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RUBIN, SECRETARY OF THE TREASURY, ET AL. v. UNITED STATES, ACTING THROUGH THE INDEPENDENT COUNSEL - 524 U.S. 1301 (1998)
OCTOBER TERM, 1997
RUBIN, SECRETARY OF THE TREASURY, ET AL. v.
UNITED STATES, ACTING THROUGH THE INDEPENDENT COUNSEL
ON APPLICATION FOR STAY
No. A-53 (98-93). Decided July 17, 1998
The Secretary of the Treasury's application to stay the Court of Appeals' decision to enforce subpoenas pending a decision on certiorari is denied. He has not demonstrated that the interim enforcement of subpoenas requiring the President's protectors to testify before a federal grand jury investigating the President will cause irreparable harm. Nor has he shown a likelihood that this Court, assuming it granted certiorari and heard the case, would reverse the Court of Appeals' judgment.
CHIEF JUSTICE REHNQUIST, Circuit Justice.
This case is before me as Circuit Justice on the application for stay submitted by the Solicitor General, on behalf of the Secretary of the Treasury Robert E. Rubin. Because several of my colleagues are out of the country, I have decided to rule on the matter myself rather than refer it to the Conference.
An applicant for stay first must show irreparable harm if a stay is denied. In my view, the applicant has not demonstrated that denying a stay and enforcing the subpoenas pending a decision on certiorari would cause irreparable harm. The Secretary identifies two injuries that would result from denying a stay: any privileged information would be lost forever and the important interests that the "protective function privilege" protects would be destroyed. I cannot say that any harm caused by the interim enforcement of the subpoenas will be irreparable. If the Secretary's claim
Opinion in Chambers
of privilege is eventually upheld, disclosure of past events will not affect the President's relationship with his protectors in the future. On balance, the equities do not favor granting a stay.
An applicant for stay must also show that there is a likelihood that four Members of this Court will grant certiorari to review the decision of the Court of Appeals on the merits. This case is obviously not a run-of-the-mine dispute, pitting as it does the prosecution's need for testimony before a grand jury against claims involving the safety and protection of the President of the United States. I shall assume, without deciding, that four Members of this Court on that basis would grant certiorari.
But a stay applicant must also show that there is a likelihood that this Court, having granted certiorari and heard the case, would reverse the judgment of the Court of Appeals. The applicant simply has not made that showing to my satisfaction, and I believe my view would be shared by a majority of my colleagues. The opinion of the Court of Appeals seems to me cogent and correct. The District Court which considered the matter was also of that view, and none of the nine judges of the Court of Appeals even requested a vote on the applicant's suggestion for rehearing en banco
The application for stay is accordingly denied.
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