

(5.) United States v. Nixon, 418 U.S. 683, 686-87 (1974). President Nixon was an unindicted coconspirator in this case. Ibid.

(6.) Ibid., 703.

(7.) Ibid.

(8.) Ibid., 704-05 (citations omitted).

(9.) Ibid., 706-07.

(10.) Ibid., 711.

(11.) Ibid., 708. As Chief Justice Warren Burger wrote in the unanimous opinion: "The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the 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. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution." Ibid.

(12.) Ibid., 712-13. "The interest in preserving confidentiality is weighty indeed and entitled to great respect. However, 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." Ibid., 712.

(13.) Ibid., 713.

(14.) The Court was clear in its opinion that it was not "concerned with the balance between the President's generalized interest in confidentiality and the need for relevant evidence in civil litigation, nor with that between the confidentiality interest and congressional demands for information, nor with the President's interest in preserving state secrets." Ibid., 712.

(15.) Fitzgerald v: Nixon, 457 U.S. 731, 738 (1982). Although the chief examiner for the Civil Service Commission delivered his ruling in 1973, President Nixon was not named as a defendant until 1978, when Fitzgerald amended his complaint to include the former president. The president was named as a party, after extensive discovery, because of evidence that the president might have been directly involved, in his official capacity, in Fitzgerald's dismissal. Ibid., 737-41.

(16.) Ibid., 740-41.

(17.) Ibid., 743. The Supreme Court tailored its ruling to the more limited question of: is a president (incumbent or former) immune from a civil lawsuit, brought under implied causes of action, seeking damages for actions allegedly undertaken by the president in his official capacity? The Court only dealt with implied causes of action against the president. As the Court stated, "We need not address directly the immunity question as it would arise if Congress expressly had created a damages action against the president of the United States. This approach accords with this Court's settled policy of avoiding unnecessary decision of constitutional issues." Ibid., 748. The Court also did not address lawsuits against the president for his private acts. This was addressed in Clinton v. Jones, which is discussed below.

(18.) Ibid., 750.

(19.) Ibid.

(20.) Ibid., 753 (quoting United States v. Nixon).

(21.) Ibid., 753-54.

(22.) Ibid., 748.

(23.) Ibid., 751-53. The majority added, "Under the Constitution and laws of the United States the President has discretionary responsibilities in a broad variety of areas, many of them highly sensitive. In many cases it would be difficult to determine which of the President's innumerable 'functions' encompassed a particular action.... inquiries of this kind could be highly intrusive." Ibid., 756.

(24.) Ibid., 755.

(25.) Ibid., 754, 757.

(26.) Ibid., 754.

(27.) Ibid., 738.

(28.) Ibid., 757.

(29.) Ibid.

(30.) Clinton v. Jones, 520 U.S. 681, 684 (1997).

(31.) Ibid., 687.

(32.) Ibid., 687-88.

(33.) Ibid., 692-93 (citations omitted). The Court made it clear that it categorized the alleged acts that provided a cause of action for Jones's lawsuit to be unofficial acts: "It is perfectly clear that the alleged misconduct of petitioner was unrelated to any of his official duties as President of the United States and, indeed, occurred before he was elected to that office." Ibid., 686.

(34.) Ibid., 703, 705-06 (emphasis in original; citations omitted). The Court, nevertheless, drew on its ruling in United State v. Nixon to urge deference and caution in litigation involving the president: "Of course, it does not follow that a court may 'proceed against the president as against an ordinary individual.' Special caution is appropriate if the materials or testimony sought by the court relate to a President's official activities, with respect to which 'the interest in preserving confidentiality is weighty indeed and entitled to great respect.'" Ibid., 704.

(35). The Court distinguished the burden of litigation from constitutional concerns: "We recognize that a President, like any other official or private citizen, may become distracted or preoccupied by pending litigation. Presidents and other officials face a variety of demands on their time, however, some private, some political, and some as a result of official duty. While such distractions may be vexing to those subjected to them, they do not ordinarily implicate constitutional separation of powers concerns." Ibid., 705.

(36.) Ibid., 708-09 (citations omitted).

(37.) Specifically, the task force was charged with developing "a national energy policy designed to help the private sector, and as necessary and appropriate Federal, State, and local governments, promote dependable, affordable, and environmentally sound production and distribution of energy." "Memorandum Establishing National Energy Policy Development Group," January 29, 2001, quoted in Judicial Watch z: NEPDG, 219 F. Supp. 2d 20, 24 (D.D.C. 2002).

(38.) Ibid.

(39.) Judicial Watch v. NEPDG, 219 F. Supp. 2d 20, 25 (D.D.C. 2002). September 30, 2001, was the last day of the fiscal year. The presidential memorandum establishing the NEPDG allowed it to act only through the end of the 2001 fiscal year. Ibid., 24. Judicial Watch, however, alleges that the NEPDG continued to function after its statutory authority lapsed. Ibid., 28.

(40.) Ibid., 29. Judicial Watch brought suit in July 2001 against the NEPDG and various individuals in the United States District Court for the District of Columbia. In January 2002, the Sierra Club brought a nearly identical suit against Vice President Cheney in the United States District Court for the District of Northern California. In March 2002, the California court ordered the Sierra Club case transferred to the DC court. The DC court consolidated the cases. Ibid., 25-26. The initial lawsuits involved numerous defendants--both governmental and non-governmental. This article, which deals with separation of powers and executive privilege and immunity, only focuses on one defendant: Vice President Cheney.

(41.) Ibid., 25.

(42.) Ibid. The de facto member doctrine is a legal doctrine in the District of-Columbia circuit that requires FACA disclosure when a non-federal participant's "involvement and role" in a governmental advisory group is "functionally indistinguishable from those of the other members." As the case which established the doctrine states, "If a 'consultant' regularly attends and fully participates in working group meetings as if he were a 'member,' he should be regarded as a member. Then his status as a private citizen would disqualify the working group from the section 3(2) exemption for meetings of full-time government officials." Association of American Physicians and Surgeons v. Clinton, 997 F.2d 898,915 (D.D.C. 1993). In other words, when private individuals are de facto members of a government advisory group, the government cannot normally exempt the group's records from public disclosure under FACA (unless another type of legally permitted exemption exists).

(43.) Judicial Watch v. NEPDG, 219 F. Supp. 2d 20, 29-30 (D.D.C. 2002). The plaintiffs argue that once private individuals (i.e., non-governmental persons) take part in a task force, the group takes on the status of an advisory committee subject to the public disclosure provisions of the FACA. The plaintiffs further argue that the District Court has jurisdiction over this matter and can order government officials to disclose relevant documents through its mandamus authority. The federal mandamus statute (28 U.S.C. [section] 1361) states: "The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." Judicial Watch and the Sierra Club contend that the federal mandamus statute grants jurisdiction to the District Court in instances where another statute compels a government official to perform "a non-discretionary duty," so long as no other relief is available. Ibid., 41. The District Court indicated that it was open to this reasoning, although it was too soon and, therefore, "inappropriate to determine whether the relief of mandamus will or will not issue," without first conducting discovery. Ibid., 44.

(44.) Ibid., 28-55. Numerous objections to the lawsuits were raised by government lawyers on behalf of Vice President Cheney. A full discussion of these arguments for dismissal is beyond the scope of this article. Suffice it to say, the lawsuit against the vice president was not dismissed.

(45.) Ibid., 44.

(46.) Ibid.

(47.) Judicial Watch v. NEPDG, 230 F. Supp. 2d 12, 13 (D.D.C. 2002).

(48.) Ibid., 13-16.

(49.) Judicial Watch v. NEPDG, 233 F. Supp. 2d 16 (D.D.C. 2002).

(50.) Appellate-level mandamus involves the issuance of an extraordinary writ to correct a severe judicial wrong. As the Supreme Court explained it, "The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine {the court against which mandamus is sought} to a lawful exercise of its prescribed jurisdiction." Roche v. Evaporated Milk Assn.. 319 U.S. 21, 26 (1943).

(51.) In re Cheney, 334 F.3d 1096, 1104 (D.C. Cir. 2003).

(52.) Ibid.

(53.) Ibid.

(54.) Ibid., 1104-05 (citations omitted).

(55.) Cheney v. District Court, 2004 U.S. LEXIS 4576, 14 (2004). The majority did not address the vice president's assertion, contained in his petition and brief, that the application of FACA to the NEPDG, based on the allegation that private individuals were de facto members, is problematic and perhaps even unconstitutional. The majority only addressed the question of whether the Court of Appeals had mandamus or appellate jurisdiction over the discovery orders. Justice Clarence Thomas, joined by Justice Antonin Scalia, argued, nevertheless, in a separate opinion, that "application of the de facto member doctrine to authorize broad discovery into the inner-workings of the NEPDG has the same potential to offend the Constitution's separation of powers as the actual application of FACA to the NEPDG itself." Ibid., 70 (Thomas, J., concurring in part and dissenting in part). For this reason, Justices Thomas and Scalia would have reversed the Court of Appeals and instructed it to issue a writ of mandamus against the District Court. Ibid., 71.

(56.) Ibid., 30-31 (emphasis added; citations omitted). The Court added, "Were the Vice President not a party in the case, the argument that the Court of Appeals should have entertained an action in mandamus ... might present different considerations.... These facts and allegations remove this case from the category of ordinary discovery orders where interlocutory appellate review is unavailable, through mandamus or otherwise." Ibid., 28-29.

(57.) The Court of Appeals had largely relied on a threshold executive privilege analysis, based on United State v. Nixon, to reach its decision on Vice President Cheney's separation of powers argument. In doing so, the Court of Appeals, in the words of Justice Anthony Kennedy, who wrote the Supreme Court's majority opinion, "labored under the mistaken assumption that the assertion of executive privilege is a necessary precondition to the Government's separation-of-powers objections. Ibid., 45-46. As such, the Supreme Court felt, "The Court of Appeals dismissed [Vice President Cheney's] separation-of-powers concerns." Ibid., 31.

(58.) Ibid., 32.

(59.) Ibid., 32-33. As the Court noted, "The distinction Nixon drew between criminal and civil proceedings is not just a matter of formalism.... In light of the 'fundamental' and 'comprehensive' need for 'every man's evidence' in the criminal justice system, not only must the Executive Branch first assert privilege to resist disclosure, but privilege claims that shield information from a grand jury proceeding or a criminal trial are not to be 'expansively construed, for they are in derogation of the search for truth.' The need for information for use in civil cases, while far from negligible, does not share the urgency or significance of the criminal subpoena requests in Nixon. As Nixon recognized, the right to production of relevant evidence in civil proceedings does not have the same 'constitutional dimensions.'" Ibid., 33-34 (citation omitted).

(60.) Ibid., 34 (citations omitted).

(61.) Ibid. It was the majority's view that "The District Court ordered discovery here, not to remedy known statutory violations, but to ascertain whether FACA's disclosure requirements even apply to the NEPDG in the first place. Even if FACA embodies important congressional objectives, the only consequence from respondents' inability to obtain the discovery they seek is that it would be more difficult for private complainants to vindicate Congress' policy objectives under FACA." Ibid., 34-35.

(62.) Ibid., 35.

(63.) Ibid., 35-36.

(64.) Ibid., 36 (citations omitted). One particular concern that the Supreme Court raised again emanated from its distinction between criminal and civil proceedings: "The observation in Nixon that production of confidential information would not disrupt the functioning of the Executive Branch cannot be applied in a mechanistic fashion to civil litigation. In the criminal justice system, there are various constraints, albeit imperfect, to filter out insubstantial legal claims.... In contrast, there are no analogous checks in the civil discovery process here. Although under Federal Rule of Civil Procedure 11, sanctions are available, and private attorneys also owe an obligation of candor to the judicial tribunal, these safeguards have proved insufficient to discourage the filing of meritless claims against the Executive Branch. 'In view of the visibility of' the Offices of the President and the Vice President and 'the effect of their actions on countless people,' they are 'easily identifiable targets for suits for civil damages.'" Ibid., 36-37 (citations omitted).

(65.) Ibid., 39, 41.

(66.) Ibid., 41. The Court cautioned that greater precision and specificity were warranted: "The very specificity of ... subpoena requests serves as an important safeguard against unnecessary intrusion into the operation of the Office of the President." Ibid., 39.

(67.) As the Court noted, "The separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties." Ibid., 31.

(68.) As the Court observed, "The Government objected to the burden that would arise from the District Court's insistence that the Vice President winnow the discovery orders by asserting specific claims of privilege and making more particular objections." Ibid., 42.

(69.) Ibid., 43-44 (citations omitted). The Court did suggest an avenue for avoiding an unnecessary executive privilege invocation: "In recognition of these concerns, there is sound precedent in the District of Columbia itself for district courts to explore other avenues, short of forcing the Executive to invoke privilege, when they are asked to enforce against the Executive Branch unnecessarily broad subpoenas. In United Slates v. Poindexter, 727 F. Supp. 1501 (1989), defendant Poindexter, on trial for criminal charges, sought to have the District Court enforce subpoena orders against President Reagan to obtain allegedly exculpatory materials. The Executive considered the subpoenas 'unreasonable and oppressive.' Rejecting defendant's argument that the Executive must first assert executive privilege to narrow the subpoenas, the District Court agreed with the President that 'it is undesirable as a matter of constitutional and public policy to compel a President to make his decision on privilege with respect to a large array of documents.' The court decided to narrow, on its own, the scope of the subpoenas to allow the Executive 'to consider whether to invoke executive privilege with respect to ... a smaller number of documents following the narrowing of the subpoenas.' This is but one example of the choices available to the District Court and the Court of Appeals in this case." Ibid., 44-45 (citations omitted).

(70.) The majority declined to hold that the Court of Appeals abused its discretion in not issuing the writ. "Instead, the Court of Appeals, relying on its mistaken reading of United States v. Nixon, prematurely terminated its inquiry after the Government refused to assert privilege and did so without even reaching the weighty separation-of-powers objections raised in the case, much less exercised its discretion to determine whether 'the writ is appropriate under the circumstances.'" Ibid., 46. While this supported a remand, it did not warrant a reversal.

(71.) Ibid., 45. In sending the case back, the Supreme Court offered a final word of guidance: "All courts should be mindful of the burdens imposed on the Executive Branch in any future proceedings. Special considerations applicable to the President and the Vice President suggest that the courts should be sensitive to requests by the Government for interlocutory appeals." Ibid., 47.

(72.) Ibid., 26. The Cheney ruling is not the first time the Supreme Court has allowed appellate-level mandamus to issue against a district court for actions construed by the Executive as judicial interference. In 1943, in Ex Parte Republic of Peru, 318 U.S. 578 (1943), the Supreme Court approved a writ of mandamus against the District Court for the Eastern District of Louisiana after it refused to release a vessel belonging to Peru which had been declared immune from suit by the Departments of State and Justice, in exercising its mandamus jurisdiction, the Supreme Court held: "Courts may not so exercise their jurisdiction, by the seizure and detention of the property of a friendly sovereign, as to embarrass the executive arm of the Government in conducting foreign relations.... This practice is founded upon the policy, recognized both by the Department of State and the courts, that our national interest will be better served in such cases if the wrongs to suitors, involving our relations with a friendly foreign power, are righted through diplomatic negotiations rather than by the compulsions of judicial proceedings." Ibid., 588-89. Still, Ex Parte Peru did not involve any explicit separation of powers rationales. It was, instead, based largely on the political embarrassment in foreign affairs principle.

(73.) The matter has been tentatively set for oral argument before the Court of Appeals, en banc, on January 27, 2005. In Re Cheney, 2004 U.S. App. LEXIS 19407, 2 (D.C. Cir. 2004). With the indictment of Kenneth Lay, any kind of interaction between White House and Enron officials raises allegations of questionable activity by the President and the Vice President. Litigating to keep NEPDG documents, which might link the White House with Enron executives, out of the public eye until after the 2004 presidential election prevented potential electoral problems.

(74.) Cheney v. District Court, 2004 U.S. LEXIS 4576, 46 (2004).

(75.) Affording the vice president the same privileges and immunities the president might have in a criminal proceeding is a f:ar stretch though. Indeed, following Vice President Spiro Agnew's criminal problems, both the solicitor general and the assistant attorney general independently concluded that the vice president was not shielded from indictment and prosecution to the degree the president was. See Griffin (2000).


Amar, Akhil Reed, and Neal Kumar Katyal. 1995. Executive privileges and immunities: The Nixon and Clinton cases. Harvard Law Review 108(January): 701-26.

Berger, Raoul. 1974. The president, Congress, and the courts. Yale Law Journal 83: 1111-59.

Bleich, Jeffrey L., and Eric B. Wolff. 1999. Executive privilege and immunity: The questionable role of the independent counsel and the courts. St. John's Journal of Legal Commentary 14(Summer): 15-50.

Fisher, Louis. 2004. The politics of executive privilege. Durham, NC: Carolina Academic Press.

Gibson, Gail. 2004. Justices refuse to order Cheney to release details of energy panel. Baltimore Sun, June 25, p. 1A.

Greenhouse, Linda. 2004. Justices' ruling postpones resolution of Cheney case. New York Times, June 25, p. A19.

Griffin, Stephen M. 2000. Presidential immunity from criminal process: Amateur hour at the Department of Justice. Widener Law Symposium 5(Winter): 49-77.

Isenbergh, Joseph. 1999. Impeachment and presidential immunity from judicial process. Yale Law & Policy Review 18: 53-109.

Lane, Charles. 2004. High court backs vice president. Washington Post, June 25, p. A1.

Rozell, Mark J. 2002. Executive privilege: Presidential power secrecy, and accountability. 2d ed., rev. Lawrence: University Press of Kansas.

Savage, David G. 2004. Court lets Cheney avoid disclosure. Los Angeles Time, June 25, p. A1.

Williams, Glenn T. 1997. Temporary immunity: Distinguishing case law opinions on executive immunity and privilege as the Supreme Court tackles an oxymoron. Nova Law Review 21(Spring): 969-1018.

Louis Klarevas it assistant professor of political science at the City University of New York--College of Staten Island. He would like to thank Lou Fisher for comments on a previous version.

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