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Vice Presidential Secrecy: a Study in Comparative Constitutional Privilege and Historical Development

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Vice Presidential Secrecy: a Study in Comparative Constitutional Privilege and Historical Development St. John's Law Review Volume 84 Number 2 Volume 84, Spring 2010, Number 2 Article 1 Vice Presidential Secrecy: A Study in Comparative Constitutional Privilege and Historical Development Roy E. Brownell II Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. 84 St. John’s L. Rev. 423 (2010) ARTICLES VICE PRESIDENTIAL SECRECY: A STUDY IN COMPARATIVE CONSTITUTIONAL PRIVILEGE AND HISTORICAL DEVELOPMENT ROY E. BROWNELL II† INTRODUCTION ............................................................................. 426 CONSTITUTIONAL STRUCTURE AND COMPARATIVE CONSTITUTIONAL PRIVILEGE ....................................................... 437 I.THE CONSTITUTIONAL NORM OF ENCOURAGING EFFECTIVE DECISIONMAKING ............................................................... 437 A. The Gathering of Information .................................... 437 B. Immunity Against Civil Suit for Official Actions ....... 440 C. Constitutional Privileges and Governmental Structure ..................................................................... 444 1. Separation of Powers and Constitutional Privileges ................................................................ 444 2. Why the Vice President Should Be Treated Like Any Other Constitutional Officer .......................... 449 II.EXECUTIVE PRIVILEGE ............................................................. 450 A. Constitutional Structure ............................................. 451 B. Judicial Interpretation of the Doctrine ...................... 454 1. United States v. Nixon (Nixon I) ............................ 454 2. Post-Nixon I Jurisprudence ................................... 456 † The author, a counsel in the U.S. Senate, would like to thank Joel Goldstein, Louis Fisher, Don Wallace, Jr., Mort Rosenberg, Fred Karem, Jody Baumgardner, Richard Baker, Harold Relyea, Dean McGrath, Jim Terry, Bob Muse, Bob Weinberg, Justin Jones, and Josiah Brownell for their helpful comments and Kathy Reinke for her word processing assistance. The opinions expressed herein and any errors are the author’s alone. 423 84 St. John’s L. Rev. 423 (2010) 424 ST. JOHN’S LAW REVIEW [Vol. 84:423 a. Nixon v. Administrator of General Services (Nixon II) .......................................................... 456 b. In re Sealed Case (Espy) ................................... 457 c. In re Sealed Case (Secret Service) .................... 459 C. Executive Privilege Policies ........................................ 460 D. Prominent Authorities on the Exclusiveness of the President Invoking Executive Privilege ..................... 465 III.LEGISLATIVE PRIVILEGE ......................................................... 468 A. The Speech or Debate Clause as a Constitutional Privilege ...................................................................... 470 B. Support for the Generalized Legislative Privilege ..... 475 C. Political Practice and Legislative Privilege ................ 477 D. Conclusion ................................................................... 479 IV.JUDICIAL PRIVILEGE ............................................................... 480 A. The Vesting Clause of Article III ................................ 480 B. Judicial Treatment of Judicial Privilege .................... 481 C. Political Practice and Judicial Privilege ..................... 486 D. Conclusion ................................................................... 491 HISTORICAL DEVELOPMENT: THE VICE PRESIDENCY, INVESTIGATIONS, AND OPPORTUNITIES FOR ASSERTION OF PRIVILEGE .................................................................................... 492 V.THE VICE PRESIDENT AND THE CONSTITUTION ....................... 492 A. The Framers and the Evolving Role of the Vice President ..................................................................... 492 B. The Vice President’s Enumerated Powers ................. 495 VI.INVESTIGATIONS INVOLVING VICE PRESIDENTS AND OPPORTUNITIES FOR ASSERTION OF PRIVILEGE ................. 502 A. Daniel Tompkins ......................................................... 505 B. John C. Calhoun .......................................................... 507 C. Schuyler Colfax ........................................................... 508 D. Henry Wallace ............................................................. 510 E. Hubert Humphrey ....................................................... 513 F. Spiro Agnew ................................................................ 516 G. Gerald Ford ................................................................. 521 H. Nelson Rockefeller ...................................................... 525 1. The Rockefeller Commission ................................. 525 2. Testifying as to Actions While Governor ............... 526 I. George H.W. Bush ....................................................... 529 J. Dan Quayle ................................................................. 531 84 St. John’s L. Rev. 423 (2010) 2010] VICE PRESIDENTIAL SECRECY 425 K. Al Gore ........................................................................ 535 L. Richard B. Cheney ...................................................... 538 1. Walker v. Cheney .................................................... 539 2. Cheney v. U.S. District Court ................................. 543 3. Executive Order No. 13,233 Regarding Presidential and Vice Presidential Records .......... 547 4. Senate Judiciary Committee Subpoena Issued to the Vice President .............................................. 550 5. House Judiciary Committee Subpoena Issued to Vice President Cheney’s Chief of Staff .................. 551 6. The Valerie Plame Wilson Matter ......................... 555 7. The 9/11 Commission ............................................. 560 8. Congressional Committees and Vice President Cheney .................................................................... 562 M. Conclusion ................................................................... 565 ARGUMENTATION: DOES A CONSTITUTIONAL PRIVILEGE EXIST FOR THE VICE PRESIDENT? .......................................................... 567 VII. POTENTIAL ARGUMENTS IN FAVOR OF VICE PRESIDENTIAL PRIVILEGE (VPP) ................................................................ 567 A. The Vice President as a Constitutional Officer Enjoys an Implied Privilege ........................................ 567 1. President of the Senate .......................................... 568 a. The Vice President Has His Own Generalized Legislative Privilege as a Constitutional Officer Presiding over the Senate ............................................................... 568 b. The Vice President and the Speech or Debate Clause .................................................. 579 2. The Twenty-Fifth Amendment .............................. 587 B. The Vice President as the President’s Vicar .............. 598 C. Fulfilling Duties Delegated by Statute or by the President ..................................................................... 601 D. Potential Applications ................................................. 602 E. Conclusion ................................................................... 603 VIII. POTENTIAL COUNTERARGUMENTS AGAINST VPP .............. 604 A. There Is No Explicit Textual Grant Providing Support for VPP .......................................................... 604 84 St. John’s L. Rev. 423 (2010) 426 ST. JOHN’S LAW REVIEW [Vol. 84:423 B. The Vice President Enjoys No Constitutional Privilege Because All Executive Power Is Delegated to the President ......................................... 607 C. There Is Little Judicial or Historical Precedent Supporting VPP .......................................................... 611 D. The President Has No Implied Powers, Therefore, Neither Should the Vice President ............................. 615 E. Since the Vice President Does Not Occupy His Own Branch of Government, He Does Not Have His Own Distinct Privilege ................................................ 618 F. The Vice President’s Powers Are Too Modest To Require a Privilege ...................................................... 621 G. The Rule Against Creating New Privileges ................ 624 H. VPP Represents an Anti-Originalist Position ............ 627 CONCLUSION: WEIGHING THE MERITS OF VPP............................ 628 INTRODUCTION It is generally accepted that Richard B. Cheney was the most powerful Vice President in American history.1 His tenure marks the apogee of vice presidential influence, reflecting the gradual rise in importance of the office over the past several decades.2 1 See, e.g., BRUCE P. MONTGOMERY, RICHARD B. CHENEY AND THE RISE OF THE IMPERIAL VICE PRESIDENCY x (2009) (“Cheney . far surpassed any of his predecessors in power and influence.”); SHIRLEY ANNE WARSHAW, THE CO- PRESIDENCY OF BUSH AND CHENEY 1 (2009) (“Cheney . exerted more influence than any vice president in history . .”). 2 It is undeniable that the stature of the vice presidency has increased dramatically since the nineteenth century. When exactly the turning point took place is less clear. The leading scholar on the vice presidency sums up matters aptly: The metamorphosis of the vice presidency
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