Presidential immunity

• It is frequently argued that impeachment is exclusive sanction for improper conduct by sitting president. (is there structural argument for this view, based on USC text?)

• Note that USC does not create any express presidential immunity from judicial process.

• Is such immunity a proper inference from impeachment provision?

• Is impeachment too blunt/crude instrument for handling isolated illegal acts by president?

• To what extent does Nixon reject inference that impeachment is exclusive route?

• Note that while Truman was not named defendant in Youngstown, his order was in fact subject of SC’s injunction.

Mississippi V. Johnson

• 1867. SC refused to hear suit attempting to enjoin president’s enforcement of reconstruction laws. SC concluded that courts did not have power to issue injunction against president, given difficulties of enforcement and alternative route of impeachment.

Nixon V. Fitzgerald

• Powell 1982. The President has absolute immunity from civil liability for his official acts. SC held by 5-4 vote that Nixon was immune from action for damages from P claiming he was discharged from government position because he exercised his right to freedom of speech.

• SC reasoned that prominence of president’s office makes president easy target for suits for civil damages; vulnerability to such suits would distract president from his public duties to detriment not only of presidency as office, but also the nation.

• In response to suggestion that absolute immunity would leave nation unprotected against presidential misconduct, SC argued that numerous safeguards are already in place: impeachment, scrutiny by press, Congressional oversight, desire to win re-election, need to maintain prestige as element of influence, president’s concern for historical stature.

• SC left open question whether Congress might constitutionally subject president to liability for damages.

• White Dissent:

1. Speech and Debate Clause (which provides protection for members of Congress) has no counterpart in USC giving any sort of immunity to members of Executive Branch. Thus, any presidential immunity is derived from constitutional separation of powers and public policy.

2. Courts had previously held that president was not immune from suits for injunctive relief or other sorts of judicial process.

3. President should have same remedial obligations toward those whom he inures as any other federal officer. Result of this rule should be to deter unconstitutional, or otherwise illegal, behavior.

Harlow V. Fitzgerald

• 1982. Nixon v. Fitzgerald ruling above should not be extended to presidential aides.

Clinton V. Jones

• What is the implication of Nixon v. Fitzgerald for the adjudication of claims of presidential misconduct that do not relate to service in office? SC rejected president’s claim of temporary immunity from civil suit while he is in office.

• Stevens (majority. Unpersuaded that effective performance of president’s office will be impaired, because he deems case “highly unlikely to occupy any substantial amount of president’s time.”

• Breyer Concurrence. Trial judge may have good reason to postpone trial date if president offers reasoned explanation for necessity of such postponement.

• Koppelman. Does the Lewinski matter have any relevance to our assessment of the result reached by the SCt here?