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Rubin v. United States

November 09, 1998


The opinion of the court was delivered by: Justice Ginsberg

Breyer, J., Dissenting

ROBERT RUBIN, SECRETARY OF TREASURY, et al. v. UNITED STATES, through the independent counsel on petition for writ of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit

The petition for a writ of certiorari is denied.

Justice Ginsburg, Dissenting from the denial of certiorari.

I agree with Justice Breyer that this Court, and not a Court of Appeals, ought to be the definitive judicial arbiter in this case. The matter is grave and the competency of the Judiciary (as opposed to the Legislature) to craft the privilege in question is genuinely debatable. Today's Disposition, I note, does not in any sense constitute a ruling on the merits of the issue presented. See, e.g., Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, 525 U. S. ___ (1998) (Stevens, J., respecting denial of certiorari).

Justice Breyer, Dissenting from the denial of certiorari.

This petition raises the question whether federal law recognizes a special Secret Service evidentiary privilege which, in effect, would permit a Secret Service agent protecting the President to refuse to testify unless he saw or heard conduct or statements that were clearly criminal. To put the matter more precisely, the Secret Service claims a privilege that would protect

"information obtained by Secret Service personnel while performing their protective function in physical proximity to the President,"

except that it would not apply

"in the context of a federal investigation or prosecution, to bar testimony by an officer or agent concerning observations or statements that, at the time they were made, were sufficient to provide reasonable grounds for believing that a felony has been, is being, or will be committed." In re: Sealed Case, 148 F. 3d 1073, 1075 (CADC 1998) (internal quotation marks omitted).

The Court of Appeals denied the existence of such a privilege. The Secretary of the Treasury asks this Court to review that determination.

I believe the question is important and that this Court should grant review. The physical security of the President of the United States has a special legal role to play in our constitutional system. The Constitution vests the entire "Power" of one branch of Government in that single human being, the "President" of the United States. Art. II, § 1, cl. 1. He is the head of state. He and the Vice President are the only officials for whom the entire Nation votes. And he is responsible for the actions of the Executive Branch in much the same way that the entire Congress is responsible for the actions of the Legislative Branch or the entire Judiciary for those of the Judicial Branch. He has been called " 'the sole indispensable man in government.' " Jones v. Clinton, 520 U. S. 681, 713 (1997) (Breyer, J., Concurring in judgment) (quoting P. Kurland, Watergate and the Constitution 135 (1978)). Thus, one could reasonably believe that the law should take special account of the obvious fact that serious physical harm to the President is a national calamity -- by recognizing a special governmental privilege where needed to help avert that calamity.

Moreover, the federal courts themselves have adequate legal authority to develop an evidentiary privilege that will materially help to ensure the physical safety of the President. Federal Rule of Evidence 501 says that "the privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." This Court has held that this Rule "did not freeze the law governing the privileges of witnesses in federal trials at a particular point in our history, but rather directed federal courts to continue the evolutionary development of testimonial privileges." Jaffee v. Redmond, 518 U. S. 1, 9 (1996) (internal quotation marks omitted). See also United States v. Weber Aircraft Corp., 465 U. S. 792, 804, n. 25 (1984) ("Rule 501 was adopted precisely because Congress wished to leave privilege questions to the courts rather than attempt to codify them"). The Court has suggested that a privilege will apply where permitting a refusal to testify serves " `a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.' " Trammel v. United States, 445 U. S. 40, 50 (1980) (quoting Elkins v. United States, 364 U. S. 206, 234 (1960) (Frankfurter, J., Dissenting)). The Court of Appeals recognized that the President's physical safety amounts to the kind of transcendent public good that, in principle, might justify the recognition of a new privilege here, In re: Sealed Case, supra, at 1076, just as important public need has led the courts to recognize new privileges in other cases, Jaffee v. Redmond, supra; Upjohn Co. v. United States, 449 U. S. 383, 394-95 (1981) (extending attorney-client privilege to cases involving communication between a corporation's employees acting at the direction of its officers and the corporation's attorney); Totten v. United States, 92 U. S. 105, 107 (1876) (state secrets privilege); cf. 8 J. Wigmore, Evidence §§ 2290, 2333 (J. McNaughton rev. 1961) (explaining how common-law courts developed lawyer-client privilege and spousal privilege between the 16th and 19th centuries).

I concede that this Court, when analyzing a new claim of privilege, has looked to the ability of the privilege to win acceptance in federal courts and other jurisdictions. Jaffee v. Redmond, supra, at 12-13; Trammel v. United States, supra, at 47-50. There is no precedent for the privilege claimed in this case. But, as the Court of Appeals pointed out, the lack of precedent is "hardly surprising," for this "appears to be the first effort in U. S. history to compel testimony by agents guarding the President." In re: Sealed Case, 148 F. 3d, at 1076. For that reason, the Court of Appeals ...

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