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

St. John's Law Review, Oct 2011

By Roy E. Brownell II, Published on 10/13/11

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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 Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation 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)


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Roy E. Brownell II. Vice Presidential Secrecy: A Study in Comparative Constitutional Privilege and Historical Development, St. John's Law Review, 2011, Volume 84, Issue 2,