Reply #89: A truly weird decision [View All]

[happyslug]

What I mean by Weird is the Decision was to send back the case to the Court of Appeals to re-weigh the evidence that court has already said was insufficient to support an Order STOPPING THE TRIAL COURT'S DISCOVERY ORDER.

The opinion was written by "KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O’CONNOR, and BREYER, JJ., joined, and in which SCALIA and THOMAS, JJ., joined as to Parts I, II, III, and IV. STEVENS, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in part and dissenting in part, in which SCALIA, J., joined. GINSBURG, J., filed a dissenting opinion, in which SOUTER, J., joined.". Thus is a 5-2-2 Decision not a 7-2 Decision.

The Final Decision was agreed to by Kennedy, Rehnquist, Stevens, O’Connor and Breyer. The opinion was in Four Parts (which follows). They remand the Case to the Court of Appeals to weigh the Rights of the Litigates to Obtain needed Evidence in their Case against the Government AND the Right of the Executive Branch to minimal interference by the Judicial Branch of the Government.

Scalia and Thomas agreed to Parts I, II, III and IV but rejects the Remand Order of Part V of the Majority Decision. This Rejection was based that their belief that the Discovery Order Signed by the Trial Judge was to broad and thus excessively interferes with the Workings of the Executive Branch.

Ginsburg and Souter dissented on the ground that the Government at the Trial Court Level had NEVER made a request to Restrict the Discovery Request on the Ground of Executive Privilege, instead claimed an ABSOLUTE RIGHT TO REJECT ANY AND ALL DISCOVERY REQUESTS. Ginsburg and Souter rejects this absolute Right of Executive Privilege and points out the best place to restrict the Request is at the Trial Level and the Government has NEVER made such a request. Since the Government has NEVER given the trial Judge the opportunity to restrict the Discovery, the requirements for a Writ of Mandamus have never been meet and the decision of the Court of Appeals should have been upheld.

The Opinion by Parts:

Part 1 - This is the history of the Case from District Court through the Court of Appeals. It also defines the following:

FACA means the Federal Advisory Committee Act (FACA or Act), 5 U. S. C. App. §2, p. 1.]

NEPDG is the National Energy Policy Development Group or Cheney's Energy Task force.

APA is the Administrative Procedure Act, 5 U. S. C. §706.

Please note that the Trial Court did order Discovery (the Right of a Party to get information and Evidence from the opposing side in most litigation). It was this Discovery Request that the Government objected to. As part of that objection the Government requested a "Writ of Mandamus" from the Court of Appeals to the Trial Court, ordering the Trial Court to STOP ALL AND ANY DISCOVERY REQUEST by the Plaintiffs. The Court of Appeals Rejected the Request for the Writ of Mandamus and the Government appealed to the Supreme Court.

Part II - This is the issue that the Government request for the Writ of Mandamus was filed to late. The Supreme Court basically said that question is best determined by the Court of Appeals when the Court of Appeals decides on the Writ of Mandamus based on the Directions given in the subsequent Parts of the Supreme Court opinion.

Part III - "We now come to the central issue in the case “whether the Court of Appeals was correct to conclude it “ha no authority to exercise the extraordinary remedy of mandamus,” 334 F. 3d, at 1105, on the ground that the Government could protect its rights by asserting executive privilege in the District Court." i.e. the Government should have made motions to restrict discovery with the Trial court based on Executive Privilege instead of filing the Writ of Mandamus?

The Court than goes on a defines the conditions when a appellant court can issue a “Writ of Mandamus”:

First, “the party seeking issuance of the writ have no other adequate means to attain the relief he desires....a condition designed to ensure that the writ will not be used as a substitute for the regular appeals process,”

Second, the petitioner must satisfy “‘the burden of showing that right to issuance of the writ is ‘clear and indisputable.’”

Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.

The Court than goes on that Given the nature of the Executive Branch any Judicial Act against the Executive must take into consideration the nature of the Presidency and to balance between the concept that the Actions against the President is NOT THE SAME AS AN ACTION AGAINST A REGULAR CITIZEN but also the concept that the President is NOT ABOVE THE LAW.

It than distinguished the Court Order on Richard Nixon to turn over his Audio tapes as involving a CRIMINAL investigation as opposed to the Strictly Civil Action against Cheney and that in the Nixon Tape case there was no other way to obtain the needed evidence in a Criminal Investigation.

The Court also recognized that the Executive Branch is a highly visible target for Judicial Action, and as such the Judicial Branch MUST restrict actions against the Presidency to minimize wasting the Executive’s time and money defending itself against questionable litigation (but also to preserve the right of people to file legitimate litigation).

PART IV - Here the Court looks into the Opinion of the Appeal Court and Rejects the Appeals Court’s Decision that any request for a Writ of Mandamus by the Government was premature because the Government had not yet made a claim of Executive Privilege. The Supreme Court REJECTS the Decision of the of the Court of Appeals that the Executive Branch must first claim Executive Privilege before the Court will recognize the Privilege . The Court ruled instead that the COURT MUST RECOGNIZE EXECUTIVE PRIVILEGE EVEN IF IT IS NOT CLAIMED and RESTRICT ALL CLAIMS OF DISCOVERY TO REFLECT EXECUTIVE PRIVILEGE. The Court of Appeals has to balance between the rights of the Plaintiffs to justice with the Rights of the Executive Branch to minimize

Part V - THE ACTUAL DECISION - The Court Remains the Case to the Court of Appeals to weigh the Rights of the Plaintiffs with the Right of the Executive Privilege and to find a balance between the two.