Nixon Now: The Courts and the Presidency after Twenty-five Years

Minnesota Law Review

Volumn 83, Issue 5, 1999, Pages 1337-1401

  Paulsen, Michael Stokes ^a  

^a UNIVERSITY OF MINNESOTA LAW SCHOOL   (United States)

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EID: 0346684457     PISSN: 00265535     EISSN: None     Source Type: Journal    
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References (169)

1. 418 U.S. 683 (1974).
2. 28 U.S.C. §§591-599 (1994).
3. 487 U.S. 654 (1988).
4. 117 S. Ct. 1636 (1997).
5. The Supreme Court's decision in Clinton v. Jones obviously did not cause President Clinton's apparent perjury and obstruction of justice. These acts, and their discovery, led to the year-long investigation, impeachment, and trial in the Senate. Bill Clinton's acts in response to the Supreme Court's Jones decision were done of his own volition. Even on the assumption that Jones was wrongly decided, the subsequent damage to the Clinton presidency was done by Clinton, not by the Court.
6. See In re Grand Jury Proceedings, 5 F. Supp. 2d 21 (D.D.C. 1998) (President Clinton initially appealed the adverse ruling on his executive privilege claims, but then abandoned the claims when Independent Counsel Starr sought certiorari before judgment in the U.S. Supreme Court. See Peter Baker, Clinton May Drop Appeal on Privilege; Strategy Could Avert Supreme Court Review, WASH. POST, June 1, 1998, at Al; Clinton to Limit Legal Appeal; Executive Privilege Claim to Be Dropped, Cm. TRIE., June 1,1998, at 1.
7. See In re Lindsey, 148 P.3d 1100, 1102 (D.C. Cir.) (per curiam), cert, denied, 119 S. Ct. 466 (1998); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir.), cert, denied, 117 S. Ct. 2482 (1997). See generally Michael Stokes Paulsen, Who"Owns the Government's Attorney-Client Privilege?, 83 MlNN. L. REV. 473 (1998) (discussing issues presented by claim of attorneyclient privilege by government attorneys as against Independent Counsel grand jury subpoenas).
8. See In re Sealed Case, 148 F.3d 1073 (D.C. Cir. 1998), reh'g denied, 146 F.3d 1031 (D.C. Cir. 1998), stay denied, Office of the President v. Office of the Independent Counsel, App. No. 1-108,1998 WL 438524, at *1 (U.S. Aug. 4, 1998), and cert, denied, 119 S. Ct. 461 (1998).
9. Unlike President Nixon, however, President Clinton may nonetheless escape the full political consequences of his actions. In February 1999, the Senate declined to convict President Clinton by the constitutionally required two-thirds majority of the articles of impeachment brought by the House of Representatives, even though it appears that a substantial majority of senators agreed that Clinton in fact engaged in the conduct of which he was accused and for which he was impeached. A sufficiently large number of members of the Senate, comprised chiefly of members of Clinton's political party, took the position that the conduct in question, even if criminal, did not rise to the level of seriousness justifying conviction and removal from office of a President who retained substantial popular political support. See Trial of the President; Excerpts of Debate Comments; Senators Spell out Their Convictions, L.A. TIMES, Feb. 11, 1999, at A27 (excerpting debate testimony from Senators who voted to acquit because in then- view the conduct did not rise to the level of constitutional high crimes); The Senate Verdict; Excerpts of Vote Comments; Respect for Law, Defense of Presidency Cited As Impetus for Votes, L. A. TIMES, Feb. 13, 1999, at A22 (citing statements from Senators voting to acquit who explained that their decision was in large part because the American people continue to support President Clinton). President Nixon, by the time of his resignation, had lost the political support of the public and of substantial numbers of senators and representatives of his own political party. President Clinton has not completely escaped legal jeopardy and punishment, however. As this article goes to press, the federal district judge in the Jones litigation has held Clinton in contempt for"intentionally false testimony before the court in Clinton's deposition. Jones v. Clinton, No. LR-C-94290, 1999 WL 202909, at 11 (E.D. Ark. Apr. 12, 1999); see also id. at 7 ([Tlhe record demonstrates by clear and convincing evidence that the President responded to plaintiff s questions by giving false, misleading, and evasive answers that were designed to obstruct the judicial process.). Judge Wright imposed monetary sanctions and also referred the matter to Arkansas Bar disciplinary authorities. Id. at 10-12. In addition, President Clinton could face criminal prosecution after leaving office, and quite possibly even before leaving office. See infra note 113 and accompanying text.
10. See Nixon, 418 U.S. at 704-05. The strongest competitor for this honor is Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), hi which the Court declared unlawful the actions of President Truman's Secretary of Labor (Sawyer), at Truman's direction, hi seizing the nation's steel mills to avoid a strike. Though nominally directed to a cabinet officer, and not the President, Youngstown Sheet & Tube is the most prominent pure case of a judicial injunction directed at the executive, sustained by the U.S. Supreme Court, on an issue of constitutional law concerning the scope of the President's powers and prerogatives. The Court's opinion did not, as subsequently has become fashionable, directly assert judicial supremacy over a coordinate branch, but the Court did uphold the issuance of an injunction against an executive officer carrying out a presidential directive. The Court did not, except by implication, assert an executive duty to obey-though the implication is a very strong one. A standard example often cited for the proposition of judicial supremacy over the executive, and on which the Court relied in Nixon, is Marbury v. Madison. Marbury, however does not assert judicial supremacy over the President. Indeed, quite the contrary, Marbury explicitly denies any such claim to supremacy. The Court did not order the Jefferson administration to deliver to Mr. Marbury his commission as a justice of the peace, and Chief Justice Marshall's opinion expressly denied any judicial power to"intermeddlle] with a subject over which the executive can be considered as having exercised any control. 5 U.S. (1 Cranch) 137,170 (1803). Moreover, the reasoning supporting the Court's conclusion that the judiciary may not give effect to unconstitutional acts of Congress decisively refutes any proposition that one branch is supreme over the others in matters of constitutional interpretation.
11. See Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217, 241-45, 257-62 (1994).
12. See Nixon, 418 U.S. at 703-05.
13. See id at 707-14.
14. See id. at 694-97.
15. Cf. id. at 706 (Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection....). As Professor William Van Alstyne has argued, the implication of this passage is that in the presence of a claim of need to protect military, diplomatic, or sensitive national security secrets, the judicial rule is that the executive's determination must be accepted in the courts.
16. See William Van Alstyne, A Political and Constitutional Review of United States v. Nixon, 22 UCLA L. REV. 116,123 (1974).
17. See infra text accompanying notes 128-137. Congress possesses power under the Necessary and Proper Clause to prescribe a statutory rule of executive privilege in order to help the President carry into execution his powers, as Professor Prakash's outstanding contribution to this symposium sets forth at length. Saikrishna Bangalore Prakash, A Critical Comment on the Constitutionality of Executive Privilege, 83 MlNN. L. REV. 1143 (1999). Congress has authorized the Courts to recognize common law privileges. See FED. R. EVID. 501. Congress may create, or revise, a common law privilege, modifying whatever (nonconstitutional) judicial rule the courts create on the subject.
18. For a perceptive argument that, if this is the case, then an intraexecutive suit to compel presidential compliance with a subordinate's subpoena violates Article III, see Professor Kelley's contribution to this symposium. William K Kelley, The Constitutional Dilemma of Litigation Under the Independent Counsel System, 83 MlNN. L. REV. 1197 (1999).
19. See Nixon, 418 U.S. at 696.
20. See28U.S.C.§596(a)(1994).
21. My constitutional argument is in no way intended as an attack on Independent Counsel Kenneth Starr. Indeed, Stair's willingness to persist in his assigned legal task, despite great opposition by the President, the President's agents, the press, and the public, shows the importance of the value of independence in an"Independent Counsel. See infra note 157 and accompanying text.
22. See supra notes 4, 6-8 and accompanying text.
23. See Peter Baker & Susan Schmidt, Clinton Agrees to Testify for Grand Jury; Sources Say Lewinski Has Physical Evidence, WASH. POST, July 30, 1998, at Al.
24. See 145 GONG. REC. S1458-59 (daily ed. Feb. 12,1999) (recording a 4555 vote to convict on the perjury article of impeachment and a 50-50 vote to convict on the obstruction of justice article of impeachment).
25. See United States v. Nixon, 418 U.S. 683, 703-13 (1974).
26. Id. at 703, 705 (quoting Marbury).
27. Id. at 704.
28. See infra notes 34-37 and accompanying text.
29. See Nixon, 418 U.S. at 705.
30. 7d. at 703.
31. See supra note 10 and accompanying text.
32. 358 U.S. 1,18 (1958) (asserting that Marbury established the proposition"that the federal judiciary is supreme in the exposition of the law of the Constitution). See Paulsen, supra note 10, at 314-15 (Whatever the weight of the[ ] arguments against Calhoun-style nullification, they do not add up to a justification of federal judicial supremacy over the other branches of the federal government.).
33. Brown v. Board of Educ., 347 U.S. 483 (1954).
34. 369 U.S. 186 (1962).
35. 395 U.S. 486, 501-06, 517-18 (1969) (relief against House employees, but not against Members or House itself, was appropriate; declaratory relief was permissible regardless of the appropriateness of a coercive remedy). As noted above, see supra note 10, the only true precedent supporting the Court's sweeping statement in Nixon is Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), in which the Court held that President Truman's labor secretary lacked power to seize the nation's steel mills. But in Youngstown Sheet & Tube the Court did not issue an order directly to the President and did not issue a Cooper-like assertion of judicial supremacy over the President. See id. It simply declared its understanding of what the law was. The President obeyed, but the Court had not explicitly decreed that the President was constitutionally obliged to obey its decision. That rhetorical gambit did not appear in the Court's standard arsenal until six years later, in 1958, with Cooper.
36. THE FEDERALIST NO. 78, at 394 (Alexander Hamilton) (Garry Wills ed., 1982).
37. Respondent's Opening Brief at 48, United States v. Nixon, 418 U.S. 683 (1974) (No. 73-1766,1834).
38. Oral Argument at 60-62, Nixon (No. 73-1766,1834). I am indebted to the outstanding article of Professor William Van Alstyne, twenty-five years ago, for calling my attention to this passage in the oral argument. See Van Alstyne, supra note 14, at 123.
39. Nixon, 418 U.S. at 704-05 (citations omitted).
40. See U.S. CONST, art. Ill, §2, cl. 1; Paulsen, supra note 10, at 294-300.
41. See Essays of Brutus, No. XI, reprinted in 2 THE COMPLETE ANTIFEDERALIST §§2.0.138.-2.9.148 (Herbert J. Storing ed., 1981). Brutus argued, perhaps genuinely and perhaps with deliberate exaggeration, that the judiciary to be created by the new Constitution would be supreme over the elected branches in matters of constitutional interpretation, and that such a prospect would have the effect of concentrating power in that branch, at the expense of republican principles, the rights of the states, and ultimately individual liberty. It is interesting and instructive that The Federalist No. 78 is a rejoinder to the Essays of Brutus on the judicial power, explaining judicial review as an unexceptional and logical consequence of the coordinacy of the branches, least of all to be feared from the"least dangerous and weakest of branches, which needed life tenure in order to protect its independent judgments and would in any event be dependent on the executive branch for enforcement of its judgments. See infra note 58 and accompanying text; see also Paulsen, supra note 10, at 245-52.
42. The first serious post-enactment arguments in favor of judicial supremacy were advanced by northern state legislatures responding to the Virginia and Kentucky resolves in the late 1790s-more than a decade after the Philadelphia convention-and took place in the context of a bitter political fight between defenders and opponents of the Adams administration over the constitutionality of the Alien and Sedition acts. See, e.g., 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION, As RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA, IN 1787, at 533 (Jonathan Elliot ed., 2d ed. 1891) To the extent this post-enactment legislative history is of any weight at all in determining the original meaning of the Constitution on the question of judicial supremacy, it is surely significant that the election of 1800 appeared decisively to repudiate the"Federalist (that is, pro-Adams), judicial supremacist view.
43. 1 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES §375 (1833). For discussion of Story's views as a secondgeneration theory that strayed from the original understanding of judicial review, see Paulsen, supra note 10, at 311-20.
44. 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9,487). See generally Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 CARDOZOL. REV. 81 (1993).
45. See United States v. Nixon, 418 U.S. 683, 704 (1974).
46. The arguments made in this paragraph of the text, and in those that follow, are developed at great length in Paulsen, supra note 10. I present here a greatly compressed account of the evidence.
47. THE FEDERALIST No. 49, at 255 (James Madison) (Garry Wills ed., 1982).
48. See THE FEDERALIST No. 78, supra note 34, at 394; see also infra notes 57-66 and accompanying text.
49. THE FEDERALIST No. 51, at 261 (James Madison) (Carry Wills ed., 1982).
50. See THE FEDERALIST No. 49, supra note 45, at 255.
51. THE FEDERALIST No. 51, supra note 47, at 261.
52. Id.
53. Id. at 262.
54. Id. at 263.
55. THE FEDERALIST NO. 78, supra note 34, at 394.
56. See id.
57. Essays of Brutus, No. XI, reprinted in 2 THE COMPLETE ANTIFEDERALIST, supra note 39, §§2.9.138, 2.9.139; see also JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 186-87 (1997); CARRY WILLS, EXPLAINING AMERICA: THE FEDERALIST 126-36 (1981).
58. See Paulsen, supra note 10, at 246.
59. For an excellent study, see SYLIVA SNOWISS, JUDICIAL REVIEW AND THE LAW OF THE CONSTITUTION (1990).
60. THE FEDERALIST NO. 78, supra note 34, at 394.
61. Id.
62. id. at 395.
63. Id.
64. Id.
65. I will address Marbury presently. See infra text accompanying notes 68-72.
66. The general point is most succinctly expressed by James Wilson, probably the second most influential framer at the convention (after Madison), in his famous Lectures on Law (1790-1792): The supreme power of the United States has given one rule: a subordinate power in the United States has given a contradictory rule: the former is the law of the land: as a necessary consequence, the latter is void, and has no operation. 1 THE WORKS OF JAMES WILSON 330 (Robert Green McCloskey ed., 1967).
67. THE FEDERALIST No. 78, supra note 34, at 394.
68. Id. Professor Steve Calabresi, in his insightful Comment on this paper for this symposium, is unwilling to accept the proposition that the President's coordinate power of constitutional interpretation includes a right to decline to enforce judicial judgments that the President concludes, hi good faith, are founded on an incorrect interpretation of the Constitution or other law. See Steven G. Calabresi, Caesarism, Departmentalism, and Professor Paulsen, 83 MlNN. L. REV. 1421, 1425 (1999). (In the end, however, Calabresi comes close to conceding exactly this proposition, although wishing, sensibly enough, to confine its application to extreme or at least very clear cases of judicial error, see id. at 1425, 1433 & n.54, a concession which in principle gives up the game, as I will discuss momentarily.)
69. Professor Calabresi offers essentially three arguments for judicial supremacy as to judgments. All of them strike me as flawed in important respects. First, Calabresi argues that the traditional bar on the judiciary's issuance of advisory opinions implies a more general principle that there must be a substantial likelihood that judicial opinions will have some real world effect, ici. at 1426, and that [n]o such likelihood could exist if... the President ha[d] the power independently to make his own de novo decision about whether any judicial judgment was constitutional or not before he executed it. Id. I think this overreads, and overextends, the no advisory opinion doctrine. That doctrine is properly understood as a prohibition on courts is-suing legal opinions while not engaged in the judicial task of deciding actual cases or controversies. As I have set forth at greater length elsewhere, however, the fact that a judicial decree does not control the Article II executive in the exercise of his independent constitutional interpretation does not mean that such a decree is not a proper exercise of courts' Article III powers. The opinion is not advisory in the sense in which advisory opinions are thought improper, i.e., that they do not involve the genuine application of the Article III power of rendering a judgment in a case or controversy. See Paulsen, supra note 10, at 303-06 (discussing Hayburn's Case).
70. Second, Calabresi remarks (almost in passing) that everybody has always understood the judicial power as being a power to issue binding judgments. See Calabresi, supra, at 1426. This point is not proved by any stretch of the imagination. To be sure, such a position is widely assumed today, but the historical evidence for it is remarkably weak; and Hamilton's statement in The Federalist No. 78 that the judiciary must depend on the executive for the efficacy of its judgments seems a powerful refutation of this assumption. See Paulsen, supra note 10, at 251. Calabresi's only refutation of The Federalist No. 78 on this point is to disparage it as Alexander Hamilton's loose language! This is a rather surprising position for Calabresi, a noted originalist, to take, especially when he is arguing about historical understanding of the meaning of the judicial power. Ill take Hamilton and The Federalist No. 78 over assumptions from silence any day, especially when the logic of Hamilton's argument for judicial review (and that of James Wilson and John Marshall, and numerous others) implies a fully coordinate power of executive review, with all that that implies. See Paulsen, supra note 10, at 244-55.
71. Third, Calabresi argues that fully coordinate, co-equal executive review would leave the courts ciphers, see Calabresi, supra, at 1432 (federal courts without the power to execute theur judgments would be ciphers), and make Presidents democratic Caesars, id., or, switching dictators, Napoleonic strongm[e]n, id. at 1431. But the fact that an executive power not to enforce judgments that the President believes are founded on unconstitutional usurpations or constructions of power by the judiciary might weaken the present political power of courts, or be a fearsome power to vest in an evil and willful chief executive, does not mean the proposition is wrong as an original matter. The potential abuse of a power does not disprove the existence of such a power. In addition, there is much historical evidence that the framers regarded the judiciary as least dangerous because it had the least power and thus the least ability to force its constitutional pretensions on the other branches. See Paulsen, supra note 10, at 300-03. (Professor Lawson and Mr. Moore make the same argument as Professor Calabresi, see Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 IOWA L. REV. 1267, 1325 (1996), which can be met with the same rejoinder.) To be sure, executive review, unchecked by the other branches, or divorced from a practice of executive restraint and a restrained, originalist interpretive method, would be a dangerous thing. But I have set forth these checks and restraints at length. See Paulsen, supra note 10, at 321-42. Use of the name Caesar is not a sufficient rebuttal. Finally, while it is true that, under this theory, a new President can change executive branch constitutional interpretations suddenly and radically and thereby alter the constitutional equilibrium, the same can be said of changes in the composition of the courts. Again, this objection at most furnishes an argument for a theory of executive restraint and principled, text-based constitutional interpretation-a position I have advanced in conjunction with the larger theory. See id. at 331-43. (Changes in administration can radically change other policies, too, and some of those might be of much more consequence to the nation than differences between subsequent administrations' positions on questions of constitutional interpretation.)
72. In the end, however, Calabresi's (and Lawson & Moore's) concession that the President rightfully possesses the power to refuse to enforce a clearly wrong judgment of the courts gives up the point in principle. See Calabresi, supra, at 1425, 1433 & n.54; Lawson & Moore, supra, at 1324-26. Calabresi has to make this concession of course; otherwise, the courts would concededly have the power to order anything they like, which eviscerates the departmentalist position to which Calabresi (rightly) clings in every other respect. See Paulsen, supra note 42, at 83 (arguing that every attempted middle ground position attempting to reconcile the premises of judicial supremacy or interpretive coordinacy ultimately collapses into one of the two polar cases). But that gives up the middle ground game: as I challenged Professor Calabresi during the question-and-answer session of our panel, is Roe v. Wade a case of clear constitutional error? If yes, his position (and Professor Lawson's) collapses into mine. If no, then the notion of clear error has little content and Calabresi's position collapses into complete judicial supremacy over the executive, (except, apparently, in tune of Civil War). See Calabresi, supra, at 1427, 1430 & n.44. In the end, Professor Calabresi and I are just arguing about which judicial decisions are clearly wrong, as opposed to merely wrong, and engaged in interpersonal comparisons of what degree of certainty ought to be required before acting on one's best judgment as to the meaning of the Constitution. (Really, Steve, the only clear error by the courts, justifying presidential noncompliance or nonenforcement, was Taneys decision in Ex Parte Merrymanl I can think of a good dozen more clearly and horribly wrong judicial interpretations of the constitution-Dred Scott, Plessy, Lochner, Roe, Casey-can't you?) To borrow a phrase, Calabresi has conceded the point in principle. We are now just haggling over the price.
73. Hamilton's observation that the judiciary must depend on the executive for the efficacy of its judgments at least implies a power of executive review-a power of the President not to enforce judicial decrees he sincerely believes are contrary to law and contrary to his duties under the law. Such a conclusion is consistent with the rest of The Federalist No. 78. If the President were constitutionally obliged to follow the commands of the courts, Hamilton's argument that the liberty of the people can never be endangered from the courts so long as the judiciary remains truly distinct from both the legislative and executive, THE FEDERALIST No. 78, supra note 34, at 394, falls apart, for the power of the judiciary then would be fused with the power to execute the laws.
74. See Paulsen, supra note 10, at 248.
75. Marbury v. Madison, 5 U.S. (1 Cranch) 137,170 (1803).
76. United States v. Nixon, 418 U.S. 683, 703 (1974).
77. See generally ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW (1990) (advancing a judicial philosophy of originalism and judicial restraint as an essential limitation on the power of courts that exercise supremacy in constitutional interpretation);
78. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH.- THE SUPREME COURT AT THE BAR OF POLITICS (2d ed. 1988) (defending the passive virtues of decisionavoidance and justiciability limitations on the Court's decisionmaking, as a necessary method for the judiciary to conserve its political capital and avoid getting out too far in front of the political branches). Both Bork and Bickel are concerned with how judicial supremacy should be exercised, not with whether judicial supremacy is the correct starting point. Both assume that it is.
79. See Nixon, 418 U.S. at 704 (stating that the judicial power to say what the law is can no more be shared than the President's veto power).
80. THE FEDERALIST NO. 51, supra note 47, at 262-63.
81. Id.
82. See supra text accompanying note 36.
83. See Nixon, 418 U.S. at 687 & n.2. The Court dismissed as improvidently granted its writ of certiorari addressing this issue, on the ground that we find resolution of this issue unnecessary to resolution of the question whether the claim of privilege is to prevail. Id. at 687 n.2.
84. Id. at 701 (explaining hearsay rule's exception for statements of coconspirators against each other, including declarations of coconspirators who are not defendants in the case on trial).
85. Id. at 689, 700.
86. Id. at 701 n.14.
87. Id. at 713-14 (emphasis added) (quoting United States v. Burr, 25 F. Gas. at 192).
88. Oral Argument at 60-62, United States v. Nixon, 418 U.S. 683 (1974) (No. 73-1766,1834); see supra text accompanying note 36.
89. The Reagan administration attempted this, in the infamous dispute over congressional subpoenas of EPA documents that eventually led to the investigation producing the Morrison v. Olson decision. See United States v. House of Representatives of the United States, 556 F. Supp. 150 (D.D.C. 1983); see also Morrison v. Olson, 487 U.S. 654, 700 (1988) (Scalia, J., dissenting) (opining that the District Court was correct not to attempt to resolve the dispute).
90. See supra text accompanying note 36.
91. President Clinton was not in a position to resist judicial rejection of his claims of privilege and immunity in 1998, for similar reasons: the facts and circumstances strongly suggest that Clinton invoked executive privilege and other privileges for corrupt reasons-hiding his own wrongdoing-rather than genuinely to protect the constitutional prerogatives of the Presidency. In light of that, defiance of the Court's holdings-by, say, ordering aides not to appear before the grand jury-would have been politically untenable. In addition, having litigated and lost the privilege battles in the courts would have made any claim by Clinton that the courts' holdings did not matter politically unacceptable for that reason as well. Finally, Clinton litigated his claims of privilege in the shadow of Nixon, in two senses: First, the litigation was governed by the legal precedent of Nixon concerning the scope of executive privilege-a precedent unfavorable to the executive. See infra Part II. Second, the litigation was governed by the political precedent of the Tapes Case: a President whose actions are themselves the subject of inquiry must abide by the courts' decisions concerning asserted privileges to withhold evidence rele-vant to that inquiry.
92. I will use President Jefferson as the primary example here, though the point could be expanded upon by discussion of President Jackson and President Lincoln as well. In brief, Jackson did not treat the Marshall Court's upholding of the constitutionality of the Bank of the United States as controlling his exercise of the constitutional power of the veto. See Paulsen, supra note 10, at 259. Lincoln did not obey Taneys order in the Merryman case. See Paulsen, supra note 42, at 95. Even more important are the cases Lincoln did not allow to become judicial decisions, such as the constitutionality of secession, the validity of the North's suppression of the insurrection, the multitude of questions concerning executive power under such circumstances, and the constitutionality of the Emancipation Proclamation. Sometimes it's better not to ask the courts for their opinion or permission.
93. See Paulsen, supra note 10, at 307-08.
94. For a fascinating discussion of the intricacies and lessons of the Burr case, see Professor John Yoo's contribution to this symposium. John C. Yoo, The Burr Trial, United States v. Nixon, and Presidential Power, 83 MlNN. L. REV. 1435 (1999). I have profited much from Professor Yoo's discussion of the history and agree with virtually all of his conclusions. As the discussion in the text indicates, however, I read the evidence somewhat more strongly in favor of an understanding by President Jefferson that the Constitution does not require the President to obey the orders of the judiciary with respect to determinations of the scope of the President's constitutional powers. In my view, Jefferson did not fight to the finish for this principle in the Burr case because there was no practical reason not to provide the letters in question and two powerful reasons to provide them: First and foremost, Jefferson wanted Burr hung. Second, he did not want to furnish Burr (or Marshall) either a diversion or a pretext; quite the reverse, if Marshall were to steer the trial to acquittal, Jefferson hoped at least to profit politically from that undesirable outcome. See Yoo, supra, at 1441-42 (discussing Jefferson's political objectives).
95. United States v. Burr, 25 F. Gas. 187, 193 (C.C.D. Va. 1807) (No. 14,694) (Mr. Hay presented a certificate from the president, annexed to a copy of Gen. Wilkinson's letter, excepting such parts as he deemed he ought not to permit to be made public.).
96. Many Presidents have provided testimony in judicial proceedings. See Clinton v. Jones, 117 S. Ct. 1636, 1649-50 (1997) (describing testimony provided by sitting Presidents both voluntarily and in response to court orders). In July 1998, President Clinton agreed voluntarily to testify before a grand jury, and Independent Counsel Starr thereupon withdrew a subpoena requiring Clinton to appear, but it is difficult to believe that Clinton's voluntary appearance was done because Clinton wished to cooperate with a judicial proceeding he supported on the merits. In this case, it appears more that Clinton did not wish to fight the subpoena on constitutional grounds, at great political cost, when it was clear (under Nixon) that he could not win.
97. Others have made an argument similar to Nixon's argument in support of President Clinton's claim to immunity from suit while in office in the Clinton v. Jones case-i.e., that the Constitution requires courts to grant the President immunity from private-capacity civil litigation while he holds office. See, e.g., Akhil Reed Amar & Neal Kumar Katyal, Executive Privileges and Immunities: The Nixon and Clinton Cases, 108 HARV. L. REV. 701, 718 (1995).
98. Letter from Thomas Jefferson to George Hay (June 20, 1807), in 10 WORKS OF THOMAS JEFFERSON 403-04 (Paul Leicester Ford ed., 1905).
99. Letter from Thomas Jefferson to Mrs. John Adams (Sept. 11,1804), in 10 WORKS OF THOMAS JEFFERSON, supra note 91, at 89.
100. 117 S. Ct. 1636 (1997).
101. Id.
102. In re Lindsey, 148 F.3d 1100 (D.O. Cir.), cert, denied, 119 S. Ct. 466 (1998); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir.), cert, denied, 117 S. Ct. 2482 (1997).
103. In re Sealed Case, 148 F.3d 1073 (B.C. Cir. 1998), reh'g denied, 146 F.3d 1031 (D.C. Cir. 1998), stay denied, Office of the President v. Office of the Independent Counsel, App. No. 1-108, 1998 WL 438524, at 1 (U.S. Aug. 4, 1998), cert, denied, 119 S. Ct. 461 (1998).
104. See generally COMMUNICATION FROM INDEPENDENT COUNSEL KENNETH W. STARR, H.R. DOC. 105-310 (1998). The issues concerning the likely criminality of President Clinton's actions have been so thoroughly discussed in so many sources that extensive citation of the debate is unnecessary. Nor do I wish to add to that literature here. Suffice it to say that there is substantial evidence that could support a determination of actual criminality, and my discussion in the text frequently assumes familiarity with such evidence and the inferences that most reasonable people have drawn concerning Clinton's conduct. The reference to Clinton's likely crimes is not meant to be contentious or provocative, but as a shorthand for the most probable generally accepted public judgment about the true state of the facts.
105. For discussion of the attorney-client privilege issues in the government context, and the responsibilities of government lawyers to report information concerning possible criminal acts by government officials to the appropriate federal law enforcement authorities, notwithstanding a sense of personal loyalty to the particular officeholders or employees involved, see Paulsen, supra note 10; and Michael Stokes Paulsen, Hell, Handbaskets, and Government Lawyers: The Duty of Loyalty and Its Limits, 61 LAW & CONTEMP. PROBS. 83 (1998).
106. 17 U.S. (4 Wheat) 316 (1819); see also Clinton v. Jones, 117 S. Ct. at 1642 n.13:
107. Because the Supremacy Clause makes federal law "the supreme Law of the Land," Art. VI, cl.2, any direct control by a state court over the President, who has principal responsibility to ensure that those laws are "faithfully executed," Art. II, §3, may implicate concerns that are quite different from the interbranch separation of powers questions addressed here.
108. Still, any conclusion that a state grand jury indictment of a sitting President would be unconstitutional seems too strong: What of the case where a sitting President commits rape or first degree murder, but no federal crime? Would a state grand jury really be constitutionally barred from indicting him? The most likely answer is that principles of federalism would preclude a state from taking any physical action-arrest, imprisonment-against the President without the cooperation or acquiescence of the federal government. Specifically, if Congress does not impeach and remove the President for committing rape, murder, armed robbery, embezzlement of private funds, burglary, or some other serious felony (and several defenders of President Clinton have advanced the rather bracing argument, whether sincerely or for the present case only, that the impeachment power does not extend to removal of a president for commission of felonies in his "private capacity"), it may be that the President's refusal to appear, defend, or be bound by a judgment of conviction renders any such state criminal proceeding ineffectual as a practical matter. So long as the President retains the executive power of the United States government, a state court's criminal process against him is ineffective. Whether this structural reality ought to require a state court judge to dismiss an indictment at the outset is a more troubling proposition. The practical resolution probably should be that the state grand jury legitimately may issue an indictment but the President legitimately may refuse to appear if doing so would interfere with the operation of the executive branch of government.
109. The state courts are without constitutional power to compel the President's submission to their judicial authority while he is in office and the President is without constitutional power to insist that the indictment be dismissed. (He may not even grant pardons for state law offenses.) Thus, a state grand jury's criminal indictment of a sitting President, if otherwise consistent with constitutional requirements, stands as a state's expression of the importance of its interest in enforcement of its criminal law-kind of a "free speech" interest in pointing out that the President is acting unlawfully, not altogether different in character from the Virginia and Kentucky Resolves' condemnation of an unconstitutional act of Congress. But the state's criminal law probably cannot actually be enforced against a sitting President, without the cooperation of Congress through the impeachment power.
110. See infra Part III.
111. U.S. CONST, art. I, §3, cl. 7.
112. Id.
113. 117 S. Ct. at 1649.
114. Id. at 1648-49.
115. W. at 1651.
116. Id.
117. See Don Van Natta, Jr., House Prosecutors Compare Clinton to Judges Who Lied and Were Ousted, N.Y. TIMES, Jan. 17,1999, §1, at 26 (discussing the Senate convictions of Judge Walter Nixon, who was found guilty of lying before a federal grand jury prior to impeachment, and of Judge Alcee Hastings, who had been acquitted of bribery in state court).
118. I discuss (in general terms) the scope of the impeachment power below. See infra text accompanying note 158.
119. To be sure, the President possesses the power to grant pardons for federal crimes. While some have argued that the pardon power does not permit a president to pardon himself, see, e.g., Brian C. Kalt, Note, Pardon Me?: The Constitutional Case Against Presidential Self-Pardons, 106 YALE L.J. 779 (1996), the dominant view is that the President's pardon power is plenary. In any event, however, the bare existence of a pardon power does not confer an immunity from indictment or prosecution. It just means that the indictment or prosecution could be negated in the event the President were in fact to grant himself a pardon.
120. The discussion in the text is not a prediction of what the Supreme Court would hold if presented with the issue today. Rather, my argument is that the logical implications of Nixon and Clinton (combined with Morrison v. Olson, 487 U.S. 654 (1988)) suggest this outcome. Courts, of course, do not always follow the logical implications of their prior holdings. It follows, almost a fortiori, from the argument in the text, that the courts may subject a President to contempt sanctions for abuse of the judicial process, whether or not the acts constituting such abuse are also punishable as crimes. Once again, the Clinton situation has become the leading precedent on this point. Jones v. Clinton, No. LR-C-94-290,1999 WL 202909 (E.D. Ark. Apr. 12,1999).
121. See supra notes 5-9 and accompanying text.
122. See supra note 21.
123. See Don Van Natta, Jr., Starr Is Weighing Whether to Indict Sitting President, N.Y. TIMES, Jan. 31,1999, at Al.
124. Some supporting evidence for these premises is contained in Paulsen, supra note 10, at 228-40, 252-57.
125. United States v. Nixon, 418 U.S. 683, 711 (1974) ("Nowhere in the Constitution, as we have noted earlier, 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."). Writing soon after the Nixon case was decided, Professor William Van Alstyne argued that, aside from some "very narrow zone of implied power without which [the President] would be quite unable to perform his express duties at all," executive privilege is a function of Congress's powers under the Necessary and Proper Clause. Van Alstyne, supra note 14, at 118-19. There is much to Van Alstyne's argument, but it shortchanges considerations of executive branch autonomy flowing from the Constitution's structural separation of the branches. As I argue presently, however, that is a matter to be determined by the give-and-take among the branches-the executive branch fighting for its view against Congress and the courts. I agree with Van Alstyne to the extent his argument suggests that the Constitution does not supply a rule concerning the proper scope of executive privilege and that the courts therefore cannot properly find as a rule of law that the President possesses a constitutional privilege any broader than that which is strictly necessary to perform his duties. Professor Saikrishna Prakash, in his contribution to this symposium, makes a very similar argument. See Prakash, supra note 15. Professor Prakash emphasizes even more strongly than Professor Van Alstyne that the usefulness and utility of executive privilege as a means for the effective carrying out of executive power does not itself make it a constitutional power of the President; rather, it suggests that the privilege falls solely within Congress's powers under the Necessary and Proper Clause. The difference between Prakash's and Van Alstyne's perspective and mine is that I do not see executive privilege as a "power" of government at all, but an immunity of the President from the powers of other branches. Executive privilege is not a coercive power with which the President can "do" something to someone else. It thus does not seem to me the sort of thing that Congress has power to control as a means of "carrying into execution" executive powers. It is, rather, a privilege-a defensive shield-that flows from the separation of powers and the autonomy of each branch within its sphere. If one accepts this view of what executive privilege is-not a power, but a privilege-one can accept all of Professor Prakash's arguments in principle about the power of Congress to control the incidental means for "carrying into execution" the executive powers of Article II and still not accept his conclusion that executive privilege lacks a constitutional basis.
126. See Nixon, 418 U.S. at 711-13. The signal that a mushy balancing test is coming comes in the opening words of the paragraph that starts to explain it: "In this case we must weigh...." Id. at 711. For the Court's full test, see infra text accompanying note 125.
127. Nixon v. United States, 506 U.S. 224, 228 (1993) (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)).
128. Id.
129. I have written elsewhere that the "textual commitment" and "absence of judicially discoverable standards" branches of the political question doctrine are not true "nonjusticiability" doctrines but in actuality are two different substantive holdings. See Michael Stokes Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-seventh Amendment, 103 YALE L.J. 677, 713 (1993);
130. see also Louis Henkin, Is There a "Political Question" Doctrine?, 85 YALE L.J. 597, 600-01 (1976). A decision holding that resolution of a particular issue is committed to another branch is a substantive ruling on the meaning of the Constitution: the Constitution supplies a rule, and that rule is that the decision lies within the exclusive province of another branch. Cf. Nixon v. United States, 506 U.S. at 228. A decision finding a "lack of judicially discoverable and manageable standards" is also a substantive ruling on the meaning of the Constitution: the Constitution supplies no rule of law, and so decision of the case depends on some other source of law or on some baseline default rule (such as that the challenged action is not disturbed by the courts). See Paulsen, supra, at 713 & nn. 124-27. In the case of a claim of executive privilege, there is no basis for choosing between a baseline default rule that the privilege claim succeeds and a baseline rule that the Constitution fails to supply a rule invalidating the issuance of compulsory judicial process, so that the privilege claim fails.
131. Baker, 369 U.S. at 217; accord Powell v. McCormack, 395 U.S. 486, 518-19 (1969); INS v. Chadha, 462 U.S. 919, 941 (1983); United States v. Munoz-Flores, 495 U.S. 385,389-90 (1990).
132. So explicated, it is not clear that my position is radically different from Professor Van Alstyne's and Professor Prakash's at all, see supra note 115: the text of the Constitution supplies no rule of law for courts to apply concerning executive privilege, and courts may not in the name of the Constitution infer such a rule and apply it to trump other applicable substantive law providing for compulsory process.
133. See FED. R. EVID. 501.
134. On accommodation, in this sense, see Paulsen, supra note 10, at 33740; see also id. at 332-37 (discussing the idea of "deference" as distinguished from "accommodation").
135. Compare Hoe v. Wade, 410 U.S. 113 (1973). Roe and Nixon, the two most important constitutional decisions of the 1970s, resemble one another in methodology: a constitutional "principle" is inferred, at a highly abstract level of generality; the Court then fashions a highly specific, quasi-legislative "test" to implement this principle; finally, that test is read back into the constitutional text as if the text actually stated such a rule. See also Lemon v. Kurtzman, 403 U.S. 602 (1971) (similar methodology for Establishment Clause issues).
136. United States v. Nixon, 418 U.S. 683, 711-13 (1974) (footnotes omitted) (cynical commentary added).
137. See Swidler & Berlin v. United States, 118 S. Ct. 2081, 2086-87 (1998) (rejecting argument that attorney-client privilege will not be greatly impaired because of the limited nature of proposed exception where client is deceased and there is a demonstrated substantial need for the information in a criminal proceeding). [A] client may not know at the tune he discloses information to his attorney whether it will later be relevant to a civil or a criminal matter, let alone whether it will be of substantial importance. Balancing ex post the importance of the information against client interests, even limited to criminal cases, introduces substantial uncertainty into the [attorney-client] privilege's application. For just that reason, we have rejected use of a balancing test in defining the contours of the privilege. Id. at 2087. For an analysis of the Swidler & Berlin case, see Michael Stokes Paulsen, Dead Man's Privilege: Vines Foster and The Demise of Legal Ethics (Nov. 15, 1998) (unpublished manuscript, on file with the Minnesota Law Review). While I believe that Swidler & Berlin was incorrectly decided, the argument against ex post balancing and uncertainty is a strong one and persuasively (although perhaps unintentionally) refutes United States v. Nixon on this score.
138. See infra note 128 (discussing cases).
139. The crime-fraud exception to the attorney-client privilege generally permits the party seeking to invoke the exception to obtain in camera inspection by a court upon "'a showing of a factual basis adequate to support a good faith belief by a reasonable person' that in camera review ... may reveal evi-dence to establish the claim that the crime-fraud exception applies." United States v. Zolin, 491 U.S. 554, 572 (1989); see also In re Sealed Case, 107 F.3d 46, 50 (B.C. Cir. 1997) (discussing standard necessary, upon in camera review, to establish the crime-fraud exception: "The government satisfies its burden of proof if it offers evidence that if believed by the trier of fact would establish the elements of an ongoing or imminent crime or fraud."); In re Sealed Case, 754 F.2d 395, 399 (D.C. Cir. 1985); In re Marc Rich & Co. v. United States, 731 F.2d 1032, 1039 (2d Cir. 1984) (framing test as one of "probable cause to believe that a crime or fraud had been committed and that the communications were in furtherance thereof).
140. Compare this formulation with Wigmore's classic formulation of the attorney-client privilege: [1] Where legal advice of any kind is sought [2] from a professional legal adviser in his capacity as such, [3] the communications relating to that purpose, [4] made ha confidence [5] by the client, [6] are at his instance permanently protected [7] from disclosure by himself or by the legal adviser, [8] except the protection be waived. 8 WlGMORE ON EVIDENCE §2292, at 554 (John T. McNaugton ed., 1961). The courts have power to adopt the version of executive privilege pro-posed in the text as a matter of the common law of executive privilege to be applied in federal courts. (They can do this whether or not Nixon's constitutional holding is rejected. To the extent my proposed common law formulation is broader, it does not contradict Nixon, but expands on it.) By the same token, Congress has power (under the Necessary and Proper Clause) to adopt such a broadened standard for executive privilege claims, whether or not the courts adhere to Nixon as setting a constitutional floor. To the extent that executive privilege is thought to exist purely as a matter of judicial common law development, of course, Congress may displace judicial doctrine with whatever rule it thinks most appropriate.
141. 418 U.S. at 701.
142. Zolin, 491 U.S. at 572 (citation omitted).
143. The ending of the story is worth retelling briefly, because it again contrasts so sharply with the events involving President Clinton twenty-five years later. (I am indebted to Professor Van Alstyne's article once again for this account of events. See Van Alstyne, supra note 14, at 127-30.) Following the Supreme Court's decision in the Nixon Tapes Case, the mandate issued quickly and the case was returned to Judge Sirica in the District Court for in camera inspection of the subpoenaed tapes. Sirica directed Nixon's personal lawyer, James St. Glair, personally to listen to the subpoenaed tapes (quite possibly to assure that there would not be any new eighteen-and-a-half minute gaps). See id. at 128-29. I turn to Van Alstyne's account: On Monday, August 5th [1974], the full consequences linked with these quickening developments became apparent when the President admitted that he had previously misstated the extent of his knowledge of the Watergate burglary, that he had in fact attempted to impede the F.B.I, inquiry, and that he had knowingly withheld this in-
144. See In re Lindsey, 148 F.3d 1100, 1106 (D.O. Cir. 1998) (per curiam), cert, denied, 119 S. Ct. 466 (1998) (noting that several of the conversations on which Deputy White House Counsel Bruce Lindsey invoked attorney-client privilege did not involve Lindsey acting in his capacity as an attorney, but concerned political or policy discussions).
145. After Clinton had filed a notice of appeal from the district court's decision rejecting both executive and attorney-client privilege in the combined Lindsey and Blumenthal cases, the Office of Independent Counsel petitioned the Supreme Court for a writ of certiorari before judgment. At that point, probably to lessen the sense of importance of the case and discourage granting of the writ, Clinton abandoned the executive privilege claim. See Paulsen, supra note 7, at 477.
146. In re Grand Jury Proceedings, 5 F. Supp. 2d 21, 29 (D.D.C.) affd in part, rev'd in part sub nom., In re Lindsey, 158 F.3d 1263, and cert denied, 119 S. Ct. 466 (1998); see also id. at 28-29 (discussing the Independent Counsel's ex parte submission).
147. See id. at 25 (citing Nixon and In re Sealed Case, 121 F.3d 729, 743 (D.C. Cir. 1997) (the TSspy case") as providing the relevant legal framework for the district court's consideration of executive privilege claims); see generally id. at 25-30.
148. Subsequent testimony of Mr. Blumenthal provided support for the charge that the President attempted to obstruct justice by planting misinformation with key advisors, knowing that it would be repeated to the grand jury investigating the President. See COMMUNICATION FROM INDEPENDENT COUNSEL KENNETH W. STARR, supra note 97, at 128 n.1116-22.
149. See In re Lindsey, 148 F.3d 1100, 1114 (D.C. Cir.), cert, denied, 119 S. Ct. 466 (1998); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir.), cert, denied, 117 S. Ct. 2482 (1997). I have written elsewhere that the best explanation for the result in these two cases is that the government's attorney-client privilege is controlled in these circumstances by the Independent Counsel. See Paulsen, supra note 7, at 479.
150. Lindsey, 148 F.3d at 1114 (citations omitted).
151. See Grand Jury Subpoena, 112 F.3d at 919 (arguing that common law attorney-client privilege should not provide a shield to disclosure where constitutionally-based executive privilege would not).
152. See In re Sealed Case, 148 F.3d 1073,1078-79 (D.C. Cir.), reh'g denied en bane, 146 F.3d 1031 (D.C. Cir.) (per curiam), stay denied, 148 F.3d 1079 (D.C. Cir.) (per curiam), stay denied, 119 S. Ct. 1, and cert, denied, 119 S. Ct. 461 (1998).
153. See GEOFFREY C. HAZARD JR. ET AL., THE LAW AND ETHICS OF LAWYERING 264 (2d ed. 1994) (a[T]he physical characteristics of a client, such as complexion, demeanor and dress, are not generally considered privileged ... ."). The same applies to client whereabouts, client identity, and fee arrangements. See id. at 264-65; see also United States v. Hodge & Zweig, 548 F.2d 1347,1353 (9th Cir. 1977).
154. An exception might exist where disclosure of the fact of a particular presidential or executive branch meeting, or of the persons involved in such meeting, would itself constitute disclosure of the content of "communications" intended to be confidential. Again, there is an analog in the common law of attorney-client privilege. Normally, a client's identity is not covered by the privilege. Under some circumstances, however, the client's identity itself constitutes a confidential communication. See Hodge & Zweig, 548 F.2d at 1353 (citing the "Baird exception," Baird v. Koerner, 279 F.2d 623, 630 (9th Cir. I960)).
155. I must therefore side with the unanimous Supreme Court against my friend Akhil Amar on the question of whether the Constitution creates a mandatory judicial obligation to grant the President immunity from civil suit while in office. See Amar & Katyal, supra note 90. Amar & Katyal's historical arguments-particularly their reliance on Jefferson's views-support my conclusion that the President rightfully may refuse to honor compulsory judicial process as a matter of assertion of his own constitutional independence, not the conclusion that the Constitution creates a rule of temporary presidential immunity that binds the courts. Amar & Katyal almost entirely ignore the key relevant precedent that sunk Clinton's claims: United States v. Nixon.
156. I first proposed this notion at a lunch with faculty members at the University of Utah College of Law, following a presentation in October 1997. It has since become fashionable-following Clinton's deposition, the explosion of the Lewinsky affair into public view, the resulting Independent Counsel investigation, and the impeachment of President Clinton-for Mondaymorning quarterbacks to argue that this is what Clinton should have done, and that this is what his lawyers should have advised him to do. At the time, however, such an idea would have been thought an almost outlandish defiance of the Supreme Court's authority, on par with Nixon refusing to turn over the tapes. (Our notions of what would be "unthinkable" presidential actions have shrunk significantly in the time that has elapsed since fall of 1997, however.)
157. See United States v. Nixon, 418 U.S. 683,688 (1974).
158. See id. at 696.
159. See id. at 714.
160. See Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541 (1994).
161. See Van Alstyne, supra note 14.
162. U.S. CONST, art. II, §1.
163. See Nixon, 418 U.S. at 694-97.
164. However, as Bill Kelle/s fine article argues, the more one strains to read Nixon in a way that does not do violence to Article II of the Constitution, the harder it is to reconcile Nixon with Article III of the Constitution. See Kelley, supra note 16. It is hard to see why the Nixon Tapes Case is properly a matter for resolution by the courts if it involves an intra-executive dispute as to what the executive branch's policy should be with respect to the desire to use particular evidence in a trial.
165. Consistent with my position above, I believe the President may constitutionally conclude that a district court's position is correct and the Supreme Court's position is incorrect, for purposes of evaluating what the executive's independent constitutional position will be. But it would be a gross error to think that the district court's decision is the authoritative statement of the position of the judiciary. Make no mistake: if the President were to follow the decision of a lower court rather than that of the Supreme Court in direct opposition to it, he would not be abiding by the decision of the judiciary. He would be exercising his independent constitutional prerogative in opposition to the expressed will of a coordinate branch.
166. See 28 U.S.C. §596(a) (1994); Morrison v. Olson, 487 U.S. 654 (1988).
167. See id. §596(a)(3).
168. See Morrison, 487 U.S. at 697-734 (1988) (Scalia, J., dissenting).
169. The problems that result if Congress proceeds forward with its own investigation of matters that are also the subject of an ongoing criminal investigation by an Independent Counsel are well illustrated by the "Iran-Contra" prosecution of Oliver North. See United States v. North, 920 F.2d 940 (D.C. Cir. 1990); United States v. North, 910 F.2d 843 (D.C. Cir. 1990). In order to obtain information concerning the events in question, Congress was required to grant Colonel North use immunity for his compelled statements under oath before Congress. See North, 910 F.2d at 851. This in turn created enormous difficulties (insuperable difficulties, as it turned out) for the Independent Counsel in showing that no evidence, testimony or information subsequently used against North in his criminal trial was "tainted" fruits from his immunized-compelled congressional testimony-testimony receiving