Condoleezza Rice and Executive Privilege

Tue Mar 30 18:16:04 PST 2004

         The order is enforceable by civil and criminal contempt sanctions 
against Cheney individually -- even in an official capacity suit.  The 
grandaddy case on injunctions against officials in their official capacity 
is Ex parte Young.  The reason it has that name is that it arose on a 
habeas corpus petition; the Attorney General of Minnesota had been 
committed to the custody of the United States Marshall for contempt of court.

         That is the law.  The political reality is that it is very 
difficult for courts to fine or imprison public officials.  The use of the 
contempt power is more often a complicated game of bluff and threat; only 
very occasionally to officials get fined or imprisoned.  But the cases when 
it happens are mostly cases of direct and unambiguous defiance, and an 
order to release specific information doesn't leave nearly as much wiggle 
room as an order to improve conditions in a state prison.

At 04:40 PM 3/30/2004 -0500, you wrote:

>Assume the Supreme Court decides that VP Cheney has to disclose the names
>of those who attended the energy policy meetings and assume Cheney refuses.
>That would be the basis for impeachment but would it also be the basis for
>more focused action by court order? Congressional action? Of course, in the
>timing this year, the election would seem likely to occur and, of course,
>the actions by the President and VP would be evaluated by the voters in the
>election.
>
>Michael J. Zimmer
>Professor of Law
>Seton Hall Law School
>One Newark Center
>Newark, NJ 07102
>973.642.8833
>973.642.8194 fax
>
>
> 
>
>                       "Bryan 
> Wildenthal" 
>
>                       <bryanw at tjsl.edu>             To: 
> <Conlawprof at lists.ucla.edu>
>                       Sent 
> by:                      cc: 
>
>                       conlawprof-bounces at lis        Subject:  RE: 
> Condoleezza Rice and Executive Privilege
>                       ts.ucla.edu 
>
> 
>
> 
>
>                       03/30/04 04:30 
> PM 
>
> 
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> 
>
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>The silliness of these Washington DC pooh-bahs amazes me no end.
>
>Of course it's a "precedent" -- which plus 5 cents gets you a cup of
>coffee.  But, unlike a Supreme Court decision as to a lower court, it is no
>more and no less a BINDING "precedent" on this or any future President,
>than this or any future President wants it to be.
>
>Presidents undoubtledly have (and will assert when they want to and feel
>they can get away with it politically) a constitutional privilege not to
>submit to coerced testimony before Congress or a Congressional commission.
>I cannot imagine a court ever ordering a President to submit against his
>will, or Congress impeaching on such an issue, at least not that alone. (I
>am not speaking to the separate issue of subpoenas to testify or give
>evidence before a court, an issue on which I agree with US v Nixon and
>Clinton v Jones, i.e., that there is no executive privilege overriding that
>judicial function.)
>
>The American people also have a constitutional right to hold the President
>politically accountable for what they may conclude is an unjustified
>decision not to waive the privilege in any given circumstance.  This is a
>democracy after all, though King George the 2nd seems to forget that
>sometimes, and if he finally actually gets elected this year, I worry he
>may start forgetting it more often.
>
>As a former student of Condi Rice's, I am relieved this nonsensical
>stalling has ended for the time being, and I sincerely hope she does not
>commit perjury.  It's easy not to, of course. Just tell the truth!
>
>Bryan Wildenthal
>Thomas Jefferson School of Law
>
>-----Original Message-----
>From: conlawprof-bounces at lists.ucla.edu
>[mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Tom Grey
>Sent: Tuesday, March 30, 2004 8:45 AM
>To: Conlawprof at lists.ucla.edu
>Subject: Re: Condoleezza Rice and Executive Privilege
>
>
>
>As one of my colleagues says in faculty meetings, whenever this gambit is
>tried: "This won't set  a precedent -- and anyway, we've done it before."
>
>Mark Tushnet writes:
>
>The AP story reads, in part:  "The official said the decision is
>conditioned on the Bush administration receiving assurances in writing from
>the commission that such a step does not set a precedent, said the official
>speaking on condition of anonymity. It appeared the administration already
>had such assurances verbally in private and is confident it get them in
>writing."  I put aside a comment on the use of "verbally" in this story,
>and simply wonder what theory of "precedent" (based of course in practice,
>not in articulated principles) would suport the proposition that assurances
>from Commission A that an appearance would not set a precedent could
>constitute a precedent for Commission B -- or Congress, or a committee of
>Congress -- regarding appearances before it?
>
>
>Thomas C. Grey
>Sweitzer Professor of Law
>Stanford Law School
>tgrey at stanford.edu
>
>
>
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Douglas Laycock
University of Texas Law School
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