Vice Presidential Secrecy: A Study in Comparative Constitutional Privilege and Historical Development
Vice Presidential Secrecy: A Study in Comparative Constitutional Privilege and Historical Development
Roy E. Brownell II
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ROY E. BROWNELL II†
INTRODUCTION.............................................................................426
CONSTITUTIONAL STRUCTURE AND COMPARATIVE
CONSTITUTIONAL PRIVILEGE .......................................................437
† 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.
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
2010]
VICE PRESIDENTIAL SECRECY
425
ARGUMENTATION: DOES A CONSTITUTIONAL PRIVILEGE EXIST
FOR THE VICE PRESIDENT? ..........................................................567
ST. JOHN’S LAW REVIEW
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
COPRESIDENCY 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 occurred over time. Although
scholars differ on the length of the period, the key dates, and the weight to
attach to particular events, it seems clear that the evolution began during
the twentieth century and accelerated sometime after World War II. [In the
first quarter of the twentieth century,] Vice presidents began to find some
work in the executive branch. Wilson’s vice president Thomas Marshall, and
his successor, Calvin Coolidge, attended some cabinet meetings. . . . [With a
brief pause during the Charles Dawes vice presidency, this custom] has
continued since that time. [John Nance] Garner and Henry Wallace
assumed some executive duties as legislative liaison, foreign emissary, and
commission head. These involvements . . . symbolized a migration of the
office to the executive branch. . . . The vice presidency of Richard M. Nixon
first illustrated the modern American vice presidency [as he] . . . functioned
essentially as a member of the executive branch.
One of the issues that arose at several junctures during Cheney’s
tenure was his determination to conduct his official activities
confidentially. This prompted a series of clashes with members
of Congress and outside groups as they tried to gain access to
Cheney’s internal deliberations.3 These conflicts, several of
which were litigated,4 led many commentators to assert that
Cheney was exercising what amounted to an illegitimate vice
presidential privilege.5
While the President’s exercise of executive privilege has been
covered exhaustiv (...truncated)