Kinsella v. Jaekle (CTSC 1984)
Facts of the Case
Probate Judge James H. Kinsella was being investigated by a House of Representatives committee. The
committee was trying to decide whether or not to move forward with impeachment proceedings against
the Judge. In the process, several questions and challenges arose related to subpoenas of the
cochairmen of the committee, jurisdiction of the court and committee, and the speech and debate
clause. The questions were combined under Kinsella v. Jaekle. Lower courts denied the request to
quash the subpoena of the cochairmen and delayed deciding the other matters.
Does the legislature have exclusive jurisdiction over impeachment in this case so as to warrant
dismissal of the complaint by the Superior Court for lack of subject matter jurisdiction? In other words,
who has the right to make decisions in relation to an impeachment case?
Can members of a legislative committee be subpoenaed or are they protected by the speech and
Is Judge Kinsella impeachable?
Does Article Nine of the Connecticut Constitution violate the 14th Amendment to the U.S. Constitution?
The Legislature has exclusive jurisdiction over impeachment in this case.
Impeachment involves a non-justicible political question.
The trial court erred in denying (the committee cochairmen) motion to quash subpoenas for legislators
protected by (the speech and debate clause).
A probate judge is an impeachable judicial officer.
Article Ninth, Connecticut Constitution, does not violate the Fourteenth Amendment, U.S. Constitution.
Clinton v. Jones (USSC 1997)
Facts of the Case
Paula Corbin Jones sued President Bill Clinton. She alleged that while she was an Arkansas state
employee, she suffered several "abhorrent" sexual advances from then Arkansas Governor Clinton.
Jones claimed that her continued rejection of Clinton's advances ultimately resulted in punishment by
her state supervisors. Following a District Court's grant of Clinton's request that all matters relating to
the suit be suspended, pending a ruling on his prior request to have the suit dismissed on grounds of
presidential immunity, Clinton sought to invoke his immunity to completely dismiss the Jones suit
against him. While the District Judge denied Clinton's immunity request, the judge ordered the stay of
any trial in the matter until after Clinton's Presidency. On appeal, the Eighth Circuit affirmed the
dismissal denial but reversed the trial deferment ruling since it would be a "functional equivalent" to an
unlawful grant of temporary presidential immunity.
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Is a serving President, for separation of powers reasons, entitled to absolute immunity from civil
litigation arising out of events which transpired prior to his taking office?
No. In a unanimous opinion, the Court held that the Constitution does not grant a sitting President
immunity from civil litigation except under highly unusual circumstances. After noting the great respect
and dignity owed to the Executive office, the Court held that neither separation of powers nor the need
for confidentiality of high-level information can justify an unqualified Presidential immunity from judicial
process. While the independence of our government's branches must be protected under the doctrine
of separation of powers, the Constitution does not prohibit these branches from exercising any control
over one another. This, the Court added, is true despite the procedural burdens which Article III
jurisdiction may impose on the time, attention, and resources of the Chief Executive.
Kilbourn v. Thompson (USSC 1880)
Facts of the Case
Thompson was Sergeant-At-Arms for the House of Representatives. Hallett Kilbourn was subpoenaed to
testify before and deliver documents to a Special Committee established by the House of
Representatives to investigate the bankruptcy of J. Cook and Company. He appeared but refused to
answer questions and did not deliver the documents. After a report back to the full House, Sergeant-At-
Arms, John G. Thompson, was ordered to take Mr. Kilbourn into custody. When the Sergeant-At-Arms
brought Mr. Kilbourn before the House to be questioned by the Speaker of the House, he again refused
to answer questions or produce the documents. He also refused to offer an explanation of his refusal.
The House resolved that Kilbourn was in contempt and should be held in custody until he agrees to
testify and produce the requested documents.
Does the House of Representatives have the right to compel testimony?
Rarely. “...there is in some cases a power in each House of Congress to punish for contempt.” That
power is qualified in the next paragraph, “The cases in which they can do this are very limited,” and
they added, “...we cannot give our assent to the principle that, by the mere act of asserting a person to
be guilty of a contempt, they thereby establish their right to fine and imprison him, beyond the power
of any court or any other tribunal whatever to inquire into the grounds on which the order was made..”
The Court also reaffirmed the rights of Legislators to speech and debate protection from arrest while
Congress was in session.
United States v. Nixon (USSC 1974)
Facts of the Case
A grand jury returned indictments against seven of President Richard Nixon's closest aides in the
Watergate affair. The special prosecutor appointed by Nixon and the defendants sought audio tapes of
conversations recorded by Nixon in the Oval Office. Nixon asserted that he was immune from the
subpoena claiming "executive privilege," which is the right to withhold information from other
government branches to preserve confidential communications within the executive branch or to secure
the national interest. Decided together with Nixon v. United States.
Is the President's right to safeguard certain information, using his "executive privilege" confidentiality
power, entirely immune from judicial review?
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No. The Court held that neither the doctrine of separation of powers, nor the generalized need for
confidentiality of high-level communications, without more, can sustain an absolute, unqualified,
presidential privilege. The Court granted that there was a limited executive privilege in areas of military
or diplomatic affairs, but gave preference to "the fundamental demands of due process of law in the fair
administration of justice." Therefore, the president must obey the subpoena and produce the tapes and
documents. Nixon resigned shortly after the release of the tapes.
Nixon v. General Services Administration (USSC 1977)
Facts of the Case
After President Nixon resigned from office, he made an agreement with the Administrator of General
Services regarding access to and storage of his Presidential papers and audio tapes. The agreement
would allow Nixon to have documents and tapes withdrawn or destroyed after a period of between two
and five years. All the tapes would be destroyed after either Nixon’s death or ten years. Soon after the
agreement was announced, Congressed passed the Presidential Recordings and Materials Preservation
Act. The act allowed the General Services Administration to take custody of the documents so that
government archivists could preserve documents of historic value. The act also allowed the
Administrator of General Services to establish rules for public access to the documents in the future.
Does the Presidential Recordings and Materials Preservation Act violate the principle of separation of
powers, the Presidential privilege, Nixon’s privacy interests, his First Amendment rights, and the Bill of
(The Federal District Court ruled that the Act did not violate any of the complaint elements.)
No. They Supreme Court affirmed the decision of the Federal District Court.
They decided that the principle of separation of powers should focus on the extent to which it prevents
a branch from accomplishing its constitutionally assigned functions. As for Presidential privilege, the
Court cited United States v. Nixon writing that the principle is limited to communications "in
performance of [a President's] responsibilities."
On the question of Nixon’s privacy interests, the Court decided that although Nixon would be allowed to
protect correspondence of a personal nature, most of the documents are not of a private nature and in
any case, rules for the exclusion of the small number of personal correspondence had already been
In relation to the first amendment, the Court agreed with the District Court that the act would not deter
the political activity of future Presidents and finally, “burdensome consequences” do not necessarily
qualify as a bill of attainder.
Morrison v. Olsen (USSC 1988)
Facts of the Case
The Ethics in Government Act of 1978 created a special court and empowered the Attorney General to
recommend to that court the appointment of an "independent counsel" to investigate, and, if
necessary, prosecute government officials for certain violations of federal criminal laws.
Did the Act violate the constitutional principal of separation of powers?
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No. The Court addressed a number of constitutional issues in this case and upheld the law. The near-
unanimous Court held that the means of selecting the independent counsel did not violate the
Appointments Clause; the powers allocated to the special court did not violate Article III; and the Act
was not offensive to the separation of powers doctrine since it did not impermissibly interfere with the
functions of the Executive Branch.
Cheney v. U.S. District Court for the District of Columbia (2004)
Facts of the Case
In January 2001, President Bush created an advisory committee on energy policy headed by Vice
President Dick Cheney. After the group issued its recommendations five months later, Judicial Watch, a
non-profit government watchdog group, filed suit in federal district court. The Sierra Club, an
environmentalist organization, later filed a nearly identical suit that was joined with the Judicial Watch
suit. The two organizations alleged that the advisory committee had violated the Federal Advisory
Committee Act (FACA) by not making public all the documents that it had generated. While FACA
exempts committees composed entirely of federal officials, Judicial Watch and the Sierra Club argued
that the exemption did not apply because private lobbyists had participated in the energy committee's
Cheney and the advisory group asked the court to dismiss the case, claiming that it violated the
Constitutional separation of powers by requiring judicial oversight of internal executive branch
deliberations. The district court refused.
The government then sought summary judgment of the case (without the discovery process) based on
a few administrative documents that it claimed showed that only federal officials had worked on the
group. The district court denied this request as well, and the government appealed to the Court of
Appeals for the District of Columbia. The appeals court refused to grant summary judgment, arguing
that it could not yet rule on the separation of powers argument. The government then appealed the
case to the U.S. Supreme Court.
Does the Federal Advisory Committee Act authorize judicial review of executive branch deliberations
through a broad discovery process that allows a private organization to review internal documents of
high-level advisors to the President? If such review is authorized by FACA, does it violate the
Constitutional doctrine of separation of powers?
In a 7-2 opinion delivered by Justice Anthony Kennedy, the Court sent the case back to the D.C. Court
of Appeals, arguing that the appellate court should have considered separation-of-powers claims and
was wrong to conclude it lacked authority to order District Court discovery to stop. Such an order
(mandamus) to stop discovery proceedings should be considered because those proceedings, "by virtue
of their overbreadth," could interfere with presidential activity. Further, the appellate court
misinterpreted U.S. v. Nixon to mean that the government needed to assert executive privilege for
separation-of-powers objections to be considered.
Nixon v. Fitzgerald (USSC 1982)
Facts of the Case
In 1968, Fitzgerald, then a civilian analyst with the United States Air Force, testified before a
congressional committee about inefficiencies and cost overruns in the production of the C-5A transport
plane. Roughly one year later he was fired, an action for which President Nixon took responsibility.
Fitzgerald then sued Nixon for damages after the Civil Service Commission concluded that his dismissal
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Was the President immune from prosecution in a civil suit?
Yes. The Court held that the President "is entitled to absolute immunity from damages liability
predicated on his official acts." This sweeping immunity, argued Justice Powell, was a function of the
"President's unique office, rooted in the constitutional tradition of separation of powers and supported
by our history."
President James K. Polk
James Polk was in an interesting position to comment on Congressional requests for documents and
testimony. In addition to serving as President, he served in the House of Representatives from 1825 to
1839, serving as Speaker of the House for the final four years.
As noted by one of the Connecticut Supreme Court Justices during Office of the Governor v. Select
Committee of Inquiry, President Polk made a “statement regarding impeachment proceeding in which
he quite clearly said anybody and he didn’t exclude the president can be summoned not only to
produce documents but to testify.”
On the other hand, as President, Polk was extremely reluctant to turn over documents to Congress and
heavily edited or advised editing of any documents the executive had to turn over. Presumably this was
an expression of some concern about preserving the Separation of Powers.
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