Article II, Section 3:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

In its 1867 decision Mississippi v. Johnson, the Supreme Court established that the President is largely beyond the reach of the judiciary by holding that it could not direct President Andrew Johnson in how he exercised his “purely executive and political” powers.1 The Court stated, it had “no jurisdiction . . . to enjoin the President in the performance of his official duties.” 2

In subsequent decisions, however, the Court made clear that Johnson does not stand for the proposition that the President is immune from judicial process. For example, in United States v. Nixon,3 the Court held that President Richard Nixon was amenable to a subpoena to produce evidence for use in a federal criminal case. There, the President had argued that he was immune to judicial process, claiming “that the independence of the Executive Branch within its own sphere insulates a President from a judicial subpoena in an ongoing criminal prosecution.” 4 The Supreme Court unanimously disagreed, holding that “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” 5 The Court noted that the constitutional duty of courts “to do justice in criminal prosecutions” was counterbalanced by the claim of presidential immunity. To accept the President’s argument, the Court further reasoned, would undermine the separation of powers that was at the core of “a workable government” as well as “gravely impair the role of the courts under Art. III.” 6

Throughout the Watergate investigation, it was unclear whether the President could be subject to criminal prosecution prior to being convicted upon impeachment.7 The Court, however, resolved that courts may require the President to testify or produce documents in criminal proceedings.8 This principle dates to the earliest days of the Republic, when Chief Justice John Marshall presided as the Circuit Justice for Virginia over the treason trial of Aaron Burr. In that case, Chief Justice Marshall concluded that President Thomas Jefferson could be subject to a subpoena to provide a document relevant to the trial.9 Specifically, Chief Justice Marshall declared that, in contrast to common law privileges afforded the King of England, the President was not “exempt from the general provisions of the constitution,” like the Sixth Amendment, which provides the defense compulsory process.10

Nonetheless, Chief Justice Marshall recognized that while the President could be subject to a criminal subpoena, the President could still withhold information from disclosure based on executive privilege.11 In the two centuries since the Burr trial, the Executive Branch’s practices12 and Supreme Court rulings “unequivocally and emphatically endorsed” Chief Justice Marshall’s position that the President was subject to federal criminal process.13 In its 2020 opinion in Trump v. Vance, the Court extended this precedent to state criminal proceedings, concluding that the President was not absolutely immune from state criminal subpoenas.14

Finally, with respect to civil liability, the Court held in Nixon v. Fitzgerald that the President is absolutely immune in actions for civil damages for all acts within the “outer perimeter” of his official duties.15 The Court’s close decision was premised on the President’s “unique position in the constitutional scheme,” that is, the Court conducted a “kind of ‘public policy’ analysis” of the “policies and principles that may be considered implicit in the nature of the President’s office in a system structured to achieve effective government under a constitutionally mandated separation of powers.” 16 Although the Constitution expressly afforded Members of Congress immunity in matters arising from “speech or debate” and was silent on presidential immunity, the Court nonetheless considered immunity to be “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.” 17

While the Court relied, in part, upon its practice of finding immunity for officers, such as judges, for whom the Constitution is silent, but for which a long common-law history exists, and in part upon historical evidence, which it admitted was fragmentary and ambiguous,18 the Court focused on the fact that the President is different from all other executive officials. The President is charged with a long list of “supervisory and policy responsibilities of utmost discretion and sensitivity,” 19 and diversion of his energies by concerns with private lawsuits would “raise unique risks to the effective functioning of government.” 20 Moreover, the presidential privilege is rooted in the separation of powers doctrine, counseling courts to tread carefully before intruding. While some interests are important enough to require judicial action, the Court reasoned that “merely private suit[s] for damages based on a President’s official acts” do not serve this “broad public interest” necessitating the courts to act.21 Finally, qualified immunity would not adequately protect the President, because judicial inquiry into a functional analysis of his actions would bring with it the evil immunity it was to prevent; absolute immunity was required.22

Footnotes

1

71 U.S. (4 Wall.) 475 (1867). The Court declined to express an opinion on “whether, in any case, the President of the United States may be required, by the process of this court, to perform a purely ministerial act under a positive law, or may be held amenable, in any case, otherwise than by impeachment for crime.” Id., at 498. See Franklin v. Massachusetts, 505 U.S. 788, 825–28 (1992) (Scalia, J., concurring). In NTEU v. Nixon, 492 F.2d 587 (D.C. Cir. 1974), the court held that it could issue a writ of mandamus to compel the President to perform a ministerial act, although it said that if any other officer were available to whom the writ could run, it should be applied to him.

2

Johnson, 71 U.S. at 501.

3

United States v. Nixon, 418 U.S. 683 (1974)

4

Id. at 706.

5

Id.

6

Id. at 706–07. The lower courts considered the issue more fully. In re Grand Jury Subpoena to Richard M. Nixon, 360 F. Supp. 1, 6–10 (D.D.C. 1973) (Judge Sirica), aff’d sub nom., Nixon v. Sirica, 487 F.2d 700, 708–712 (D.C. Cir. 1973) (en banc) (refusing to find President immune from process). Assessments of the subpoena of President Jefferson in the Burr trial have conflicted. United States v. Burr, 25 F. Cas. 187 ( No. 14694) (C.C.D.Va. 1807). For the history, see Paul Freund, Foreword: On Presidential Privilege, The Supreme Court, 1973 Term, 88 Harv. L. Rev. 13, 23–30 (1974).

7

The Impeachment Clause provides that a party convicted upon impeachment shall nonetheless be liable for criminal proceedings. U.S. Const. art. I, § 3, cl. 7. Gouveneur Morris in the Convention and Alexander Hamilton in the Federalist Papers asserted that a criminal trial would follow a successful impeachment. See 2 The Records of the Federal Convention of 1787, at 500 (Max Farrand ed., 1937); The Federalist Nos. 65 & 69.

8

See Trump v. Vance, No. 19-635 (July 9, 2020) (recognizing that the “public has a right to every man’s evidence” ).

9

See United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807) (No. 14,692D).

10

See id. (observing that while the King is born to power and can “do no wrong,” the President, by contrast, is “of the people” and subject to the law).

11

See United States v. Burr, 25 F. Cas. 187, 192 (C.C.D. Va. 1807) (No. 14,694).

12

See Vance, No. 19-635, slip op. at 7–9 (discussing historical practices of Presidents James Monroe, Ulysses S. Grant, Gerald Ford, Jimmy Carter, and William Clinton).

13

Clinton v. Jones, 520 U.S. 681, 704 (1997) (citing United States v. Nixon, 418 U.S. 683, 706 (1974)). In rejecting separation of powers challenges to claims that the President is immune from federal criminal process, the Court rejected the argument that criminal subpoenas “rise to the level of constitutionally forbidden impairment of the Executive’s ability to perform its constitutionally mandated functions.” Id. at 702–03.

14

See Vance, No. 19-635, slip op. at 12–15 (rejecting the categorical argument that state criminal subpoenas would unduly distract the President, impose a stigma on the presidency, or result in harassment by state prosecutors). The Vance Court also rejected the argument that a state prosecutor should satisfy a heightened standard of need when seeking a sitting President’s records. Id. at 15–16. More important, in Vance, the state prosecutor sought private presidential records, and executive privilege was not at issue. Id. (Kavanaugh, J., concurring in the judgment). The Court refused to extend the heightened-need standard established in Nixon to private records, reasoning that: (1) Burr and its progeny foreclosed that argument; (2) the heightened-need standard was unnecessary to allow the President to fulfill his Article II functions; and (3) the public interest in fair and effective law enforcement favors “comprehensive access to evidence.” Id. (majority opinion).

15

Nixon v. Fitzgerald, 457 U.S. 731 (1982)

16

Id. at 748.

17

Id. at 749.

18

Id. at 750–52 n.31.

19

Id. at 750.

20

Id. at 751.

21

Id. at 754.

22

Id. at 755–57. Justices Byron White, William Brennan, Thurgood Marshall, and Henry Blackmun dissented. The Court reserved decision on whether Congress could expressly create a damages action against the President and abrogate immunity, id. at 748–49 n.27, thus appearing to disclaim that the Constitution mandated the decision; Chief Justice Warren Burger disagreed with the implication of this footnote, id. at 763–64 n.7 (concurring opinion), and the dissenters noted they agreed with the Chief Justice on this point. Id. at 770 & n.4.