On Presidential Immunity

by Jack R. Johnson 05.2024

If you are a literalist, as are many of our current Supreme Court justices claim to be, the assertion of sweeping presidential immunity that Trump has made should be a ‘no brainer’ as they say. In the U.S. Constitution there is no such thing as presidential immunity.  Period. Not in the various Bill of Rights amendments, nor in the body of the text. In fact, the only ‘immunity’ found in the Constitution revolves around congressional liability and freedom of movement. For example, members of Congress can’t be arrested on their way to Congress, (a rule designed to prevent the obstruction of congressional meetings.) And members of Congress can say whatever they want to on the floor, including something absolutely defamatory, and no one can sue them for it. So these are privileges and immunities granted to members of Congress, but the presidency doesn’t have any of them. The only privilege the President actually has spelled out in the Constitution is a guaranteed salary—that’s it. 

In the Constitutional Convention, James Madison actually said perhaps we ought to consider what privileges and immunities the president should have. And then turned around and did nothing, perhaps because all of our founding fathers were busy rejecting the privileges of royalty, like those declared by King George III. 

Saikrishna B. Prakash, a University of Virginia School of Law professor, points out that George Washington was involved in many legal disputes in his private capacity, and he never suggested that while he could sue other people, they couldn’t sue him. “In fact, there’s an order from a state court in Virginia while he’s president, enjoining him to deposit some assets with the court because he was an executor of an estate, and he wanted it settled.” Prakash goes on to describe an interesting anecdote where [Ulysses] Grant is frolicking on his horse, speeding up and down the streets of Washington. “And he gets stopped by a cop — a Black police officer — who says, you can’t do this, it’s illegal. And he gives him a warning, but the president does it [again] the next day, and the police officer actually takes Grant down to the police station, which is a form of arrest. There’s a scheduled trial date. Grant doesn’t show up and doesn’t contest that he was doing this, and he ends up paying a fine.” So Prakash argues that Grant evidently didn’t think that he was immune from arrest or criminal prosecution.

The first civil law suit actually brought directly against a sitting president didn’t occur until the Civil War era in Mississippi v. Johnson (1867), in which the Supreme Court of the United States ruled then President Andrew Johnson could not be sued. Spalding v. Vilas (1896) affirmed that federal cabinet officers had immunity for actions "more or less" within the scope of their duties. Barr v. Matteo (1959) extended this to all federal executive officials. So, despite having no language in the Constitution to support it, the Supreme Court’s precedents allow for immunity in civil liability matters for sitting presidents.  

That relative immunity was ratcheted up in 1978, when whistleblower A. Ernest Fitzgerald added former president Nixon to his suit against several officials involved in his firing from the Department of the Air Force. The U.S. Supreme Court ruled that a former or current president was absolutely immune from suit regarding acts within the "outer perimeter" of his duties (i.e., from civil suits directly linked to his role as the country’s chief executive), citing the president's "unique status under the Constitution." Notably four of the justices dissented objecting to the term absolute that could include willful violations of the Constitution (like those for which Trump is on trial.)

Trump’s immunity defense draws on Nixon v. Fitzgerald, which granted Richard Nixon immunity from Fitzgerald’s civil suit. Trump’s lawyers are arguing that under the U.S. Constitution, the exclusive method to proceed against a president for crimes allegedly committed in office is by impeachment in the House of Representatives and trial in the Senate. 

Prosecutor Jack Smith argued the Fitzgerald precedent, which found presidents enjoy absolute immunity from civil suits, does not apply to federal criminal prosecutions. That’s an entirely different matter, he argues.  Smith’s criminal case against Trump is based on four charges. Those stem from allegations that he promoted false claims of election fraud and urged the Justice Department to investigate them, tried to get Vice President Mike Pence to alter the election results when Congress was certifying Joe Biden’s win, and directed his supporters to storm the Capitol on January 6, 2021.

As Prakash has pointed out, “The Supreme Court has never held that a president is immune from criminal prosecution. It’s the Department of Justice that says that,” relying primarily on a memo written during the Nixon era. In 1973, amid the Watergate scandal, the Department of Justice's Office of Legal (OLC) issued a memorandum concluding that it is unconstitutional to prosecute a sitting president because the president "is the symbolic head of the Nation. To wound him by a criminal proceeding is to hamstring the operation of the whole governmental apparatus in both foreign and domestic affairs." The OLC issued a second memorandum in 2000, distinguishing civil and criminal presidential immunity, and determining that it was still improper to prosecute a President due to the adverse affect it might have on his ability to govern.

Neither memorandum has force of law, but both are binding within the Department of Justice. After a president leaves office, however, there are no such restrictions. The problem for the SCOTUS justices is that an “official act” of the presidency (in either a civil, or a criminal case) isn’t a term that’s rooted in the Constitution or a federal statute. It was created largely by the Supreme Court in Nixon v. Fitzgerald and earlier. The court said the president has absolute immunity from civil suits that are based on his “official acts,” and that immunity extends to the “outer perimeter” of his duties. What does that actually mean or include? Either the Supreme Court will need to answer this question, or, more likely, they will send it down to the Appeals Court for them to decide. One has to ponder even if the justices determine that Trump was acting officially in his role as president, is trying to overturn a democratic election a presidential action that should enjoy immunity? If so, we may be returning to the era of English nobility, and the glory of royal immunity enjoyed by crazy King George.