The Evolution of Presidential Immunity in the United States: From Nixon to Trump
- Marcus Pollard, Esq.
- Sep 4, 2024
- 3 min read
Key Points:
Until recently, presidential immunity has shielded presidents from personal civil suits for official actions that have taken place while in office.
The Supreme Court has recently expanded presidential immunity to include sitting and former presidents for official presidential actions.
Some lawmakers interpret this recent ruling as the executive branch is beyond judicial or legislative reach.
Congressional lawmakers have introduced a bill that would reduce Presidential Immunity, but the future of this bill and Presidential Immunity lies heavily in the outcome of the 2024 election.
This election season, reproductive freedoms aren't the only landmark issue on the ballot. There is also the issue of Presidential power and king-making. The current conservative United States Supreme Court has made many groundbreaking decisions, and another came in July when the Court decided to expand Presidential immunity to criminal prosecution.
Presidential immunity in the United States is not a new or naval concept with roots in the constitutional principle of separation of powers. Although the Constitution doesn't explicitly grant the President immunity, it has been shaped by several landmark decisions by the United States Supreme Court. In Nixon v. Fitzgerald, 457 U.S. 731, The Supreme Court held that the President is entitled to absolute immunity from civil damage liability for acts within the outer perimeter of his official responsibilities. The Court noted in Nixon that there are enough safeguards like increased press scrutiny, congressional oversight, and reelection risk to deter a President from abusing his power.[1] The Court also noted that the President should be able to conduct the business of the presidency without the risk of a personal civil lawsuit.[2] The scope of Presidential immunity from a civil lawsuit was narrowed in Clinton v. Jones, 520 U.S. 681, where the Court held that presidential immunity does not extend to actions taken before the President assumed office or to unofficial conduct. The Court's decision means that a sitting President could be sued in a civil suit as long as the complaints about actions occurred before the President took office.
In recent years, Former President Donald Trump has unsuccessfully challenged the scope of presidential immunity in several cases. For example, in different cases, the Court has ruled that former President Trump is not immune from state-issued criminal subpoenas, that former President Trump didn't have blanket immunity for criminal acts within the outer perimeter of his office, and that former President Trump was not immune from judicial review.[3] However, in President Trump's most recent push to claim Presidential Immunity for his actions to interfere with the 2020 election, the Court agreed with him and expanded presidential immunity to criminal cases for the first time since the doctrine began in the early 1980s. In a 6-3 split decision, the United States Supreme Court expanded Presidential Immunity to protect present and former Presidents from criminal prosecution for acts done in the President's official capacity. Since this ruling, judges overseeing former President Trump's cases have paused hearing and sentencing to determine what actions would amount to an official action covered by presidential immunity.
This landmark opinion has been interpreted by many lawmakers as a disruption in the balance of power in the three branches of government, essentially putting the executive branch of government out of the reach of the judicial and legislative branches. Many congressional lawmakers have seen this expansion of presidential powers as king-making, where the President of the United States is above the law. The feeling that this latest Supreme Court ruling has overstepped the framers of the Constitution's vision of not having a king, some congressional lawmakers have introduced legislation limiting the President's power. On July 27, 2024, House Democrats introduced the Protecting Our Democracy Act (PODA) for the third time. PODA has had a bipartisan push in the past but has met resistance from the Republican party. This Act aims to 1) strengthen congressional oversight over the executive branch, 2) prevent the President from granting presidential pardons to his or herself or members of the President's family, and 3) explicitly prohibit campaigns from using foreign assistance in political elections.[4] However, the future of PODA and the expansion of Presidential powers will most likely hinge on the 2024 election and who controls the House and the Senate in November.
[1] Nixon v. Fitzgerald, 457 U.S. 731, 102 S. Ct. 2690 (1982).
[2] Id.
[3] Trump v. Vance, 480 F. Supp. 3d 460; United States v. Trump, 91 F.4th 1173
[4] Adam Schiff, Rep. Schiff Introduces Landmark Bill to Strengthen and protect Democracy (2023) available at https://schiff.house.gov/news/press-releases/rep-schiff-introduces-landmark-bill-to-strengthen-and-protect-our-democracy; Devon Hesano, House Democrats Reintroduce Bill Aimed at Preventing Abuse of Presidential Power (2023) available at https://www.democracydocket.com/news-alerts/house-democrats-reintroduce-bill-aimed-at-preventing-abuses-of-presidential-power/.