Department of Justice Seal Department of Justice
FOR IMMEDIATE RELEASE
THURSDAY, JUNE 24, 2004
WWW.USDOJ.GOV
OPA
(202) 514-2007
TDD (202) 514-1888

STATEMENT OF MARK CORALLO,
DIRECTOR OF PUBLIC AFFAIRS FOR THE JUSTICE DEPARTMENT:


“The Justice Department is pleased the Supreme Court recognized the necessity of protecting the White House from vexatious lawsuits and intrusive discovery requests. By vacating the D.C. Circuit's opinion and making clear that the discovery requests at issue implicate serious separation of powers concerns that justify appellate review, the Court made clear that the courts have a special obligation to protect the Executive Branch’s autonomy from undue burdens. The Department will continue to defend the President's ability to develop sound policy for the nation.”

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EXCERPTS FROM THE OPINION OF THE COURT:

An important factor weighing in the opposite direction is the burden imposed by the discovery orders. This is not a routine discovery dispute. The discovery requests are directed to the Vice President and other senior Government officials who served on the NEPDG to give advice and make recommendations to the President. The Executive Branch, at its highest level, is seeking the aid of the courts to protect its constitutional prerogatives. As we have already noted, special considerations control when the Executive Branch’s interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications are implicated. This Court has held, on more than one occasion, that "[t]he high respect that is owed to the office of the Chief Executive... is a matter that should inform the conduct of the entire proceeding, including the timing and scope of discovery, Clinton, 520 U.S., at 707, and that the Executive's "constitutional responsibilities and status [are] factors counseling judicial deference and restraint" in the conduct of litigation against it, Nixon v. Fitzgerald, 457 U. S., at 753.

[T]here are no analogous checks in the civil discovery process here. Although under Federal Rule of Civil Procedure 11, sanctions are available, and private attorneys also owe an obligation of candor to the judicial tribunal, these safeguards have proved insufficient to discourage the filing of meritless claims against the Executive Branch. In view of the visibility of the Offices of the President and the Vice President and “the effect of their actions on countless people,” they are “easily identifiable target[s] for suits for civil damages.” Nixon v. Fitzgerald, supra, at 751.

[T]he discovery requests here, as the panel majority acknowledged, ask for everything under the sky... Given the breadth of the discovery requests in this case compared to the narrow subpoena orders in United States v. Nixon, our precedent provides no support for the proposition that the Executive Branch “shall bear the burden” of invoking executive privilege with sufficient specificity and of making particularized objections. 334 F. 3d, at 1105.

Here, as the Court of Appeals acknowledged, the discovery requests are anything but appropriate. They provide respondents all the disclosure to which they would be entitled in the event they prevail on the merits, and much more besides. In these circumstances, Nixon does not require the Executive Branch to bear the onus of critiquing the unacceptable discovery requests line by line. Our precedents suggest just the opposite. See, e.g., Clinton v. Jones, 520 U.S. 681 (1997); id. at 705 (holding that the Judiciary may direct “appropriate process” to the Executive); Nixon v. Fitzgerald, 457 U.S., at 753. The Government, however, did in fact object to the scope of discovery and asked the District Court to narrow it in some way. Its arguments were ignored. See App. 167, 181.183 (arguing “this case can be resolved far short of the wide-ranging inquiries plaintiffs have proposed” and suggesting alternatives to “limi[t]” discovery); id., at 232 (“Defendants object to the scope of plaintiffs’ discovery requests and to the undue burden imposed by them. The scope of plaintiffs’ requests is broader than that reasonably calculated to lead to admissible evidence.); id., at 232, n. 10 (“We state our general objections here for purposes of clarity for the record and to preclude any later argument that, by not including them here, those general objections have been waived”). In addition, the Government objected to the burden that would arise from the District Court’s insistence that the Vice President winnow the discovery orders by asserting specific claims of privilege and making more particular objections. App. 201 (Tr. of Status Hearing (Aug. 2, 2002)) (noting “concerns with disrupting the effective functioning of the presidency and the vice-presidency”); id., at 274 (“[C]ompliance with the order of the court imposes a burden on the Office of the Vice President. That is a real burden. If we had completed and done everything that Your Honor has asked us to do today that burden would be gone, but it would have been realized”). These arguments, too, were rejected. See id., at 327, 329 (Nov. 1, 2002, Order) (noting that the court had, “on numerous occasions,” rejected the Government’s assertion “that court orders requiring [it] to respond in any fashion to [the] discovery requests creates an ‘unconstitutional burden’ on the Executive Branch”).

Contrary to the District Court’s and the Court of Appeals’ conclusions, Nixon does not leave them the sole option of inviting the Executive Branch to invoke executive privilege while remaining otherwise powerless to modify a party’s overly broad discovery requests. Executive privilege is an extraordinary assertion of power “not to be lightly invoked.” United States v. Reynolds, 345 U. S. 1, 7 (1953). Once executive privilege is asserted, coequal branches of the Government are set on a collision course. The Judiciary is forced into the difficult task of balancing the need for information in a judicial proceeding and the Executive’s Article II prerogatives. This inquiry places courts in the awkward position of evaluating the Executive’s claims of confidentiality and autonomy, and pushes to the fore difficult questions of separation of powers and checks and balances. These “occasion[s] for constitutional confrontation between the two branches” should be avoided whenever possible. United States v. Nixon, supra, at 692.

In recognition of these concerns, there is sound precedent in the District of Columbia itself for district courts to explore other avenues, short of forcing the Executive to invoke privilege, when they are asked to enforce against the Executive Branch unnecessarily broad subpoenas.

As we discussed at the outset, under principles of mandamus jurisdiction, the Court of Appeals may exercise its power to issue the writ only upon a finding of “exceptional circumstances amounting to a judicial ‘usurpation of power,’” Will, 389 U. S., at 95, or “a clear abuse of discretion,” Bankers Life, 346 U. S., at 383. As this case implicates the separation of powers, the Court of Appeals must also ask, as part of this inquiry, whether the District Court’s actions constituted an unwarranted impairment of another branch in the performance of its constitutional duties. This is especially so here because the District Court’s analysis of whether mandamus relief is appropriate should itself be constrained by principles similar to those we have outlined, supra, at 9-11, that limit the Court of Appeals’ use of the remedy. The panel majority, however, failed to ask this question. Instead, it labored under the mistaken assumption that the assertion of executive privilege is a necessary precondition to the Government’s separation-of-powers objections.

[T]he Court of Appeals, relying on its mistaken reading of United States v. Nixon, prematurely terminated its inquiry after the Government refused to assert privilege and did so without even reaching the weighty separation-of-powers objections raised in the case, much less exercised its discretion to determine whether “the writ is appropriate under the circumstances.” Ante, at 10. Because the issuance of the writ is a matter vested in the discretion of the court to which the petition is made, and because this Court is not presented with an original writ of mandamus, see, e.g., Ex parte Peru, 318 U. S., at 586, we leave to the Court of Appeals to address the parties’ arguments with respect to the challenge to AAPS and the discovery orders.

We note only that all courts should be mindful of the burdens imposed on the Executive Branch in any future proceedings. Special considerations applicable to the President and the Vice President suggest that the courts should be sensitive to requests by the Government for interlocutory appeals to reexamine, for example, whether the statute embodies the de facto membership doctrine.

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04-444


Source: Justice Department