Nixon v Fitzgerald v Trump v Immunity

 Nixon v Fitzgerald was the primary topic of conversation in the Court argument over Trump’s immunity claim. It was also the blueprint for the argument; but a blueprint read sideways and upside down, to build a conclusion with little to no legal foundation at all.

The President's absolute immunity is a functionally mandated incident of his unique office, rooted in the constitutional tradition of the separation of powers and supported by the Nation's history. Because of the singular importance of the President's duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government. While the separation of powers doctrine does not bar every exercise of jurisdiction over the President, a court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch. The exercise of jurisdiction is not warranted in the case of merely private suits for damages based on a President's official acts. 

(c) The President's absolute immunity extends to all acts within the "outer perimeter" of his duties of office. 

 (d) A rule of absolute immunity for the President does not leave the Nation without sufficient protection against his misconduct. There remains the constitutional remedy of impeachment, as well as the deterrent effects of constant scrutiny by the press and vigilant oversight by Congress. 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.

That’s the summary. Doesn’t look good, does it? Pay attention to something the arguments today didn’t (much): The difference between “civil” and “criminal.”

The opening of the relevant part of the majority opinion starts with this:

This Court consistently has recognized that government officials are entitled to some form of immunity from suits for civil damages.

The opinion goes on to identify cases in support of this proposition. So this is an important proposition. It sums up here:

Our decisions concerning the immunity of government officials from civil damages liability have been guided by the Constitution, federal statutes, and history. Additionally, at least in the absence of explicit constitutional or congressional guidance, our immunity decisions have been informed by the common law. See Butz v. Economou, supra, at 438 U. S. 508; Imbler v. Pachtman, supra, at 424 U. S. 421. This Court necessarily also has weighed concerns of public policy, especially as illuminated by our history and the structure of our government.

Here, this will probably disturb you:

Applying the principles of our cases to claims of this kind, we hold that petitioner, as a former President of the United States, is 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. Justice Story's analysis remains persuasive: 

"There are . . . incidental powers belonging to the executive department which are necessarily implied from the nature of the functions which are confided to it. Among these must necessarily be included the power to perform them. . . . The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office, and, for this purpose, his person must be deemed, in civil cases at least, to possess an official inviolability."

Now pay careful attention; some of this doesn’t say what you may think it says:

In defining the scope of an official's absolute privilege, this Court has recognized that the sphere of protected action must be related closely to the immunity's justifying purposes. Frequently our decisions have held that an official's absolute immunity should extend only to acts in performance of particular functions of his office. See Butz v. Economou, 438 U.S. at 438 U. S. 508-517; cf. Imbler v. Pachtman, 424 U.S. at 424 U. S. 430-431. But the Court also has refused to draw functional lines finer than history and reason would support. See, e.g., Spalding v. Vilas, 161 U.S. at 161 U. S. 498 (privilege extends to all matters "committed by law to [an official's] control or supervision"); Barr v. Matteo, 360 U. S. 564, 360 U. S. 575 (1959) (fact "that the action here taken was within the outer perimeter of petitioner's line of duty is enough to render the privilege applicable . . ."); Stump v. Sparkman, 435 U.S. at 435 U. S. 363, and n. 12 (judicial privilege applies even to acts occurring outside "the normal attributes of a judicial proceeding"). In view of the special nature of the President's constitutional office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the "outer perimeter" of his official responsibility.

This is toward what I mean:

The existence of alternative remedies and deterrents establishes that absolute immunity will not place the President "above the law."  For the President, as for judges and prosecutors, absolute immunity merely precludes a particular private remedy for alleged misconduct in order to advance compelling public ends.

"Private remedy” should catch your eye. That’s a key phrase. Let’s go to CJ Burger’s concurring opinion:

The dissents are wide of the mark to the extent that they imply that the Court today recognizes sweeping immunity for a President for all acts. The Court does no such thing. The immunity is limited to civil damages claims. Moreover, a President, like Members of Congress, judges, prosecutors, or congressional aides -- all having absolute immunity -- are not immune for acts outside official duties. [Footnote 2/2] Ante at 457 U. S. 753-755. Even the broad immunity of the Speech and Debate Clause has its limits. [Footnote 2/3].

Burger then cites a case relied on by the dissent, to reject it:

First, it is important to remember that the context of that language is a criminal prosecution. Second, the "judicial process" referred to was, as in United States v. Burr, 25 F. Cas. 30 (No. 14,692d) (CC Va. 1807) (Marshall, C.J., sitting at trial as Circuit Justice), a subpoena to the President to produce relevant evidence in a criminal prosecution. No issue of damages immunity was involved either in Burr or United States v. Nixon. In short, the quoted language has no bearing whatever on a civil action for damages.

John Dean started me on this pursuit. He quoted from Fitzgerald, but attributed the language to Burger’s concurring opinion:

Today’s SCOTUS argument on Trump’s criminal immunity revealed an activist conservative majority that wants to provide presidential immunity. To do so, they must get around Nixon v Fitzgerald (1982), which clearly states there is no criminal immunity for presidents. For example,…

— John W. Dean (@JohnWDean) April 25, 2024

But it’s actually from Justice White’s dissent, which curiously seems to be the guiding force of the arguments before the Court in Trump’s case. This, first, is the full quote from the dissent:

Taken at face value, the Court's position that, as a matter of constitutional law, the President is absolutely immune should mean that he is immune not only from damages actions but also from suits for injunctive relief, criminal prosecutions and, indeed, from any kind of judicial process. But there is no contention that the President is immune from criminal prosecution in the courts under the criminal laws enacted by Congress, or by the States, for that matter. Nor would such a claim be credible. The Constitution itself provides that impeachment shall not bar "Indictment, Trial, Judgment and Punishment, according to Law." Art. I, § 3, cl. 7. Similarly, our cases indicate that immunity from damages actions carries no protection from criminal prosecution. Supra at 457 U. S. 765-766.

The reference is to this language in the majority opinion:

Constitutional immunity does not extend to those many things that Senators and Representatives regularly and necessarily do that are not legislative acts. Members of Congress, for example, repeatedly importune the executive branch and administrative agencies outside hearing rooms and legislative halls, but they are not immune if, in connection with such activity, they deliberately violate the law. United States v. Brewster, 408 U. S. 501 (1972), for example, makes this clear. Neither is a Member of Congress or his aide immune from damages suits if, in order to secure information deemed relevant to a legislative investigation, he breaks into a house and carries away records. Gravel v. United States, 408 U. S. 606 (1972). Judges are absolutely immune from liability for damages, but only when performing a judicial function, and even then they are subject to criminal liability. See Dennis v. Sparks, 449 U. S. 24, 449 U. S. 31 (1980); O'Shea v. Littleton, 414 U. S. 488, 414 U. S. 503 (1974). The absolute immunity of prosecutors is likewise limited to the prosecutorial function. A prosecutor who directs that an investigation be carried out in a way that is patently illegal is not immune.

Much of the argument before the Court was clearly drawn from the dissent in Fitzgerald. There’s a lengthy analysis there of the Constitutional history of the Presidency, including references made in the argument to comments from the Constitutional Convention. Inaptly referenced and incorrectly applied, often used to support conclusions drawn in opposition to the majority and dissenting opinions of Fitzgerald. But that’s the primary problem with the argument: Fitzgerald was about immunity from a civil lawsuit. It explicitly rejected governmental immunity (for any government official) for criminal liability.  The argument in the Court obscured this central point: that civil immunity has nothing to do with criminal immunity. Even the majority in Fitzgerald recognized this. If the court grants Trump even colorable immunity, which would have to be established through some manner of test, it would be inventing that immunity out of whole cloth. There is simply no support for it in the case law reviewed by, and relied on, in arguments before the Court.

(The greatest irony is that much of the argument in Fitzgerald, in all three opinions, was echoed in the Trump arguments, by Trump and many of the justices. But the reasoning in Fitzgerald should have ended the argument after an hour. Rather like Dobbs, the Court seems once again bent on creating its own legal history and law.)