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March 11



The Constitution provides no exemption for the presidency from the legal processes of other branches. Congress alone is blessed with such a protection, but that shield, the Speech or Debate Clause, is strictly limited to legislative functions. It has been assumed, however, that the president enjoys some shield from both judicial and congressional control. If presidents were obligated to justify legally each contestable action of the executive branch, they would be subject to intolerable control and inspection by a supposedly coordinate branch and would be burdened by countless impediments to effective action. Even if criminal charges are brought against a president, there are several conceptual problems: What if the president should grant himself a pardon or give herself immunity from local prosecution? These possibilities have led some authorities to argue that impeachment must always precede criminal judicial proceedings against a president. Presidents have generally claimed absolute immunity, meaning that, except for impeachment proceedings, they can personally ignore all other processes of law. Most of the early executive immunity cases involved the role of presidents as witnesses or potential witnesses and such a role is not usually vital to the process of another branch. Thus, in Marbury v. Madison (1803), neither President Thomas Jefferson nor Secretary of State James Madison (the nominal defendant) appeared in Court even through an attorney. In Aaron Burr's 1806 trial for treason, Jefferson was permitted by Chief Justice John Marshall, riding circuit, to reply to all questions in written form. The highwater mark of presidential immunity was Mississippi v. Johnson (1867), in which the Supreme Court refused to hear an argument for an injunction against presidential enforcement of a statute. The decision's strong language against judicial direction of presidential power as an absurd and excessive extravagance has generally been assumed to deny judicial authority of this type, although the opinion expressly reserves the question of whether a president may be forced to perform the rather small number of ministerial duties of that office (p. 499). In any event, the language of Mississippi v. Johnson is construed by critics of presidential authority like Raoul Berger as merely arguing the prudence of judicial abnegation and not as setting constitutional limits. Throughout U.S. history presidents have worked out accommodations with both Congress and the courts. As a result, both strong advocates of immunity and of the competing principle that no one is above the law can claim ample precedent, depending on how they interpret precisely the same events. Presidents Abraham Lincoln and Theodore Roosevelt voluntarily appeared before congressional committees and President Ulysses S. Grant voluntarily submitted a deposition in a congressional investigation (see Congressional Power of Investigation). In response to a committee summons, expresident John Tyler testified and former president John Quincy Adams sent a deposition. However, former president Harry S. Truman chose to ignore a subpoena from the House UnAmerican Activities Committee. Both incumbent and former cabinet members and other high officials have cooperated freely with congressional committees, and committees have generally accommodated their schedules. Courts proceed routinely against high presidential appointees, although they are accorded qualified immunity in civil matters, as in Butz v. Economou (1978).

Courts have been quite circumspect with both expresidents and sitting chief executives. Supreme Court opinions have emphatically asserted the rule of lawand the Court's prerogative to say what the law isbut, as noted in Marbury, the Burr case, and Mississippi v. Johnson, judges in fact usually accept very nominal compliance, and constitutional authorities have generally interpreted Court accommodations as claiming little or no authority over the president in an official capacity. The issue in United States v. Nixon (1974) was quite different. President Richard Nixon was suspected of knowledge of an illegal breakin at Democratic party headquarters and of being involved in a coverup to protect the perpetrators. (He was, in fact, an unindicted coconspirator, not publicly identified nor proceeded against because of legal doubts about indicting a sitting president.) Nixon had in his possession tapes of conversations likely to be able to resolve the issue, and the prosecutor was able to identify the conversations for which tapes were sought with great particularity. Under such circumstances, presidential immunity is at a minimum. Because criminal proceedings were never instituted against Nixon, the issue of presidential answerability on criminal charges remained poorly defined, in contrast to the considerable clarification of the nature and limits of executive privilege that were this case's result. The controlling statement of presidential immunity is found in Nixon v. Fitzgerald (1982), a case decided by a narrow 5to4 vote with two concurrences by Chief Justice Warren Burger. The majority held that a president could not be personally sued for dismissing a federal employee, even though it was alleged that the dismissal was retaliation for the employee's whistleblowing cooperation with a congressional committee. The singular importance of the president's duties requires freedom from private lawsuits for decisions taken within the outer perimeter of the office (p. 755). Basing its argument ambiguously on both constitutional and functional grounds, Justice Lewis Powell's plurality opinion reserved the question whether Congress could define and delimit executive immunity. Burger's concurrence argued that there is a sweeping constitutional underpinning for absolute immunity. The four dissenters argued that the decision removed the president from the rule of law, a view denied by both Powell and Burger, who pointed out that the possibility of other kinds of criminal and civil proceedings remained open. The dissenters also argued that the Court was inconsistent in view of its support of the qualified immunity test of Butz v. Economou for other executive branch employees. This test was followed in the companion case of Harlow v. Fitzgerald (1982), which was decided by a vote of 8 to 1. If adequate protection could be given such officials by granting selective immunity in most instances and absolute immunity only in highly specific functional circumstances, why could not such an approach be used for the president? Obviously, the majority believed, as Burger asserted in his dissent in Harlow, that an approach that would treat the president, cabinet members, and presidential subordinates on the same plane constitutionally would be egregiously wrong (p. 828). Indeed, Burger argued that presidential aidesas direct instruments of the presidentare entitled to more constitutional protection than Cabinet members, on analogy with congressional aides.

In 1997, during the height of controversy surrounding President Bill Clinton's alleged sexual misconduct, the Supreme Court unanimously rejected any right of a sitting president to quash or to postpone civil suits unconnected with the exercise of presidential authority during tenure as chief executive. In Jones v. Clinton(520 U.S. 681 [1997]), an Arkansas state employee brought a suit seeking damages, claiming that then Governor Clinton had made crude and unwanted sexual advances toward her and that she had been punished for rejecting them. The majority opinion by Justice John Paul Stevens noted that only three previous sitting presidents had faced civil suits, indicating no great likelihood of excessive burden on future executives. The courts could thus be trusted to accommodate presidential schedules and needs. Justice Stephen Breyer's concurrence suggested that time and similar accommodations should be given constitutional status and not be at the whim of the myriad judges in the United States. He agreed, however, that the president has no inherent immunity and this case suggested no special reason for immunity. In the subsequent proceedings, ironically, the judge was quite accommodating, but the president's misleading deposition on tape unleashed perjury charges, played into the hands of the Special Prosecutor Ken Starr, and helped engender Clinton's impeachment proceedings. Many, if not most, commentators believe that the Jones decision was politically naive and likely to foster future politically motivated litigation. Despite some sweeping language in the Jones opinion, it remains open whether criminal procedures could be instituted against a sitting president. Certainly, criminal charges would distract, to a great degree, a president from discharging his or her duties. Although Aaron Burr and Spiro Agnew were indicted while sitting vice presidents (Burr for killing Alexander Hamilton and Agnew for taking bribes while serving as the governor of Maryland), the vice presidency, in practical terms, is not a crucial office. Nor does the vice president embody a branch of government as the executive inherently does.