39. Nixon v. Fitzgerald and the President's "Absolute Immunity"

Former President Trump's supporters argue that a 1982 Supreme Court ruling says that he can't be prosecuted for acts taken while in office. Here's why they're wrong.

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday morning, I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope that you’ll consider sharing it with your networks (and subscribing if you don’t already):

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On the Docket

As last week’s newsletter predicted, the justices were busy (by summer standards, anyway) handling a flurry of emergency applications.

On Tuesday, the Court denied three different applications from Missouri death-row prisoner Johnny Johnson trying to block his execution—one of which provoked a heated, 10-page dissent from Justice Sotomayor, joined by Justices Kagan and Jackson, about Johnson’s claim that he was no longer mentally competent to be executed. The Johnson dissent brings to eight the total number of orders so far this Term from which all three Democratic appointees have dissented (seven on their own; one with Justice Gorsuch joining them). That number is relevant because it now exceeds the seven merits decisions from which all three dissented (two of which came with a fourth dissenter).

On Wednesday, Justice Gorsuch extended his own administrative stay of the Tenth Circuit’s ruling in a dispute over whether Tulsa can enforce its regulatory mandates against members of Native American tribes. Shortly before that extended deadline expired on Friday, the Court denied Tulsa’s application, albeit with a separate statement by Justice Kavanaugh (joined by Justice Alito) suggesting that, because of the interlocutory nature of the Tenth Circuit’s ruling, Tulsa remains free to continue enforcing its traffic laws and other mandates against tribal members even while the litigation continues (that is, that Tulsa doesn’t need the emergency relief it’s seeking).

Just a little while after the Tulsa ruling on Friday afternoon, Justice Alito extended his administrative stay of Judge Reed O’Connor’s nationwide injunction against the Biden administration’s limits on “ghost guns,” keeping that ruling on hold now through 5 p.m. (ET) tomorrow (August 8). So it’s possible we’ll get a ruling on that application from the Biden administration before then. Or that Justice Alito will extend his administrative stay further. The only thing that seems reasonably clear is that at least someone is writing an opinion respecting whatever the full Court has decided to do.

One of the points that comes through these developments is the awkwardness of Justices Gorsuch and Alito both having to extend their own administrative stays when the Court wasn’t ready to rule by their original deadline. Only those two justices regularly sunset their administrative stays (here are examples from this term of indefinite administrative stays entered by Chief Justice Roberts, Justice Thomas, and Justice Kagan). And last week may suggest that the latter approach is wiser. Otherwise, setting a deadline that the Court ends up not meeting seems to serve no purpose other than putting undue pressure on the other justices to act by an arbitrary moment, especially in cases in which there’s no date certain by which the Court must rule. (Recall, in the mifepristone case, how Justice Alito had to extend his own administrative stay pending his own dissent. At least now, unlike in that case, his deadline is 5 p.m. ET, rather than 11:59 p.m. ET.)

With the exception of this fantastic article by UVa Professor Rachel Bayefsky, there isn’t a lot of attention paid to the subset of “administrative” stays. But perhaps the justices would be well-served to think about them more holistically (and consistently). Either way, we should hear from the Court this week on the “ghost guns” issue, and also with respect to at least two other pending emergency applications: The Biden administration’s request to prevent the Second Circuit’s approval of the Sackler/Purdue Pharma bankruptcy plan from going into effect; and Epic Games’s request to put the Ninth Circuit’s ruling in its antitrust dispute with Apple into immediate effect.

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The One First Long Read: Presidential Absolute Immunity

Back in April, this newsletter looked in depth at United States v. Nixon—the 1974 decision in which an 8-0 Court unanimously upheld a criminal subpoena issued to a sitting President, rejecting the argument that the President enjoys some kind of “absolute” privilege or immunity that shields him from having to comply with such criminal process.

In reaction to the latest indictment against former President Trump (for his role in conspiring to prevent the peaceful transition of power after his defeat in the 2020 presidential election), Trump’s supporters—and at least one of his lawyers—have gravitated toward a different Supreme Court decision involving President Nixon. Pointing to the Court’s 1982 ruling in Nixon v. Fitzgerald, the argument is that presidents are absolutely immune from any legal liability for injuries arising out of conduct while they were in office. Thus, the argument goes, President Trump can’t be prosecuted here because his alleged misdeeds all took place while he was still serving as President of the United States.

On closer inspection, though, Nixon v. Fitzgerald says no such thing. To the contrary, Justice Powell’s majority opinion went out of its way to stress not only that it was limited to whether a President could be held liable for civil damages; even the “absolute immunity” it embraced has a narrower ambit than is commonly understood. The absolute immunity recognized in Fitzgerald extends only to suits for damages arising out of acts undertaken by the President within the “outer perimeter” of his official duties. By that yardstick, the argument that Fitzgerald bars the latest indictment against Trump is doubly unpersuasive.

Let’s start with Fitzgerald. At issue in the case was whether a discharged former Air Force employee could pursue a civil damages suit against former President Richard Nixon based upon a claim that he was fired at President Nixon’s specific behest in direct retaliation for his whistleblowing testimony before a congressional committee. (Fitzgerald also sued a number of other executive branch officials—culminating in the Court’s distinct decision, handed down the same day, in Harlow v. Fitzgerald, which established the currently prevailing standard for qualified immunity.)

Writing for a 5-4 majority, Justice Powell held that the Constitution immunized Nixon from Fitzgerald’s suit—because the suit arose out of conduct (termination of an executive branch employee) that fell within the “outer perimeter” of the President’s official responsibilities. As Ben Wittes and I wrote in a Lawfare post six years ago, Powell’s analysis is a bit … imprecise. But at least two points seem unmistakably clear: First, the “absolute immunity” he recognized was limited to civil suits seeking damages (other civil suits aren’t necessarily covered, let alone criminal prosecutions); and second, even then, one of the central defenses the justices in the majority offered for that rule was the existence of other mechanisms to ensure presidential accountability.

Taking civil suits first, there are at least four different places in his opinion in which Powell stresses its limited compass. Indeed, the rule the Fitzgerald majority didn’t even apply to all civil suits; presidents could still be sued for wrongful conduct falling outside the “outer perimeter” of their official duties. That was one of the grounds on which at least the lower courts thought Paula Jones’s suit against President Clinton, brought while he was in office, could be allowed to go forward. (The Supreme Court ultimately focused more on the fact that the underlying claims arose before Clinton assumed the presidency, but that helped reinforce how it fell outside the “outer perimeter” of his presidential duties.)

It’s hard to imagine how a rule of “absolute immunity” that doesn’t run even to all damages claims or all civil suits could somehow nevertheless go further—and bar criminal prosecutions for the President’s official acts, as well. Here’s Justice Stevens for the Court in Clinton v. Jones: “[W]e have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity.” Thus “[Clinton’s] effort to construct an immunity from suit for unofficial acts grounded purely in the identity of his office is unsupported by precedent.”

As for the broader accountability point, consider this passage toward the end of Justice Powell’s analysis in Fitzgerald:

When judicial action is needed to serve broad public interests—as when the Court acts, not in derogation of the separation of powers, but to maintain their proper balance, or to vindicate the public interest in an ongoing criminal prosecution—the exercise of jurisdiction has been held warranted. In the case of this merely private suit for damages based on a President’s official acts, we hold it is not.

Thus, a central part of Powell’s analysis was that, in the grand scheme of things, a “private suit for damages” is not necessary to preserve the separation of powers in the same way that other judicial interventions (such as the subpoena in United States v. Nixon) had been and could be. Obviously, criminal prosecutions of a former president (in a context in which, at least according to many of his supporters, he can no longer be impeached—so it’s prosecution or bust) is a very different case—and one in which judicial intervention is likewise arguably far more essential.

Nothing in Fitzgerald, in other words, suggests that the President enjoys a comparable “absolute immunity” from criminal prosecution for conduct falling within the “outer perimeter” of his official duties, let alone for any and all acts taken while in office. (Indeed, even on the most pro-Trump reading of Fitzgerald, it’s not remotely obvious how the conduct of which he’s accused satisfies the “outer perimeter” test; subverting a democratic transition is not exactly part of the President’s official duties.)

To be sure, the Department of Justice’s Office of Legal Counsel has concluded that a sitting President cannot be criminally prosecuted. But whatever its wisdom, that analysis (1) does not depend upon the kind of “absolute immunity” recognized in Fitzgerald (it’s focused, instead, on the extent to which such a prosecution would effectively incapacitate the presidency); and (2) quite obviously does not apply to a former President, either in its conclusion or in its analysis. There’s hardly an incapacitation-of-office problem when the defendant is not currently in office.

It is technically correct, of course, that the Supreme Court has never conclusively resolved whether a former President can be prosecuted for conduct undertaken while in office. But the fact that the Supreme Court has never conclusively resolved a question that the text of the Constitution raises hardly proves that the question is a close one; after all, the Court has also never resolved whether the Vice President can preside over her own impeachment trial in the Senate. (Of course she can’t, the Constitution’s silence on such a bar notwithstanding.)

All of this is a long way of saying that Fitzgerald just doesn’t support the argument that a former President is immune from criminal prosecution for acts undertaken while in office; and it supports that argument even less insofar as (1) the underlying conduct was unrelated to the President’s official duties; and (2) the former President could not be impeached for it. Former President Trump may have other defenses to the charges leveled in this latest indictment; Nixon v. Fitzgerald just ain’t one of them.

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SCOTUS Trivia: Aaron Burr’s Treason Trial

The closest historical example to the prosecution of a former President (besides President Grant’s speeding ticket) may well be the 1807 prosecution of former Vice President Aaron Burr. Burr was indicted for treason and other serious offenses arising out of his quixotic plot, after being dumped from President Jefferson’s ticket in 1804, to stage some kind of uprising against Spanish and/or American authorities in what was then the southwest—allegedly with an eye toward establishing a new country he would lead.

There is a whole lot more to the story, but the trivia piece of it is that Burr’s acquittal came largely thanks to pre-trial procedural rulings from one of the two judges presiding over the Circuit Court for the District of Virginia: Chief Justice John Marshall. Not only did Marshall use Burr’s indictment as an opportunity to adopt a narrow interpretation of the Constitution’s Treason Clause (at the expense of his nemesis, President Jefferson), but he wrote for the full Supreme Court in Ex parte Bollman—a case arising out of the indictment of two of Burr’s alleged co-conspirators—to sustain the Court’s power to issue “original” writs of habeas corpus so long as they were used to review the rulings of some lower court (thereby reflecting an exercise of the Court’s “appellate” constitutional jurisdiction). Once again, Marshall found a way to preserve the power of the federal courts in general even while limiting their power to act in specific cases.

And even though at least some of Burr’s alleged plotting took place while he was still Vice President, there was no serious suggestion ever made by Burr or his lawyers that the Constitution immunized him from prosecution for those parts of his … activities.

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