Later On

A blog written for those whose interests more or less match mine.

Can a President’s Absolute Immunity be Trumped?

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Steve Vladeck and Benjamin Wittes write in Lawfare:

 It’s time to think hard about Nixon v. Fitzgerald.

Fitzgerald isn’t really part of the national security law canon; it’s a 1982 Supreme Court decision that is often cited for the proposition that the President has “absolute immunity” (meaning he cannot be sued in his personal capacity) for any acts he undertakes while he is President.

We’re about to experience a flood of litigation testing what the case really means.

For most of American history, a sitting President’s immunity from civil litigation has been a subject of academic curiosity, but little real-world interest. Presidents get sued daily, of course, but usually in their capacity as head of the federal government, where—for the most part—Congress has waived any immunity. They generally don’t get sued in a manner that seeks to hold them personally liable.

Fitzgerald is one of the reasons. Although the Court held 15 years after deciding Fitzgerald, in Clinton v. Jones, that the same principle didn’t immunize a sitting President from civil litigation (in federal court, anyway) arising out of acts he took before assuming office, the working assumption for the past 35 years has been that inauguration is a bright constitutional line, and that the President is categorically free from civil liability for misdeeds that take place on the far side of his oath.

The problem is that Fitzgerald does not quite say what it’s cited to mean—and neither does Jones. And Donald Trump’s peculiar personality and bizarre mixing of his personal and official personas seems sure to test the parameters of the extant doctrine.

Consider: He is already being sued for incitement to violence at a campaign rally. He has, according to more than a dozen women, sexually harassed or assaulted them—and one of his accusers is now suing him for defamation after he claimed that she fabricated the charges. He says things about people using his Twitter account, like that they illegally “wire tapped” him, that might normally give rise to a defamation suit. And he is, well, careless about certain ethics rules and business practices in a fashion that might normally create exposure—even while maintaining giant business holdings as President.

Recently, Quinta Jurecic wrote a lengthy post on Trump’s two Twitter personas as a modern presentation of the medieval notion of the “King’s Two Bodies.” Fitzgerald and Jones are legal manifestations of the same idea: That the executive has a human form no different from any other person’s and an institutional form that is untouchable.

But on a closer reading of both cases, we think that the doctrine of absolute presidential immunity has some important caveats—some of which may bear prominently upon some of the current suits against President Trump and some of which may give rise to others.  When you’re in Jones land and when you’re in Fitzgerald land turns out not be clear. And we think it likely that just how much immunity the president will receive under existing doctrine will depend more upon the nature of the specific claims than most commentators appear to have realized.

The Fitzgerald Ruling

In Fitzgerald, the Court faced the question of whether a discharged former Air Force employee could pursue a civil damages suit against former President Richard Nixon based upon a claim that he was fired at President Nixon’s specific behest in direct retaliation for his whistleblowing testimony before a congressional committee. The Supreme Court ruled, by a 5-to-4 vote, that Fitzgerald’s claims were barred by President Nixon’s absolute immunity from suit. The language of the decision is famously broad.

Writing for the Court, Justice Lewis Powell spent some time walking through the origins of official immunity doctrines, and the genesis of the Court’s prior recognitions of absolute immunity for judges when acting in their judicial capacity and prosecutors when acting in their prosecutorial capacities (along with the Constitution’s codification of comparable immunity for legislators). In light of those immunity doctrines and the unique structural role and constitutional status of the President of the United States, the Court concluded that Nixon was “entitled to absolute immunity from damages liability predicated on his official acts. We consider this 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.” And although Justice White, in what for him was an unusually acerbic dissent, accused the majority of derogating its judicial role, Powell fired back that other mechanisms existed to ensure presidential fealty to legal constraints:

A rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive. There remains the constitutional remedy of impeachment. In addition, there are formal and informal checks on Presidential action that do not apply with equal force to other executive officials. The President is subjected to constant scrutiny by the press. Vigilant oversight by Congress also may serve to deter Presidential abuses of office, as well as to make credible the threat of impeachment. Other incentives to avoid misconduct may include a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a President’s traditional concern for his historical stature.

What activity does Fitzgerald cover? . . .

Continue reading.

Written by LeisureGuy

10 May 2017 at 2:11 pm

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