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

2. This lecture
Presidential immunity from lawsuits
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3. 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?

4. 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?

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. Next lecture We will finish Chapter 4 Pardon Power Foreign Policy
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After you finish all of Chapter 4, you will work on your first major assignment