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Over the course of the past few decades, creative lawyers in the executive branch have asserted a variety of privileges and immunities to shield America's highest executive officials, the president and vice president of the United States, from both criminal and civil proceedings. The challenges naturally raise important constitutional questions, which the federal courts are often asked to address. The Supreme Court has offered some broad parameters for holding the president in check while at the same time preserving the balance between the three branches of the federal government. This article begins with an overview of the parameters that the Supreme Court has established regarding presidential immunity. The article then proceeds to a discussion of how the Supreme Court, in Cheney v. District Court, recently addressed the current administration's efforts to avoid civil action against the vice president by asserting executive immunity based on the separation of powers doctrine. The article concludes with a brief discussion of the implications of the Court's ruling in Cheney v. District Court.
There is an old saying, "You can't sue city hall." The reference is that the executive is immune from lawsuits, so don't bother with litigation. It will just be a waste of time and resources. Cynics have interpreted executive immunity as an open invitation to secrecy, corruption, and abuse of power. By making executive branch officials immune from court proceedings, critics argue that the Executive becomes above the law (see, e.g., Berger 1974). Over the years, though, legislative bodies have passed numerous laws designed to promote open government and to hold executive officials accountable to the other branches of government and to their constituents. These laws reach all the way to the highest level of government in American society: the White House.1
Nevertheless, just because Congress wants to hold the president accountable does not necessarily mean that you can take the White House to court. Over the course of the past few decades, creative lawyers in the executive branch have asserted a variety of privileges and immunities to shield America's highest executive officials, the president and vice president of the United States, from both criminal and civil proceedings. The challenges naturally raise important constitutional questions, which the federal courts are often asked to address.2
So when...