Part 5: Presidential Immunity from Lawsuits Lecture 13 The Executive Part 5: Presidential Immunity from Lawsuits

This lecture Presidential immunity from lawsuits Pages 243-257

When can a President by sued? May a private party sue the President for actions he took in office? What about acts outside the scope of the Presidency? What about suing to force the President to do something?

Mississippi v. Johnson (1867) Background Has to do with the Reconstruction Acts of 1867 They imposed military rule over the South Johnson believed it to be unconstitutional, but enforced it anyway Mississippi wanted the government stopped from enforcing it Question: Can the Court issue an injunction against the President?

Mississippi v. Johnson- II Arguments For Mississippi Who the parties are make no distinction- federal courts have judicial power over all laws arising under the Constitution Marbury said that legal process could be had on the Secretary of State, so why not the President as well Even if the President was exercising a municipal duty, he is not above the law For President Johnson The Court should interfere- the President is the best judge of his duties The President cannot be treated as any other person Other officials can be appointed, replaced, and reappointed Only if impeached can the President be brought before the Courts

Mississippi v. Johnson- III Chief Justice Chase rules for a unanimous Court The duties are executive and political, not ministerial Even if the Court issues an injunction, it has no way to enforce it The Court has no jurisdiction to enjoin the President To do so would be “as absurd and excessive extravagance” Should Mississippi have been counted as a state yet? Georgia v. Randolph (1868) The Secretary of War could be sued It was dismissed as a political question

Nixon v. Fitzgerald (1982) Nixon v. Fitzgerald (1982) Background Fitzgerald had testified about cost overruns to a Senate committee He was a civilian employee for the Air Force He lost his job in 1970 due to staff reductions He thought he was fired in retaliation for his testimony Nixon was asked about it- he said he approved of the firing His aide said he was good at his job, but not loyal- he got no new job Nixon called him a “no good son of a bitch” in the Watergate tapes He sued, including suing Nixon The government said Nixon had absolute immunity

Nixon v. Fitzgerald- II Question: Is the President immune from a civil lawsuit? Arguments For Nixon The framers intended to give the President absolute immunity from civil damages There could be lots of politically motivated lawsuits against the President Separation of powers justifies the absolute immunity For Fitzgerald Immunity is dependent on the functions of office, not the title Checks and balances weigh against absolute immunity He should have to prove he was acting in the scope of his authority to qualify

Nixon v. Fitzgerald- III Powell writes for a 5-4 majority No legislation created a cause of action against the President A president (or former) is entitled to absolute immunity from all causes of action emanating from official acts Outer-perimeter of his official duties The President has a unique status Lawsuits would distract the President from the affairs of state Separation of powers and history weigh in favor Nixon here too There are still other checks on the President

Nixon v. Fitzgerald- IV White dissents Joined by Brennan, Marshall and Blackmun Blackmun also had a dissent joined by Brennan and Marshall White says absolute immunity applies to specific functions not specific offices The fact that Congress has not created causes of action against the President are meaningless This could leave Fitzgerald without a remedy

Clinton v. Jones (1997) Clinton v. Jones (1997) Background Bill Clinton had served as Arkansas Governor before he was elected President Paula Jones was a former Arkansas state employee She alleges a state trooper led her to a hotel room where Clinton was She alleges he made unwanted sexual advances that she rejected As a results, she alleges retaliation by supervisors She sues in federal court She had been funded by well known conservative groups

Clinton v. Jones- II Question: Is a serving President, while in office, absolutely immune from civil lawsuits arising from when he was not President? Arguments For President Clinton President’s role is unique Civil lawsuits would be distracting and disruptive It would invite future lawsuits The Court should defer the case to when Clinton leaves office For Paula Jones Nixon v. Fitzgerald applies only to official acts while President Separation of powers does not come into play here Deferral of the case is not an option

Clinton v. Jones- III Justice Stevens rules for a unanimous Court Immunities are granted by the function of the duties, not the identify of the actor The office of the President is not above the law Only three Presidents had been subject to litigation for acts before they entered office, so it is not likely to happen that much A deferral is not correct either There could be prejudice to the plaintiff The District Court would be able to accommodate the President’s schedule Congress can amend the law to defer cases Breyer said immunity would only apply if the President could show it would interfere with his official duties

Clinton v. Jones- III Aftermath This led to the President’s impeachment Jones’ attorneys asked about sexual relations with White House intern Monica Lewinsky Clinton denied it Information got to Ken Starr Clinton eventually settles the suit with no admission of guilt

Next lecture We will finish Chapter 4 Pardon Power Foreign Policy Pages 256-268 After you finish all of Chapter 4, you will work on your first major assignment