CONSTITUTIONAL LAW SPRING 2008 – PROF. FISCHER
Outline for Class 18: Executive Power and Limits on Executive Power
I.
Central Themes: Executive Powers and Limits on Executive
Powers – formalist vs. functionalist interpretation
II.
Executive Privilege
A.
B.
C.
D.
E.
III.
What secrecy does executive privilege protect?
Does the Constitution mention executive privilege?
Constitutionality and scope of executive privilege: United
States v. Nixon (1974) [C p. 282]- is there executive
privilege; is it absolute?
Cheney v. U.S. District Court for the District of Columbia
(2004) [C p. 286]: requests for information in a civil case;
distinguished United States v. Nixon
Current dispute between President Bush and Congress
over executive privilege for White House officials who
are refusing to testify or produce documents in response
to congressional subpoenas as part of the investigation
into the 2006 firings of 9 U.S. Attorneys. On 2/14/2008
the House voted (over protests of many Republicans,
who walked out before the final vote) to issue contempt
citations against Chief of Staff Josh Bolten and former
White House counsel Harriet Miers. Normally
congressional subpoenas are enforced by the Justice
Department, but Attorney General Michael Mukasey
appears unlikely to pursue contempt charges against
White House officials because the Justice Department
has taken the view that they are protected by executive
privilege. How, if at all, can the House enforce the
contempt citations?
Presidential Immunity to Criminal and Civil Suits
A.
Criminal Prosecutions
 Can a former president be criminally prosecuted?
 Can an impeached president be prosecuted after leaving
office?
 Can a sitting president be criminally prosecuted?
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B.
Civil Actions
 Can a president be sued for injunctive relief while in
office? Mississippi v. Johnson (1866)
 Can a president or ex-president be sued for money
damages for conduct during term in office? Nixon v.
Fitzgerald (1982) [C p. 354]
 Can a president be sued for conduct prior to taking
office? Clinton v. Jones (1997) [C p. 357]
C.
Do other executive officials have any immunity in
lawsuits for damages?
D.
What about members of Congress? See Speech and
Debate Clause in Art. I § 6 barring them from being
“questioned in any other Place” for “any Speech or
Debate in either House.”
IV.
Impeachment Power
A.
Text:
 Article I § 2 cl. 5: “The House of Representatives . . . shall
have the sole Power of Impeachment”
 Article I § 3 cl. 6: “The Senate shall have the sole Power
to try all Impeachments”
 Article I § 3 cl. 7: “Judgment in Cases of Impeachment
shall not extend further than to removal from Office, and
disqualification to hold and enjoy any Office of honor,
Trust or Profit under the United States: but the Party
convicted shall nevertheless be liable and subject to
Indictment, Trial, Judgment and Punishment according to
Law.”
Article II § 4: “The President, Vice President and all civil
Officers of the United States, shall be removed from Office on
Impeachment for, and Conviction of, Treason, Bribery, or
other high Crimes and Misdemeanors.”
B.
What are High Crimes and Misdemeanors? Is the
Supreme Court likely to determine this issue? Why or why
not?
C.
What procedures must be followed when there is an
impeachment and removal proceeding? Is the Supreme
Court likely to determine this issue? Why or why not?
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Remember Nixon v. United States (1993) from Class 3 [C
p. 95].
D.
Impeachments and Serious Efforts to Impeach
Presidents
i. Andrew Johnson
ii. Richard Nixon
iii. Bill Clinton
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