718
Breyer, J., concurring in judgment
The first set of precedents tells us little about what the Constitution commands, for they amount to voluntary actions on the part of a sitting President. The second set of precedents amounts to a search for documents, rather than a direct call upon Presidential time. More important, both sets of precedents involve criminal proceedings in which the President participated as a witness. Criminal proceedings, unlike private civil proceedings, are public acts initiated and controlled by the Executive Branch; see United States v. Nixon, 418 U. S., at 693-696; they are not normally subject to postponement, see U. S. Const., Amdt. 6; and ordinarily they put at risk, not a private citizen's hope for monetary compensation, but a private citizen's freedom from enforced confinement, 418 U. S., at 711-712, and n. 19; Fitzgerald, 457 U. S., at 754, n. 37. See also id., at 758, n. 41. Nor is it normally possible in a criminal case, unlike many civil cases, to provide the plaintiff with interest to compensate for scheduling delay. See, e. g., Winter v. Cerro Gordo County Conservation Bd., 925 F. 2d 1069, 1073 (CA8 1991); Foley v. Lowell, 948 F. 2d 10, 17-18 (CA1 1991); Wooten v. McClendon, 272 Ark. 61, 62-63, 612 S. W. 2d 105, 106 (1981).
The remaining precedent to which the majority refers does not seem relevant in this case. That precedent, Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 585 (1952), concerns official action. And any Presidential time spent dealing with, or action taken in response to, that kind of case is part of a President's official duties. Hence court review in such circumstances could not interfere with, or distract from, official duties. Insofar as a court orders a President, in any such a proceeding, to act or to refrain from action, it defines, or determines, or clarifies the legal scope of an official duty. By definition (if the order itself is lawful), it cannot impede, or obstruct, or interfere with the President's basic task— the lawful exercise of his Executive authority. Indeed, if constitutional principles counsel caution when judges consider an order that directly requires the President properly
Page: Index Previous 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 NextLast modified: October 4, 2007