Executive immunity Summary

  • Last updated on November 11, 2022

Limited right of a government executive official not to be sued in civil court for certain acts of official misconduct. It differs from executive privilege, which is a limited right to refuse to come before or furnish information, documents, or items to the legislature or judiciary.

The U.S. Constitution expressly provides some immunity for federal legislative but not executive or judicial officials. Article I, section 6 protects speech and debate and related functions of members of Congress and certain aides. It also protects members from some arrests. The implications of Article I, sections 2 and 3, and Article II, section 4, all relating to impeachment, are equivocal concerning any executive or judicial immunities. Nevertheless, depending on the context, the Court found support for modern executive and judicial immunity in the common law of England in Spalding v. Vilas[case]Spalding v. Vilas[Spalding v. Vilas] (1896), in constitutional notions of separation of powers and federalism, including the superiority of federal law, and in implications in particular laws. Within limits, immunity may be changed by law.

Types of Immunity

The majority of state and federal executive officials, in most civil suits arising from their discretionary functions, enjoy immunity, which takes a number of forms. Temporary immunity limits lawsuits while the official is in office. Permanent immunity limits lawsuits even after the official leaves office. Legislators have both types, and executive and judiciary officials have permanent immunity.

Immunity also can be absolute or qualified. Qualified, as currently defined by the Court in such executive immunity cases as Harlow v. Fitzgerald[case]Harlow v. Fitzgerald[Harlow v. Fitzgerald] (1982) and Wilson v. Layne[case]Wilson v. Layne[Wilson v. Layne] (1999), means immunity is not granted if the official knew or reasonably should have known at the time that his or her actions violated a clearly defined right under the law or Constitution. Absolute immunity is complete immunity from civil suit, provided the officer was acting within the perimeters of his or her office, irrespective of the officer’s intention. In Imbler v. Pachtman[case]Imbler v. Pachtman[Imbler v. Pachtman] (1976) and Butz v. Economou[case]Butz v. Economou[Butz v. Economou] (1978), the Court granted absolute immunity from civil suit in a narrow, exceptional class of cases. Specifically, it granted absolute immunity from civil suit to presidents, as long as they acted anywhere within the “outer perimeter” of the scope of their official presidential functions, to judges and prosecutors, for suits based, respectively, on judging, or on initiating, pursuing, or presenting a case but not necessarily on other functions (such as conducting an investigation), and to executive branch officials engaged in functions analogous to those absolutely immunized for judges and prosecutors.

The Court’s approach to executive immunity is also influential in state courts, even when those courts may have freedom to differ. The availability of immunity, and whether the immunity, if granted, is to be qualified or absolute, depends on the particular laws under which the suit is being filed, the activity being challenged, and the level of the executive being sued. The emphasis is on the importance of the function, rather than the loftiness of the person or office. The Court decides how sensitive and vital the particular executive function is, how much encouragement of it is needed as a matter of policy, and the relative importance of the ends served by the law under which the suit is being filed. Despite this flexibility, generalization is possible: Most state and federal executive officials, in most civil suits arising out of their discretionary functions, enjoy qualified immunity although it may not apply on the particular facts.

As a general rule, the Court holds there is no distinction between state and federal executive officers. In Wood v. Strickland[case]Wood v. Strickland[Wood v. Strickland] (1975), it ruled that school administrators had qualified immunity, and granted qualified immunity to the superintendent of a state hospital in O’Connor v. Donaldson[case]O’Connor v. Donaldson[OConnor v. Donaldson] (1975). Most of the Court’s executive immunity decisions concern immunity from federal lawsuits, but a number, like presidential immunity, bind state courts as well.

Presidents

U.S. presidents have absolute permanent immunity covering their official functions, although unofficial functions are not covered by any immunity. Therefore they cannot be sued in civil court for official acts even after leaving the presidency. However, civil suits can be entered against presidents during their presidency or after for unofficial acts (including any acts done preceding their presidencies). Nixon v. Fitzgerald[case]Nixon v. Fitzgerald[Nixon v. Fitzgerald] (1982) absolutely immunized Richard M. Nixon (former president at the time of the suit) against a civil lawsuit by a former government employee who alleged Nixon as president had illegally conspired to terminate the employee’s job. In a companion case decided at the same time, Harlow v. Fitzgerald, the Supreme Court held that the Nixon aide who allegedly conspired with Nixon had only qualified immunity.

Although the act at issue was official, the Nixon decision advanced grounds that were broad enough to support presidential immunity for both official and unofficial acts. Immunity, it was argued, was necessary to avoid chilling the exercise of official discretion and distracting presidents from the duties of office. The latter part of this argument suggested that a sitting president could not be sued even for unofficial acts or those committed before assuming the presidency.

Clinton’s Case

Subsequently, however, the Court, in Clinton v. Jones[case]Clinton v. Jones[Clinton v. Jones] (1997), termed the distraction argument to be both gratuitous (because Nixon did not involve a sitting president) and somewhat preposterous. That left the argument that the lack of immunity chilled official conduct. However, this problem can arise only when the challenged act is an official one. Therefore, the Court ruled, Paula Jones could pursue a civil suit against sitting president Bill Clinton for alleged sexual harassment that predated his presidency. The president had asked for temporary immunity, lasting only until he left office, but the Court refused to grant any immunity at all. The Court, encouraging considerable deference to the president’s schedule, stated that the trial judge had discretion to control timing, appearances, and other court matters to accommodate legitimate obligations of the president.

The Court did not believe that denying immunity would precipitate many potentially illegitimate or significantly distracting civil lawsuits, noting there had been only three apposite suits against presidents in the past, and they were either dismissed or settled. Normal judicial summary dismissal of obviously unfounded lawsuits would take care of problems. In any event, the personal attention of presidents would not necessarily be required, and their schedules could always be accommodated.

Justice Stephen G. Breyer, concurring, expressed several reservations. The Court’s predictions might be wrong, and lawsuits might multiply and become unduly distracting. Breyer believed that, at the very least, accommodating the president’s schedule should be constitutionally mandated. In addition, the president’s word as to specific identified needs of his office should be taken by the trial judge without too much inquiry. Breyer also believed that the issue of immunity should probably be revisited down the road.

Jones does leave open the possibility of a different view of immunity should events later require it, and the Court noted that Congress can always enact a broader definition of immunity. Conceivably some claims should be deferred. The decision to defer is generally based on the degree of immediate need of the particular claimant, the degree of difficulty of preserving the specific proof, the kind of pending national presidential business and particular lawsuit distractions, the importance of the rights pressed by the claimant, the chances of ultimate success, and the claimant’s motivation. Some public tasks are important enough to derail normal legal procedures that would interfere. For example, under current law, claims against members of the armed forces must wait until their active duty is over. Evidentiary privileges recognize that normal legal procedures must be sacrificed to promote the public interest served by the husband-wife, doctor-patient, psychotherapist-patient, or lawyer-client relationship. For now, the Court does not wish to make these very difficult and perhaps inappropriate individualized judgments.

The Court has never determined whether a sitting president can be criminally prosecuted for official acts, unofficial acts, or acts done before taking the office. There may be some constitutional constraints on what punishment could be levied. It is generally assumed that a president may, at least in some of these circumstances, be criminally prosecuted after leaving office. These questions have been posed most recently by allegations that Clinton criminally lied both in a civil court deposition in the Jones case and before a criminal grand jury concerning the same matter, all while he was president.

Executive immunity is distinct from questions of the extent to which, if any, executive officials must respond to subpoenas and similar processes of the legislative and executive branches and of whether a court, having found acts of the executive to be illegal, can enforce its decision by, for example, enjoining the executive from doing the acts. The Court in Jones relied on the permissibility of some of these exertions of power over the executive to refute the president’s separation of powers claim.

Further Reading
  • Cunningham, Thomas M. “Nixon v. Fitzgerald: A Justifiable Separation of Powers Argument for Absolute Presidential Civil Damages Immunity?” Iowa Law Review 68 (March, 1983): 557.
  • Jaffee, Louis L. “Suits Against Governments and Officers: Damage Actions.” Harvard Law Review 77 (1963): 209-239.
  • Kirgis, Paul Frederic. “Section 1500 and the Jurisdictional Pitfalls of Federal Government Litigation.” American University Law Review 47 (December, 1997): 301.
  • Schuck, Peter H. “Suing Our Servants: The Court, Congress, and the Liability of Public Officials for Damages.” Supreme Court Review 1980 (1981): 281-368.
  • Woolhandler, Ann. “Patterns of Official Immunity and Accountability.” Case Western Reserve Law Review 37 (1987): 396.

Butz v. Economou

Clinton v. Jones

Common law, federal

Congress, arrest and immunity of members of

Constitutional law

Executive privilege

Judicial immunity

Judicial review

Nixon, United States v.

Presidential powers

Restrictions on court power

Reversals of Court decisions by Congress

Separation of powers

Speech and debate clause

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