Can the President Get Away with That?
Presidential immunity explained
Our founders were clear they did not want the President to have the power of a monarch. They did not want the President to have “absolute immunity” in all situations. Giving the President absolute immunity would mean that the President would not be subject to the judicial branch of the government at all. Making him “above the law.” Over the past few hundred years, the Supreme Court has visited the issue of presidential immunity several times. As a result, different circumstances require different levels of immunity.
Criminal charges
A President may be impeached by the House of Representatives and convicted by the Senate for any criminal conduct, but he cannot be prosecuted criminally while in office by the judicial branch. That means that a state or federal prosecutor cannot bring charges or indict a President for a crime while in office. This doctrine of presidential immunity stems from Alexander Hamilton’s writing in the Federalist papers. He wrote that a President “may be impeached, tried and upon conviction … would afterwards be liable to prosecution and punishment in the ordinary course of law.” In other words, while in office, the appropriate venue for criminal charges is through Congress not the Courts. The Justice Department’s Office of Legal Counsel concurs with this assessment, but the Supreme Court has never ruled on the issue.
Criminal investigation by a federal prosecutor
Even though a President has immunity from judicial criminal charges, he may still be criminally investigated while in office. President Richard Nixon was faced with a New York prosecutor’s subpoena for tape recordings of his conversation while in the Oval Office. He argued to the Supreme Court that because he was President and could not be criminally charged by the prosecutor that he was also immune from criminal investigations. The Supreme Court held in a unanimous decision that he had to turn over the tapes because presidential immunity did not immunize Nixon from prosecutorial criminal investigations. The damaging contents of these tapes caused Nixon to resign.
Criminal investigation by a state prosecutor
The Supreme Court in Trump v. Vance held that the President is not immune from a criminal investigations by a state prosecutor. Lawyers for Trump argued that there were special considerations involving a state investigation and so a higher standard for the subpoena should apply. The Court rejected that argument stating that existing checks on state power available to the President through the federal courts would protect the President from any undue burden or harassment.
Civil lawsuit regarding official acts
The Supreme Court in Nixon v. Fitzgerald held that a President has absolute immunity with regard to civil lawsuits stemming from his official acts. For instance, if a President’s veto of a bill causes a family to suffer economic harm, that family cannot sue the President for his veto. The Court clarified however, that this immunity does not apply to any official action that may be criminal. In that case, the standards regarding criminal charges and investigations as discussed above would apply even if the action was an official action.
Civil lawsuit regarding private acts
The Supreme Court held in the decision Clinton v. Jones that there is no presidential immunity with respect to a President’s private actions undertaken before he took office. In that case, the Court allowed a civil lawsuit alleging claims for sexual harassment and defamation by Paula Jones to proceed against President Clinton to proceed. In that proceeding, Clinton lied under oath during a deposition. This perjury charge was the basis of his impeachment by the House. The Senate failed to convict him. He was never charged with perjury by a prosecutor after leaving office.
