Presidential Immunity

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The Constitution has no provision regarding presidential immunity akin to the speech or debate clause that protects members of Congress in performing their official duties. Nevertheless, most Presidents have claimed the constitutional structure implicitly protects their ability to execute their constitutional obligations.

The Supreme Court first recognized presidential immunity formally in united states v. nixon (1973). The Court concluded the privilege was not absolute but presumptive and ordered President richard m. nixon to comply with a subpoena requesting some tapes of his conversations with his aides. The Court determined that Nixon's "generalized" need for "confidential communications" with staff was outweighed by the need for the materials sought in a pending criminal prosecution against members of his staff.

In nixon v. fitzgerald (1982), the Court held 5–4 the President—but not his staff—was absolutely immune from civil actions based on his official actions. The Court explained the "President occupies a unique position in the constitutional scheme. [Because] of the singular importance of the President's duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government."

In clinton v. jones (1997), a unanimous Court acknowledged the President's "unique" constitutional status but held he was not immune from civil actions based on his unofficial conduct. The Court left unaddressed whether a President may be criminally prosecuted or imprisoned before impeachment and removal from office, though it suggested for official actions a President "may be disciplined principally by impeachment, not by private lawsuits for damages." Although Justice joseph story maintained a President was immune from criminal prosecution and imprisonment while discharging his duties, it is arguable that Clinton v. Jones sanctions any lawsuits, even criminal ones, based on a President's unofficial conduct. Moreover, no other federal officials, not even Vice Presidents, are immune while in office from criminal prosecution or imprisonment.

Michael J. Gerhardt

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Presidential Immunity

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Presidential Immunity