Presidential Immunity

Presidential Immunity From Judicial Direction

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.”

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“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.” . . .

Presidential Immunity: Developments

“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

Other Aspects

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

Other Issues

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

More

Finally, most recently, the Court has definitively resolved one of the intertwined issues of presidential accountability. The President is absolutely immune in actions for civil damages for all acts within the “outer perimeter” of his official duties.12 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.” 13 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.” 14 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,15 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,” 16 and diversion of his energies by concerns with private lawsuits would “raise unique risks to the effective functioning of government.” 17 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.18 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.19

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References

This text about Presidential Immunity is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

Notes

[Footnote 1] 71 U.S. (4 Wall.) 475 (1867).

[Footnote 2] The 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.

[Footnote 3] Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 484-85 (1867) (argument of counsel).

[Footnote 4] 71 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 (1867). 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).

[Footnote 5] United States v. Nixon, 418 U.S. 683 (1974).

[Footnote 6] 418 U.S. at 706.

[Footnote 7] Id.

[Footnote 8] 418 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 Fed. Cas. 187 (No. 14,694) (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).

[Footnote 9] The 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 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 500 (rev. ed. 1937), and Hamilton in THE FEDERALIST, Nos. 65, 69 (J. Cooke ed. 1961), 442, 463, asserted that criminal trial would follow a successful impeachment.

[Footnote 10] Brief 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.

[Footnote 11] Memorandum for the United States, Application of Spiro T. Agnew, Civil No. 73-965 (D.Md., filed October 5, 1973).

[Footnote 12] Nixon v. Fitzgerald, 457 U.S. 731 (1982).

[Footnote 13] 457 U.S. at 748.

[Footnote 14] 457 U.S. at 749.

[Footnote 15] 457 U.S. at 750-52 n.31.

[Footnote 16] 457 U.S. at 750.

[Footnote 17] 457 U.S. at 751.

[Footnote 18] 457 U.S. at 754.

[Footnote 19] 457 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.