The President’s Subordinates

PRESIDENTIAL IMMUNITY FROM JUDICIAL DIRECTION

By the decision of the Court in Mississippi v. Johnson,724 in 1867, the President was placed beyond the reach of judicial direction, either affirmative or restraining, in the exercise of his powers, whether constitutional or statutory, political or otherwise, save perhaps for what must be a small class of powers that are purely ministerial.725 An application for an injunction to forbid President Johnson to enforce the Reconstruction Acts, on the ground of their unconstitutionality, was answered by Attorney General Stanberg, who argued, inter alia, the absolute immunity of the President from judicial process.726 The Court refused to permit the filing, using language construable as meaning that the President was not reachable by judicial process but which more fully paraded the horrible consequences were the Court to act. First noting the limited meaning of the term “ministerial,” the Court observed that “[v]ery different is the duty of the President in the exercise of the power to see that the laws are faithfully executed, and among these laws the acts named in the bill.... The duty thus imposed on the President is in no just sense ministerial. It is purely executive and political.”

724 71 U.S. (4 Wall.) 475 (1867).

725 The Court declined to express an opinion “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.” 71 U.S. at 498. See Franklin v. Massachusetts, 505 U.S. 788, 825-28 (1992) (Justice Scalia concurring). In NTEU v. Nixon, 492 F.2d 587 (D.C. Cir. 1974), the court held that a writ of mandamus could issue 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.

726 Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 484-85 (1867) (argument of counsel).

“An attempt on the part of the judicial department of the government to enforce the performance of such duties by the President might be justly characterized, in the language of Chief Justice Marshall, as ‘an absurd and excessive extravagance.”’

“It is true that in the instance before us the interposition of the court is not sought to enforce action by the Executive under constitutional legislation, but to restrain such action under legislation alleged to be unconstitutional. But we are unable to perceive that this circumstance takes the case out of the general principles which forbid judicial interference with the exercise of Executive discretion.”

.... .

“The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance.”

“The impropriety of such interference will be clearly seen upon consideration of its possible consequences.”

“Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal? And in that case could this court interfere, in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court?”727

727 71 U.S. at 499, 500-01. One must be aware that the case was decided in the context of congressional predominance following the Civil War. The Court’s restraint was pronounced when it denied an effort to file a bill of injunction to enjoin enforcement of the same acts directed to cabinet officers. Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1867). Before and since, however, the device to obtain review of the President’s actions has been to bring suit against the subordinate officer charged with carrying out the President’s wishes. Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524 (1838); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Congress has not provided process against the President. In Franklin v. Massachusetts, 505 U.S. 788 (1992), resolving a long-running dispute, the Court held that the President is not subject to the Administrative Procedure Act and his actions, therefore, are not reviewable in suits under the Act. Inasmuch as some agency action, the acts of the Secretary of Commerce in this case, is preliminary to presidential action, the agency action is not “final” for purposes of APA review. Constitutional claims would still be brought, however. See also, following Franklin, Dalton v. Specter, 511 U.S. 462 (1994).

Rare has been the opportunity for the Court to elucidate its opinion in Mississippi v. Johnson, and, in the Watergate tapes case,728 it held the President amenable to subpoena to produce evidence for use in a criminal case without dealing, except obliquely, with its prior opinion. The President’s counsel had argued the President 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, and thereby protects confidential Presidential communications.”729 However, the Court held, “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.”730 The primary constitutional duty of the courts “to do justice in criminal prosecutions” was a critical counterbalance to the claim of presidential immunity, and to accept the President’s argument would disturb the separation-of-powers function of achieving “a workable government” as well as “gravely impair the role of the courts under Art. III.”731

Present throughout the Watergate crisis, and unresolved by it, was the question of the amenability of the President to criminal prosecution prior to conviction upon impeachment.732 It was argued that the impeachment clause necessarily required indictment and trial in a criminal proceeding to follow a successful impeachment and that a President in any event was uniquely immune from indictment, and these arguments were advanced as one ground to deny enforcement of the subpoenas running to the President.733 Assertion of the same argument by Vice President Agnew was controverted by the Government, through the Solicitor General, but, as to the President, it was argued that for a number of constitutional and practical reasons he was not subject to ordinary criminal process.734

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

729 418 U.S. at 706.

730 Id.

731 418 U.S. at 706-07. The issue was considered more fully by the lower courts. 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). Present throughout was the conflicting assessment of the result of the subpoena of President Jefferson in the Burr trial. United States v. Burr, 25 Fed. Cas. 187 (No. 14,694) (C.C.D.Va. 1807). For the history, see Freund, Foreword: On Presidential Privilege, The Supreme Court, 1973 Term, 88 HARV. L. REV. 13, 23-30 (1974).

732 The impeachment clause, Article I, § 3, cl. 7, provides that the party convicted upon impeachment shall nonetheless be liable to criminal proceedings. Morris in the Convention, 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 500 (rev. ed. 1937), and Hamilton in THE FEDERALIST, Nos. 65, 69 (J. Cooke ed. 1961), 442, 463, asserted that criminal trial would follow a successful impeachment.

733 Brief for the Respondent, United States v. Nixon, 418 U.S. 683 (1974), 95-122; Nixon v. Sirica, 487 F.2d 700, 756-58 (D.C. Cir. 1973) (en banc) (Judge MacKinnon dissenting). The Court had accepted the President’s petition to review the propriety of the grand jury’s naming him as an unindicted coconspirator, but it dismissed that petition without reaching the question. United States v. Nixon, 418 U.S. at 687 n.2.

734 Memorandum for the United States, Application of Spiro T. Agnew, Civil No. 73-965 (D.Md., filed October 5, 1973).

Finally, most recently, the Court has definitively resolved one of the intertwined issues of presidential accountability. The President is absolutely immune in actions for civil damages for all acts within the “outer perimeter” of his official duties.735 The Court’s close decision was premised on the President’s “unique position in the constitutional scheme,” that is, it was derived from the Court’s inquiry of 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.”736 While the Constitution expressly afforded Members of Congress immunity in matters arising from “speech or debate,” and while it was silent with respect to presidential immunity, the Court nonetheless considered such immunity “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.”737 Although the Court relied in part upon its previous practice of finding immunity for officers, such as judges, as to whom the Constitution is silent, although a long common-law history exists, and in part upon historical evidence, which it admitted was fragmentary and ambiguous,738 the Court’s principal focus was upon the fact that the President was distinguishable from all other executive officials. He is charged with a long list of “supervisory and policy responsibilities of utmost discretion and sensitivity,”739 and diversion of his energies by concerns with private lawsuits would “raise unique risks to the effective functioning of government.”740 Moreover, the presidential privilege is rooted in the separation-of-powers doctrine, counseling courts to tread carefully before intruding. Some interests are important enough to require judicial action; “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.741 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 was to prevent; absolute immunity was required.742

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

736 457 U.S. at 748.

737 457 U.S. at 749.

738 457 U.S. at 750-52 n.31.

739 457 U.S. at 750.

740 457 U.S. at 751.

741 457 U.S. at 754.

742 457 U.S. at 755-57. Justices White, Brennan, Marshall, and Blackmun dissented. The Court reserved decision whether Congress could expressly create a damages action against the President and abrogate the immunity, id. at 748-49 n.27, thus appearing to disclaim that the decision is mandated by the Constitution; Chief Justice Burger disagreed with the implication of this footnote, id. at 763-64 n.7 (concurring opinion), and the dissenters noted their agreement on this point with the Chief Justice. Id. at 770 & n.4.

Unofficial Conduct

In Clinton v. Jones,743 the Court, in a case of first impression, held that the President did not have qualified immunity from suit for conduct alleged to have taken place prior to his election to the Presidency, which would entitle him to delay of both the trial and discovery. The Court held that its precedents affording the President immunity from suit for his official conduct — primarily on the basis that he should be enabled to perform his duties effectively without fear that a particular decision might give rise to personal liability — were inapplicable in this kind of case. Moreover, the separation-of-powers doctrine did not require a stay of all private actions against the President. Separation of powers is preserved by guarding against the encroachment or aggrandizement of one of the coequal branches of the Government at the expense of another. However, a federal trial court tending to a civil suit in which the President is a party performs only its judicial function, not a function of another branch. No decision by a trial court could curtail the scope of the President’s powers. The trial court, the Supreme Court observed, had sufficient powers to accommodate the President’s schedule and his workload, so as not to impede the President’s performance of his duties. Finally, the Court stated its belief that allowing such suits to proceed would not generate a large volume of politically motivated harassing and frivolous litigation. Congress has the power, the Court advised, if it should think necessary to legislate, to afford the President protection.744

743 520 U.S. 681 (1997).

744 The Court observed at one point that it doubted that defending the suit would much preoccupy the President, that his time and energy would not be much taken up by it. “If the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the Presidency.” 520 U.S. at 702.

The President’s Subordinates

While the courts may be unable to compel the President to act or to prevent him from acting, his acts, when performed, are in proper cases subject to judicial review and disallowance. Typically, the subordinates through whom he acts may be sued, in a form of legal fiction, to enjoin the commission of acts which might lead to irreparable damage745 or to compel by writ of mandamus the performance of a duty definitely required by law,746 such suits being usually brought in the United States District Court for the District of Columbia.747 In suits under the common law, a subordinate executive officer may be held personally liable in damages for any act done in excess of authority,748 although immunity exists for anything, even malicious wrongdoing, done in the course of his duties.749

745 E.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (suit to enjoin Secretary of Commerce to return steel mills seized on President’s order); Dames & Moore v. Regan, 453 U.S. 654 (1981) (suit against Secretary of Treasury to nullify presidential orders on Iranian assets). See also Noble v. Union River Logging Railroad, 147 U.S. 165 (1893); Philadelphia Co. v. Stimson, 223 U.S. 605 (1912).

746 E.g., Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803) (suit against Secretary of State to compel delivery of commissions of office); Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524 (1838) (suit against Postmaster General to compel payment of money owed under act of Congress); Decatur v. Paulding, 39 U.S. (14 Pet.) 497 (1840) (suit to compel Secretary of Navy to pay a pension).

747 This was originally on the theory that the Supreme Court of the District of Columbia had inherited, via the common law of Maryland, the jurisdiction of the King’s Bench “over inferior jurisdictions and officers.” Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 614, 620-21 (1838). Congress has now authorized federal district courts outside the District of Columbia also to entertain such suits. 76 Stat. 744 (1962), 28 U.S.C. § 1361.

748 E.g., Little v. Barreme, 6 U.S. (2 Cr.) 170 (1804); Bates v. Clark, 95 U.S. 204 (1877); United States v. Lee, 106 U.S. 196 (1882); Virginia Coupon Cases, 114 U.S. 269 (1885); Belknap v. Schild, 161 U.S. 10 (1896).

749 Spalding v. Vilas, 161 U.S. 483 (1896); Barr v. Mateo, 360 U.S. 564 (1959). See Westfall v. Erwin, 484 U.S. 292 (1988) (action must be discretionary in nature as well as being within the scope of employment, before federal official is entitled to absolute immunity). Following the Westfall decision, Congress enacted the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the Westfall Act), which authorized the Attorney General to certify that an employee was acting within the scope of his office or employment at the time of the incident out of which a suit arose; upon certification, the employee is dismissed from the action, and the United States is substituted, the Federal Tort Claims Act (FTCA) then governing the action, which means that sometimes the action must be dismissed against the Government because the FTCA has not waived sovereign immunity. Cognizant of the temptation set before the Government to immunize both itself and its employee, the Court in Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995), held that the Attorney General’s certification is subject to judicial review.

Different rules prevail when such an official is sued for a “constitutional tort” for wrongs allegedly in violation of our basic charter,750 although the Court has hinted that in some “sensitive” areas officials acting in the “outer perimeter” of their duties may be accorded an absolute immunity from liability.751 Jurisdiction to reach such officers for acts for which they can be held responsible must be under the general “federal question” jurisdictional statute, which, as recently amended, requires no jurisdictional amount.752

750 An implied cause of action against officers accused of constitutional violations was recognized in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Butz v. Economou, 438 U.S. 478 (1978), a Bivens action, the Court distinguished between common-law torts and constitutional torts and denied high federal officials, including cabinet secretaries, absolute immunity, in favor of the qualified immunity previously accorded high state officials under 42 U.S.C. § 1983. In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court denied presidential aides derivative absolute presidential immunity, but it modified the rules of qualified immunity, making it more difficult to hold such aides, other federal officials, and indeed state and local officials, liable for constitutional torts. In Mitchell v. Forsyth, 472 U.S. 511 (1985), the Court extended qualified immunity to the Attorney General for authorizing a warrantless wiretap in a ccase involving domestic national security. Although the Court later held such warrantless wiretaps violated the Fourth Amendment, at the time of the Attorney General’s authorization this interpretation was not “clearly established,” and the Harlow immunity protected officials exercising discretion on such open questions. See also Anderson v. Creighton, 483 U.S. 635 (1987) (in an exceedingly opaque opinion, the Court extended similar qualified immunity to FBI agents who conducted a warrantless search).

751 Harlow v. Fitzgerald, 457 U.S. 800, 812 (1982).

752 See 28 U.S.C. § 1331. On deleting the jurisdictional amount, see P.L. 94-574, 90 Stat. 2721 (1976), and P.L. 96-486, 94 Stat. 2369 (1980). If such suits are brought in state courts, they can be removed to federal district courts. 28 U.S.C. § 1442(a).

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