Nixon's Shadow

Minnesota Law Review

Volumn 83, Issue 5, 1999, Pages 1405-1420

  Amar, Akhil Reed ^a  

^a YALE UNIVERSITY   (United States)

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EID: 0347315049     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (43)

1. 418 U.S. 683(1974).
2. U.S. CONST, art. II, §1 ("The executive Power shall be vested in a President of the United States of America.").
3. Nixon, 418 U.S. at 693.
4. Id. at 695.
5. 272 U.S. 52 (1926).
6. INS v. Chadha, 462 U.S. 919 (1983).
7. But see Nixon, 418 U.S. at 696 (squarely relying on unconstitutional legislative veto provision of regulation). Compare id. at 704 (properly affirming nondelegation and separation of powers principles wholly inconsistent with this reliance).
8. See id. at 696.
9. Cf. id. at 691, 697 (delicately referring to the "unique setting" and "unique facts of this case"); id. at 700 (stressing material under seal as basis for Court's conclusion); id. at 687-88, 701 (subtly relying on Richard Nixon's status as an unindicted co-conspirator). For another reading of Nixon that stresses the crooked facts,
10. see Michael Stokes Paulsen, Nixon Now: The Courts and the Presidency After Twenty-Five Years, 83 MlNN. L. REV. 1337 (1999).
11. 25 F. Cas. 30 (C.C.D. Va. 1807) (No. 14,692d). For a rich and delightful general discussion of Burr, see John C. Yoo, The Burr Trial, United States v. Nixon, and Presidential Power, 83 MlNN. L. REV. 1435 (1999).
12. See, e.g., Brady v. Maryland, 373 U.S. 83 (1963) (discussing general duty of prosecutor to disclose exculpatory evidence upon request).
13. See Nixon, 418 U.S. at 711-12.
14. See id.
15. Id.
16. See id. at 710-15.
17. See generally McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819); CHARLES L. BLACK, JR., STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW (1969).
18. Marbury v. Madison, 5 U.S. (1 Cranch) 137,143-44 (1803).
19. Cf. Nixon, 418 U.S. at 712 n.20 (invoking just such a case, Clark v. United States, 289 U.S. 1 (1933)).
20. See id. at 701 (relying on co-conspirator exception to hearsay rule, and pointedly noting that exception applies to nondefendant conspirators-i.e., Nixon).
21. See id. at 700 (emphasizing that "[o]ur conclusion is based on the record before us, much of which is under seal").
22. This aspect of the case is nicely discussed in Paulsen, supra note 9.
23. Nixon, 418 U.S. at 704 (quoting Baker v. Carr, 369 U.S. 186 (1962)).
24. A Lexis search reveals that the first appearance of the phrase was in 1962, in the Baker v. Carr case. My own views on constitutional decisionmaking outside the Supreme Court are set out elsewhere in much of my work. They are much closer to those expressed by Professor Calabresi, see Steven G. Calabresi, Caesarism, Departmentalism, and Professor Paulsen, 83 MlNN. L. REV. 1421 (1999), than those put forth by my more provocative friend, Professor Paulsen, see Paulsen, supra note 9;
25. Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217 (1994).
26. See generally Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747, 802-12 (1999).
27. See generally Younger v. Harris, 401 U.S. 37 (1971); Paul M. Bator, The State Courts and Federal Constitutional Litigation, 22 WM. & MARY L. REV. 605 (1981).
28. For an interesting general discussion (whose conclusions I do not endorse), see John Q. Barrett, All or Nothing, or Maybe Cooperation: Attorney General Power, Conduct, and Judgment in Relation to the Work of an Independent Counsel, 49 MERCER L. REV. 519 (1998).
29. 487 U.S. 654 (1988).
30. See id. at 721.
31. Clinton v. Jones, 117 S. Ct. 1636,1649 (1997).
32. Compare id. at 1645 n.23 (dismissive and inaccurate treatment of contrary historical evidence) with id. at 1654-56 (Breyer, J., concurring in the judgment) (offering a far more careful discussion of this evidence). For my own views of the history, see
33. Akhil Reed Amar & Neal Kumar Katyal, Executive Privileges and Immunities: The Nixon and Clinton Cases, 108 HARV. L. REV. 701, 710-21 (1995).
34. In re Sealed Case, 148 F.3d 1073, 1077 (B.C. Cir.), reh'g en bane denied, 146 F.3d 1031 (D.C. Cir.), stay denied, 148 F.3d 1079 (D.C. Cir.), and cert, denied, 119 S. Ct. 461 (1998).
35. Id. at 1076,1078.
36. See id. at 1078.
37. In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir.), cert, denied, 521 U.S. 1105 (1997); In re Lindsey, 158 F.3d 1263 (B.C. Cir.), cert, denied, 119 S. Ct. 466 (1998).
38. For a more general discussion of this issue, see Akhil Reed Amar & Brian C. Kalt, The Presidential Privilege Against Prosecution, 2 NEXUS 11 (1997); Testimony of Akhil Reed Amar Before the Senate Judiciary Subcommittee on the Constitution, Federalism, and Property Rights, On the Indictability of Sitting Presidents (Sept. 9,1998), available in 1998 WL 18089607.
39. Criminal trials in absentia, default judgments entered against criminal defendants, and directed verdicts against criminal defendants are generally impermissible under our Constitution, rendering criminal adjudication importantly different from civil adjudication.
40. Clinton v. Jones, 117 S. Ct. 1636,1643 (1997).
41. If a President were to be incarcerated upon conviction, and later won on appeal, how could we give back to him (and those that voted for him) the lost days of his Presidency? This special problem does not arise with civil suits. We should also note that although the Jones Court thought that very little historical evidence supported Presidential immunity from civil suit in federal court, there is a great deal of historical evidence supporting the notion that a sitting President may not be forced to stand trial in an ordinary criminal court against his will. See sources cited supra note 35. Note also that in a civil case, there is never a "plaintiff-standing-4 problem. Anyone can bring a civil suit. But who can bring a criminal suit, and in whose name? As a matter of federalism, can a state bring a criminal suit against a sitting President? (Imagine what would have happened had some clever South Carolina prosecutor been vested with the legal right to prosecute Lincoln in early 1861.) As a matter of separation of powers, how can an "inferior" officer like Kenneth Starr criminally prosecute the chief executive and do so in the name of "the United States"? How can Starr have this awesome power and still be in any real sense a mere "inferior" officer-with powers so modest that he need not even be confirmed by the Senate? The holding of the Tapes Case does not give Starr this power-remember Nixon's unilateral power to make Jaworski go away. For reasons I set out in more detail elsewhere, Morrison v. Olson is also cleanly distinguishable; the Pardon Clause allowed the President to trump the independent counsel on the facts of Morrison by simply giving Ted Olson a Weinberger-like pardon, but this reason for upholding the independent counsel as truly "inferior" and not "unduly" intrusive upon the President fails if the President himself could somehow be made a criminal defendant, given that the President may not properly pardon himself. For more discussion, see Amar, supra note 24, at 802-04;
42. Akhil Reed Amar, A Constitutional Nightmare, WASH. POST, Sept. 20, 1998,
43. Outlook Section; Akhil Reed Amar, In Praise of Impeachment, THE AMERICAN LAWYER, Sept. 1998, at 92.