Constitutional Law I
Immunities
April 28, 2006
Const’l Privileges and Immunities
Individual privileges & immunities
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5th Am: compulsory self-incrimination
14th Am: P/I clause (rights)
Government/officer privileges & immunities
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Speech & Debate Clause
Impeachment Clause
SoP Principles
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 Executive Privilege:
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Spring, 2006
Judicial inquiry interferes with Executive functions
Executive non-cooperation interferes w/ judicial function
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Statutory privileges & immunities
Federal
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Fed.R.Evidence: testimonial privileges
 E.g., marital privilege
 Tend to be absolute
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Substantive law: immunity from liability
 E.g., Civil Rights Statute, 42 USC § 1983
 Tend to be qualified (good faith required)
State
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Similar
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US v. Nixon
(1974)
Executive privilege
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Based on SoP
 Demanding evidence from president
(judicial inquiry into confidential
communications) (interferes) with
executive policy-making functions
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Type of privilege
 Nixon argues for absolute
 Also argues, if executive privilege is qualified, then
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Spring, 2006
He alone gets to determine when privilege can be invoked
 because assertion of privilege is a political question
But, if court gets to determine privilege, it should apply here
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Absolute vs. Qualified
Argument for absolute privilege
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Any judicial inquiry disrupts executive functions
Argument against absolute privilege
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Invoking privilege disrupts judicial function
 need to develop all relevant facts is necessary and
indispensable to adversary system of justice
 evidentiary privileges impede search for truth
Qualified priv. balances competing interests
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Can be invoked only to protect military,
diplomatic, and national security secrets
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Applying Qualified Priv.
President may invoke privilege
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presumptively available based on
claim that disclosure would harm national
interest
Burden rests on prosecutor to demonstrate
 president’s material is essential to justice
 doesn’t involve diplomatic, military, nat’l security
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in camera inspection by court to weigh claims
 only relevant & admissible evidence to be disclosed
 court to accord high degree of respect to President
Court decides whether privilege applies
not a political question
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 judicial balancing is fairly typical for privileges
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Immunities
SoP Basis
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liability discourages sound exercise of discretion
even trial itself interferes with lawful functions
Types of Immunity
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Absolute
 any action taken within scope of immunity
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Qualified
 actions taken in good faith are immune
Scope
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Office - any official act
Functional - only acts w/in specified function
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Absolute Immunity
President
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Unique position in constitutional scheme
 balance of individual rights against const’l structure
 Non-judicial remedies remain (impeachment)
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Scope
 office immunity
 every act undertaken within “outer perimeters of his
authority” (Nixon v. Fitzgerald)
 White: Absolute Office Immunity places pres. above law
 every suit while president (rejected in Clinton v. Jones)
 functional immunity
 immune only when performing certain functions
 Nixon’s firing of low-level employee perhaps not a
presidential function, but he had office immunity
Spring, 2006
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Qualified Immunity
Functional Immunity
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applies only when exercising functions for
which immunity is appropriate
 applies for both absolute and qualified immunity
 e.g., member of congress has absolute immunity
under speech and debate clause
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but only for legislative acts
when acting in other oficial capacity, no immunity
Good faith
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Official must be acting in good faith
 acts taken in derogation of clearly established law
are in bad faith - lose immunity
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Absolute vs. Qualified Immunity
Prosecutors/legislators/judges
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Absolute functional immunity
 Immunity for every act taken within specified function
 whether undertaken in good faith or not
 Acts taken outside specified function lose absolute
 but can still get qualified immunity
 Example: Prosecutor who advises police or participates in
police raid is acting outside her prosecutorial function
 She loses absolute prosecutorial immunity
 But gets same immunity as police (which is qualified)
Policy
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Immunity is product of structural interests
outweighing individual rights
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Clinton v. Jones
(1997)
Bases for Prez Office Immunity
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Unique position in const’l scheme
 Liability imposes burden on discretion
 Trial will distract Pres. from his duties
 Argues for postponement of trial
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Burden on Pres’ time is insufficient SoP basis to
justify impediment to judicial function
 judicial process need not compromise office of Pres.
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Trial ct. must be sensitive to unique demands
of President and accommodate his needs
 not precluded from affording temporary immunity,
just not automatically required to do so
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Cheney v. District Court (2005)
Underlying Claim
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Nat’l Energy Policy Dev. Group (NEPDG) had
private de facto members (oil co. execs/lobbyists)
Secret meetings violate Fed. Advisory Com Act (FACA)
Mandamus against Gov’t members to disclose records
Cheney’s Claim
Discovery order against VP violates SoP
 Unnecessary to invoke qualified privilege
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Probably would not meet Nixon v. US standard
Not even clear that VP entitled to qualified privilege
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Cheney v. District Court (2005)
Intermezzo - the Writ of Mandamus
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Original proceeding against gov’t official
 To require her to perform mandatory duty
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Sierra Club v. Cheney (in District Court)
Original proceeding against lower court
 Where appeal in ordinary course would be ineffective
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Cheney v. District Court (in Court of Appeals)
Interlocutory appeals not generally permitted in fed courts
 But see § 1292(b) certification
 And where right to relief is clear (abuse of discretion)
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Both cases - discretion of issuing court
 Although legal writ, often treated as equitable
Spring, 2006
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Cheney v. District Court (2005)
Should Ct. Appeals issue Mandamus?
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Doesn’t meet standard in ordinary case
 C of A refused to hear Cheney’s case on merits
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VP is not ordinary litigant
 “closest operational proximity to the President”
 Discovery order could compromise Pres’l confidences
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C of A must hear Cheney’s Mandamus case
 Even though executive privilege not invoked
Why doesn’t Nixon v. US control?
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Judicial need for evidence greater in crim. Case
 This is no ordinary civil case (corruption; illegality)
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Cheney v. District Court (2005)
Ginsburg dissent:
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Agrees SoP may require narrowing of discovery
But Cheney never asked for narrowing order
 Resisted all discovery on SoP grounds (rejected by SCt.)
Thomas concurrence/dissent:
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De facto member exception to FACA itself may
violate SoP
 Any judicial inquiry into executive functions is an
interference with the [unitary] executive
In re Cheney, 406 F.3d 723 (2005) (Randolph)
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De facto exception to FACA violates SoP
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Impeachment
No immunity (no judicial review)
Articles
Articles
Articles
Articles
Impeachment Seminar
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