CONSTITUTIONAL LAW
SPRING 2008
Professor Fischer
Class 18: Executive Privilege and
Immunities
Feb 18 2008
Current dispute over executive
privilege
• House voted on
2/14/2008 to issue
citations for
contempt of
Congress against
Josh Bolten and
Harriet Miers
• How can Congress
enforce?
United States v. Nixon (1974) [C
p. 282]
• Majority by: Burger,
joined by: Douglas,
Brennan, Stewart, White,
Marshall,
Blackmun,Powell
• Recused: Rehnquist
(note that Burger,
Blackmun, and Powell
were also appointed by
Nixon)
• Picture is from April 1974
televised address: Nixon
explains his release of
edited versions of the
tapes.
Cheney v. U.S. District Court
(2004) [C p. 286]
• What did the Court
hold, if anything,
about executive
privilege in this
case?
• How, if at all, did
Justice Kennedy
find this case
differed from Nixon
• Note: Souter and
Ginsburg dissented
Nixon v. Fitzgerald (1982) [C p. 354]
• 5-4 decision. POWELL, J.,
delivered the opinion of the
Court, in which BURGER,
C.J., and REHNQUIST,
STEVENS, and
O'CONNOR, JJ., joined.
• BURGER, C.J., filed a
concurring opinion
• WHITE, J., filed a
dissenting opinion, in which
BRENNAN, MARSHALL,
and BLACKMUN, JJ.,
joined.
• BLACKMUN, J., filed a
dissenting opinion, in which
BRENNAN and
MARSHALL, JJ., joined.
Clinton v. Jones (1997) [C p. 357]
• Justice Stevens wrote
the opinion of the
Court
• Joined by: Rehnquist,
O'Connor, Scalia,
Kennedy, Souter,
Thomas, Ginsburg
Concurrence by:
Breyer
(a Clinton appointee)