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ArtII.S2.C3.2.4.1.1 Presidential Immunity to Criminal and Civil Suits: Civil Cases

Article II, Section 2, Clause 3:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

In Mississippi v. Johnson,1 in 1867, the Court placed the President beyond the reach of judicial direction, either affirmative or restraining, in the exercise of his powers, whether constitutional or statutory, political or otherwise, save perhaps for what must be a small class of powers that are purely ministerial.2 An application for an injunction to forbid President Johnson to enforce the Reconstruction Acts, on the ground of their unconstitutionality, was answered by Attorney General Stanberg, who argued, inter alia, the absolute immunity of the President from judicial process.3 The Court refused to permit the filing, using language construable as meaning that the President was not reachable by judicial process but which more fully paraded the horrible consequences were the Court to act. First noting the limited meaning of the term ministerial, the Court observed that [v]ery different is the duty of the President in the exercise of the power to see that the laws are faithfully executed, and among these laws the acts named in the bill. . . . The duty thus imposed on the President is in no just sense ministerial. It is purely executive and political.

An attempt on the part of the judicial department of the government to enforce the performance of such duties by the President might be justly characterized, in the language of Chief Justice Marshall, as ‘an absurd and excessive extravagance.’

It is true that in the instance before us the interposition of the court is not sought to enforce action by the Executive under constitutional legislation, but to restrain such action under legislation alleged to be unconstitutional. But we are unable to perceive that this circumstance takes the case out of the general principles which forbid judicial interference with the exercise of Executive discretion. . . .

The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance.

The impropriety of such interference will be clearly seen upon consideration of its possible consequences.

Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal? And in that case could this court interfere, in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court?4

Rare has been the opportunity for the Court to elucidate its opinion in Mississippi v. Johnson, and, in the Watergate tapes case,5 it held the President amenable to subpoena to produce evidence for use in a criminal case without dealing, except obliquely, with its prior opinion. The President’s counsel had argued the President was immune to judicial process, claiming that the independence of the Executive Branch within its own sphere . . . insulates a President from a judicial subpoena in an ongoing criminal prosecution, and thereby protects confidential Presidential communications.6 However, the Court held, neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.7 The primary constitutional duty of the courts to do justice in criminal prosecutions was a critical counterbalance to the claim of presidential immunity, and to accept the President’s argument would disturb the separation-of-powers function of achieving a workable government as well as gravely impair the role of the courts under Art. III.8

Present throughout the Watergate crisis, and unresolved by it, was the question of the amenability of the President to criminal prosecution prior to conviction upon impeachment.9 It was argued that the Impeachment Clause necessarily required indictment and trial in a criminal proceeding to follow a successful impeachment and that a President in any event was uniquely immune from indictment, and these arguments were advanced as one ground to deny enforcement of the subpoenas running to the President.10 Assertion of the same argument by Vice President Agnew was controverted by the government, through the Solicitor General, but, as to the President, it was argued that for a number of constitutional and practical reasons he was not subject to ordinary criminal process.11

Putting to the side the question of whether a sitting President is immune from indictment and criminal prosecution,12 the Court has squarely resolved that the President may be required to testify or produce documents in criminal proceedings when called upon by the courts.13 This principle dates to the earliest days of the Republic, when Chief Justice John Marshall presided as the Circuit Justice for Virginia over the infamous treason trial of Aaron Burr. In that case, Chief Justice Marshall concluded that President Thomas Jefferson could be subject to a subpoena to provide a document relevant to the trial.14 Specifically, he declared that, in contrast to common law privileges afforded the King of England, the President was not exempt from the general provisions of the constitution, like the Sixth Amendment, that provide for compulsory process for the defense.15 Nonetheless, Chief Justice Marshall recognized that while the President could be subject to a criminal subpoena, the President could still withhold information from disclosure based on the existence of a privilege.16 In the two centuries since the Burr trial, historical practice by the executive branch17 and Supreme Court rulings unequivocally and emphatically endorsed Chief Justice Marshall's position that the President was subject to federal criminal process.18 In 2020, the Court extended this precedent to the context of a state criminal proceeding, concluding that the President was not absolutely immune from state criminal subpoenas.19

Finally, with respect to civil liability, the Court has held that the President is absolutely immune in actions for civil damages for all acts within the outer perimeter of his official duties.20 The Court’s close decision was premised on the President’s unique position in the constitutional scheme, that is, it was derived from the Court’s inquiry of a kind of ‘public policy’ analysis of the policies and principles that may be considered implicit in the nature of the President’s office in a system structured to achieve effective government under a constitutionally mandated separation of powers.21 Although the Constitution expressly afforded Members of Congress immunity in matters arising from speech or debate, and although it was silent with respect to presidential immunity, the Court nonetheless considered such immunity a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.22 Although the Court relied in part upon its previous practice of finding immunity for officers, such as judges, as to whom the Constitution is silent, although a long common-law history exists, and in part upon historical evidence, which it admitted was fragmentary and ambiguous,23 the Court’s principal focus was upon the fact that the President was distinguishable from all other executive officials. He is charged with a long list of supervisory and policy responsibilities of utmost discretion and sensitivity,24 and diversion of his energies by concerns with private lawsuits would raise unique risks to the effective functioning of government.25 Moreover, the presidential privilege is rooted in the separation-of-powers doctrine, counseling courts to tread carefully before intruding. Some interests are important enough to require judicial action; merely private suit[s] for damages based on a President’s official acts do not serve this broad public interest necessitating the courts to act.26 Finally, qualified immunity would not adequately protect the President, because judicial inquiry into a functional analysis of his actions would bring with it the evil immunity was to prevent; absolute immunity was required.27

Unofficial Conduct

In Clinton v. Jones,28 the Court, in a case of first impression, held that the President did not have qualified immunity from civil suit for conduct alleged to have taken place prior to his election, and therefore denied the President's request to delay both the trial and discovery. The Court held that its precedents affording the President immunity from suit for his official conduct – primarily on the basis that he should be enabled to perform his duties effectively without fear that a particular decision might give rise to personal liability—were inapplicable in this kind of case. Moreover, the separation-of-powers doctrine did not require a stay of all private actions against the President. Separation of powers is preserved by guarding against the encroachment or aggrandizement of one of the coequal branches of the government at the expense of another. However, a federal trial court tending to a civil suit in which the President is a party performs only its judicial function, not a function of another branch. No decision by a trial court could curtail the scope of the President’s powers. The trial court, the Supreme Court observed, had sufficient powers to accommodate the President’s schedule and his workload, so as not to impede the President’s performance of his duties. Finally, the Court stated its belief that allowing such suits to proceed would not generate a large volume of politically motivated harassing and frivolous litigation. Congress has the power, the Court advised, if it should think necessary to legislate, to afford the President protection.29

Footnotes

  1.  Jump to essay-171 U.S. (4 Wall.) 475 (1867).
  2.  Jump to essay-2The Court declined to express an opinion whether, in any case, the President of the United States may be required, by the process of this court, to perform a purely ministerial act under a positive law, or may be held amenable, in any case, otherwise than by impeachment for crime. 71 U.S. at 498. See Franklin v. Massachusetts, 505 U.S. 788, 825–28 (1992) (Justice Scalia concurring). In NTEU v. Nixon, 492 F.2d 587 (D.C. Cir. 1974), the court held that a writ of mandamus could issue to compel the President to perform a ministerial act, although it said that if any other officer were available to whom the writ could run it should be applied to him.
  3.  Jump to essay-3Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 484–85 (1867) (argument of counsel).
  4.  Jump to essay-471 U.S. at 499, 500–01. One must be aware that the case was decided in the context of congressional predominance following the Civil War. The Court’s restraint was pronounced when it denied an effort to file a bill of injunction to enjoin enforcement of the same acts directed to cabinet officers. Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1868). Before and since, however, the device to obtain review of the President’s actions has been to bring suit against the subordinate officer charged with carrying out the President’s wishes. Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524 (1838); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Congress has not provided process against the President. In Franklin v. Massachusetts, 505 U.S. 788 (1992), resolving a long-running dispute, the Court held that the President is not subject to the Administrative Procedure Act and his actions, therefore, are not reviewable in suits under the Act. Inasmuch as some agency action, the acts of the Secretary of Commerce in this case, is preliminary to presidential action, the agency action is not final for purposes of APA review. Constitutional claims would still be brought, however. See also, following Franklin, Dalton v. Specter, 511 U.S. 462 (1994).
  5.  Jump to essay-5United States v. Nixon, 418 U.S. 683 (1974).
  6.  Jump to essay-6418 U.S. at 706.
  7.  Jump to essay-7Id.
  8.  Jump to essay-8418 U.S. at 706–07. The issue was considered more fully by the lower courts. In re Grand Jury Subpoena to Richard M. Nixon, 360 F. Supp. 1, 6–10 (D.D.C. 1973) (Judge Sirica), aff’d sub nom., Nixon v. Sirica, 487 F.2d 700, 708–712 (D.C. Cir. 1973) (en banc) (refusing to find President immune from process). Present throughout was the conflicting assessment of the result of the subpoena of President Jefferson in the Burr trial. United States v. Burr, 25 F. Cas. 187 (No. 14694) (C.C.D.Va. 1807). For the history, see Freund, Foreword: On Presidential Privilege, The Supreme Court, 1973 Term, 88 Harv. L. Rev. 13, 23–30 (1974).
  9.  Jump to essay-9The Impeachment Clause, Article I, § 3, cl. 7, provides that the party convicted upon impeachment shall nonetheless be liable to criminal proceedings. Morris in the Convention, 2 The Records of the Federal Convention of 1787, at 500 (Max Farrand ed., 1937), and Hamilton in The Federalist Nos. 65, 69, at 442, 463 (Alexander Hamilton) (Jacob E. Cooke ed., 1961), asserted that criminal trial would follow a successful impeachment.
  10.  Jump to essay-10Brief for the Respondent, United States v. Nixon, 418 U.S. 683 (1974), 95-122; Nixon v. Sirica, 487 F.2d 700, 756–58 (D.C. Cir. 1973) (en banc) (Judge MacKinnon dissenting). The Court had accepted the President’s petition to review the propriety of the grand jury’s naming him as an unindicted coconspirator, but it dismissed that petition without reaching the question. United States v. Nixon, 418 U.S. at 687 n.2.
  11.  Jump to essay-11Memorandum for the United States, Application of Spiro T. Agnew, Civil No. 73-965 (D.Md., filed October 5, 1973).
  12.  Jump to essay-12See Memorandum from Randolph D. Moss, Assistant Atty. Gen., Office of Legal Counsel to the Atty. Gen.: A Sitting President's Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222, 257 (Oct. 16, 2000) (recognizing that [n]o court has addressed the question directly, but expressing the view that a sitting President is constitutionally immune from indictment and criminal prosecution).
  13.  Jump to essay-13See Trump v. Vance, 140 S. Ct. 2412, 2420 (2020) (recognizing that the public has a right to every man's evidence).
  14.  Jump to essay-14See United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807) (No. 14,692D).
  15.  Jump to essay-15See id. (observing that while the King is born to power and can do no wrong, the President, by contrast is of the people and subject to the law).
  16.  Jump to essay-16See United States v. Burr, 25 F. Cas. 187, 192 (C.C.D. Va. 1807) (No. 14,694).
  17.  Jump to essay-17See Vance, 140 S. Ct. at 2423 (discussing historical practices of Presidents Monroe, Grant, Ford, Carter, and Clinton).
  18.  Jump to essay-18Clinton v. Jones, 520 U.S. 681, 704 (1997) (citing United States v. Nixon, 418 U.S. 683, 706 (1974)). In rejecting separation-of-powers challenges to claims that the President is immune from federal criminal process, the Court rejected the argument that criminal subpoenas rise to the level of constitutionally forbidden impairment of the Executive's ability to perform its constitutionally mandated functions. Id. at 702–03.
  19.  Jump to essay-19See Vance, 140 S. Ct. at 2425–29 (rejecting the categorical argument that state criminal subpoenas would unduly distract the President, impose a stigma on the presidency, or result in harassment by state prosecutors). The Vance Court also rejected the argument that a state prosecutor should have to satisfy a heightened standard of need before seeking a sitting President's records, absent any constitutional privileges. Id. at 2429–31. Importantly, in Vance, the state prosecutor was seeking private presidential records, and no claim of executive privilege was at stake. Id. at 2431 (Kavanaugh, J., concurring in the judgment). The Court refused to extend the heightened-need standard established in Nixon to private records, discussed infra, reasoning that: (1) Burr and its progeny foreclosed that argument; (2) the heightened-need standard was unnecessary to allow the President to fulfill his Article II functions; and (3) the public interest in fair and effective law enforcement favors comprehensive access to evidence. Id. at 2429–30 (majority opinion).
  20.  Jump to essay-20Nixon v. Fitzgerald, 457 U.S. 731 (1982).
  21.  Jump to essay-21457 U.S. at 748.
  22.  Jump to essay-22457 U.S. at 749.
  23.  Jump to essay-23457 U.S. at 750–52 n.31.
  24.  Jump to essay-24457 U.S. at 750.
  25.  Jump to essay-25457 U.S. at 751.
  26.  Jump to essay-26457 U.S. at 754.
  27.  Jump to essay-27457 U.S. at 755–57. Justices White, Brennan, Marshall, and Blackmun dissented. The Court reserved decision whether Congress could expressly create a damages action against the President and abrogate the immunity, id. at 748–49 n.27, thus appearing to disclaim that the decision is mandated by the Constitution; Chief Justice Burger disagreed with the implication of this footnote, id. at 763–64 n.7 (concurring opinion), and the dissenters noted their agreement on this point with the Chief Justice. Id. at 770 & n.4.
  28.  Jump to essay-28520 U.S. 681 (1997).
  29.  Jump to essay-29The Court observed at one point that it doubted that defending the suit would much preoccupy the President, that his time and energy would not be much taken up by it. If the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the Presidency. 520 U.S. at 702.
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