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Friday, February 17, 2006

Vice-Presidential Privilege?

It's only a bit of an understatement to say that the Vice President has been in the news a little bit this week... and, as others have noted, perhaps the far more interesting nugget coming out of VP Cheney's interview with Fox News is the "declassification authority" issue -- the Vice President's apparent assertion that he has the authority to declassify documents that he didn't classify himself.

I don't want to prejudge the merits of the declassification authority argument, both because FOIA/secrecy issues aren't a particular area of expertise, and because I haven't looked in depth at the statutory framework. But this does seem eerily familiar to the Cheney/NEPDG [National Energy Policy Development Group] mess that culminated with the Supreme Court's non-decision in Cheney v. U.S. District Court, and the D.C. Circuit's largely unnoticed en banc ruling on remand, siding with the Administration on the merits.

The larger question here, and one that keeps arising in this Administration, is whether the Vice President is entitled to the same privileges and immunities as the President -- particularly those that aren't available for other executive officers, e.g., cabinet officials.

That is, it's one thing to argue that the Vice President is entitled to the same deference and judicial protection as other senior government officials, and that, for example, the Vice President may invoke executive privilege where it applies. It seems another thing altogether to extend special rules (including, perhaps, declassification authority, and absolute immunity from all civil litigation while in office) that have historically been unique to the Office of the President, and unavailable to all other Executive Branch officials, to the Vice President.

But, whether it's warranted or not, is this extension unprecedented?

For proponents of broad constitutional vice-presidential authority, there's an obvious, and serious, textual problem: The Constitution as enacted envisioned the Vice President as the loser of the previous presidential election; there would be no reason to bestow upon him significant inherent power separate from his explicit (and limited) constitutional obligations (like presiding over his own impeachment trial -- always loved that one).

This is where the Supreme Court's Cheney decision, in which very little was actually decided, could prove critically important. For it is Justice Kennedy's majority opinion that significantly conflates the legal distinction that might previously have been thought to have existed. Consider the following passage:

Were the Vice President not a party in the case, the argument that the Court of Appeals should have entertained an action in mandamus, notwithstanding the District Court’s denial of the motion for certification, might present different considerations. Here, however, the Vice President and his comembers on the NEPDG are the subjects of the discovery orders. The mandamus petition alleges that the orders threaten “substantial intrusions on the process by which those in closest operational proximity to the President advise the President.” These facts and allegations remove this case from the category of ordinary discovery orders where interlocutory appellate review is unavailable, through mandamus or otherwise. It is well established that “a President’s communications andactivities encompass a vastly wider range of sensitive material than would be true of any “ordinary individual.” United States v. Nixon, 418 U. S., at 715. Chief Justice Marshall, sitting as a trial judge, recognized the unique position of the Executive Branch when he stated that “[i]n no case . . . would a court be required to proceed against the president as against an ordinary individual.” United States v. Burr, 25 F. Cas. 187, 192 (No. 14,694) (CC Va. 1807). See also Clinton v. Jones, 520 U. S. 681, 698–699 (1997) (“We have, in short, long recognized the ‘unique position in the constitutional scheme’ that [the Office of the President] occupies” (quoting Nixon v. Fitzgerald, 457 U. S. 731, 749 (1982))); 520 U. S., at 710–724 (BREYER, J., concurring in judgment). As United States v. Nixon explained, these principles do not mean that the “President is above the law.” 418 U. S., at 715. Rather, they simply acknowledge that the public interest requires that a coequal branch of Government “afford Presidential confidentiality the greatest protection consistent with the fair administration of justice,” ibid., and give recognition to the paramount necessity of protecting the Executive Branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties.

These separation-of-powers considerations should inform a court of appeals’ evaluation of a mandamus petition involving the President or the Vice President.

I've left the citations in to prove the point -- all of the cases cited by Justice Kennedy were cases involving the then-sitting President, and turning on his unique constitutional status. Even in Burr, the issue was whether President Jefferson could be called to testify in former-Vice President Burr's criminal trial. In short, whether or not you agree that the Vice President should have anything approaching the special constitutional status that the President has traditionally been accorded, at least as compared to other governmental officers, Cheney effectively holds as much without explaining why.

Indeed, to my knowledge, there's only one even circuit-level case that actually formally tries to equate the authority of the President and the Vice President -- and that's a 1993 D.C. Circuit decision [I couldn't find a free link -- Meyer v. Bush, 981 F.2d 1288 (D.C. Cir. 1993)] holding only that, like the President, the Vice President is not an "agency" within the meaning of the APA.

And so, as we get past the hyperbole of a very busy news week for the Vice President, and start asking the law prawf question -- what's the precedent for all of this (well, all except maybe that whole shooting thing, although I guess there's precedent for that, too...) -- we find a recent Supreme Court decision about this Vice President, suggesting that the same deference and special judicial privileges available historically only to the President are also available to him, and so holding without bothering to explain why. [Any takers for a Twelfth Amendment theory? Bueller? Anyone?]

Posted by Steve Vladeck on February 17, 2006 at 03:01 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink

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Comments

I've been reading Amar's "biography of the Constitution," and he makes an interesting case that the 25th Amendment has raised the stature of the Vice-Presidency. Before that amendment, for ex., it was an open question legally as to whether a VP who replaced a deceased Pres. was even "President" or merely "acting President." Amar also notes that VP's have become much more likely to run for the Presidency than they were in previous history. And we're much more conscious, after FDR, JFK, and Reagan's near-miss, of the possibility of a VP's taking office; it no longer seems plausible that a VP could be shut out of the Executive's activities as so many used to be.

So if we're going to think about the 12th Amendment, maybe the 25th also bears attention.

Posted by: Anderson | Feb 19, 2006 8:16:34 PM

What did the Federal Elections Commission do about the Gore fundraiser telephone calls from the White House. FEC is a commission, and a very politicized one, at that; but, I thought that was Cheney's first response, at least for media publication, to remind his critics who disliked the energy lobby NEP design consortium which he assembled, that that Albert Gore did some marginally permissible things with fundraising from the bullypulpit of the office of the vice president.

Posted by: John Lopresti | Feb 18, 2006 7:02:00 PM

It explicitly states that he can declassify information he himself classified, but it is a lot less clear about his ability to declassify information originating from agencies like the CIA. As the order says declassification powers, it is granted to: "(1) the official who authorized the original classification...; (2) the originator's current successor in function; (3) a supervisory official of either; or (4) officials delegated declassification authority in writing by the agency head or the senior agency official."

So the question is, is the Vice President considered a supervisory official of the CIA? If not, he would need authority in writing by the agency head to declassify their information. In any case, there is a proper procedure and he can't just say willynilly after the fact that he declassified something.

And all of this is only available to the vice president "in the performance of executive duties." If we are talking about the Plame case where Libby's mentioning of his "superiors" instructions is thought to include Cheney, then one as to ask themselves if "executive duties" really does include instructing your staff to reveal the names of US spies to major media outlets for political reasons.

Is this precedent of legality one that you really want to extend to all future vice-presidents?

Posted by: Nylund | Feb 17, 2006 1:28:39 PM

The Vice President's authority to declassify information is explicit in an executive orser signed by George Bush.

Posted by: Roy Lofquist | Feb 17, 2006 11:19:51 AM

Great question, Steve.
I'd guess that the reason for it is by implication out of the 12th Amendment: once the VP becomes the President's appendage and is elected with him, to replace the Pres if the Pres is incapacitated, he becomes part of the "office of the Pres." A bit glib, maybe, but it does make some sense.

Posted by: Stuart | Feb 17, 2006 8:52:37 AM

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