If Trump v. United States has no foundation in the original meaning of the Constitution (as discussed in my last post), what is the rationale of the decision? Delahunty and Yoo make three main points in support of the majority’s ruling: (1) the holding is consistent with (if not compelled by) the Court’s reasoning in Nixon v. Fitzgerald, 457 U.S. 731 (1982); (2) the holding is consistent with separation of powers principles; and (3) the holding is supported by public policy considerations, specifically the need to end the (allegedly) abusive prosecutions of the former president (and to prevent similar actions in the future). To a significant extent, these justifications amount to different ways of saying the same thing. Today we will look at the Fitzgerald decision and whether the separation of powers/policy rationales of that case provide support for Trump.
Fitzgerald held, in a 5-4 decision, that current and former presidents enjoy absolute immunity from civil damage suits for actions taken within the “outer perimeter” of their official duties. The majority opinion by Justice Powell identified a variety of sources of law that were relevant to the issue before it. First, it noted that its prior immunity decisions “have been guided by the Constitution, federal statutes, and history.” 457 U.S. at 747. Second, “at least in the absence of explicit constitutional or congressional guidance, our immunity decisions have been informed by the common law.” Id. Third, the Court “necessarily also has weighed concerns of public policy, especially as illuminated by our history and the structure of our government.” Id. at 747-48.
The Court then suggest that the immunity analysis may be somewhat different for the president:
In the case of the President the inquiries into history and policy, though mandated independently by our cases, tend to converge. Because the Presidency did not exist through most of the development of the common law, any historical analysis must draw its evidence primarily from our constitutional heritage and structure. Historical inquiry thus merges with the kind of “public policy” analysis appropriately undertaken by a federal court. This inquiry involves 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.
457 U.S. at 748.
This is a rather word salady way of saying two things. First, the Court thinks that the president should be treated differently in the immunity analysis than other executive officials, such as cabinet officers and governors. Specifically, while the Court’s precedents called for evaluating immunity based on the particular function being performed by the official who is sued for damages, Fitzgerald found that the unique nature of the presidency required extending immunity to all conduct within the “outer perimeter” of this official responsibility. Id. at 756; see also id. at 750 (“The President’s unique status under the Constitution distinguishes him from other executive officials.”).
The second point is that the grounding of the president’s immunity in separation of powers arguably placed it beyond Congress’s power to regulate. If the Constitution mandates absolute immunity for the president, Congress would be prohibited from imposing damages liability for any conduct within the outer perimeter of his duties. However, the Fitzgerald Court declined to decide whether the president would enjoy immunity in the event Congress enacted a statute which expressly authorized civil damages against the president. See Fitzgerald, 457 U.S. at 748-49 n.27 (“our holding today need only be that the President is absolutely immune from civil damages liability for his official acts in the absence of explicit affirmative action by Congress”).
This position was criticized by both the dissenters and Chief Justice Burger in his concurrence; they agreed that it was inconsistent for the majority to both claim that the president had absolute immunity based on separation of powers, on the one hand, and to leave open whether this immunity could be abrogated by affirmative congressional action, on the other. See Fitzgerald, 457 U.S. at 792 “We are never told . . . how or why congressional action could make a difference.”) (White J., dissenting); id. at 798 (Blackmun, J., dissenting); id. at 758, 763 n.7 (Burger, C.J., concurring).
The internal correspondence of the Fitzgerald Court shows that almost all of the justices, in fact, believed that this was a contradiction, though they were sharply divided on which way it should be resolved. The four dissenting justices, of course, believed the Constitution provide no immunity, while at least two other justices in the majority privately agreed with Burger that the constitutional immunity would apply even in the face of a statute to the contrary. Powell also indicated he would agree with Burger should the issue be presented, though he fluctuated somewhat on how definite this position was. Only Justice Stevens was firmly in the undecided camp, and he evidently refused to join the majority opinion unless it clearly spelled out that affirmative congressional action would present a different case.
Personally, I can see where Stevens was coming from. Although the Fitzgerald Court states that “[w]e consider [the president’s immunity from civil damages] 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,” 457 U.S. at 749, these buzzwords mean very little. The fact that the Court “considers” immunity to be a “functionally mandated incident of the President’s unique office” just means that it believes subjecting the president to civil damages is a bad idea that would interfere with his ability to do his job. That it is “rooted in the separation of powers” is little more than another way to refer to the president’s “unique office,” or, as the Court phrases it later, “the special nature of the President’s constitutional office and functions.” See 457 U.S. at 756. The claim that immunity is “supported by our history” appears to be mostly meaningless filler.
Indeed, Powell’s early drafts used the phrase “justified by considerations of public policy” instead of “supported by our history.” He changed this wording, and made several other edits, in response to comments from his colleagues that the draft was too forthright in acknowledging that the decision was essentially an exercise of judicial policymaking. One particularly amusing memo from Stevens expresses concern about the frequent references to public policy and descriptions of “the Executive’s immunity as something that is granted by the Court rather than provided by law.” He explained that “[i]n a realistic sense, perhaps your opinion is entirely correct in referring to grants of immunity by judges, but I feel much more comfortable when I am able to say that we are merely applying the law as we understand it to exist independently of the composition of the Court.” Powell dutifully made the cosmetic changes, but the dissent still pointed out the reality. See 457 U.S. at 769 (noting that “the judgment in this case has few, if any, indicia of a judicial decision; it is almost wholly a policy choice, a choice that is without substantial support and that in all events is ambiguous in its reach and import”) (White, J., dissenting).
Given that, in a “realistic sense,” the opinion was more of a policy choice than a judicial decision, it is understandable that Stevens insisted on reserving the question of what would happen if Congress acted to impose liability on the president. Congress is rather better suited than the Court to make a policy judgment about whether the president should be subject to civil liability. Even if one accepts that the Constitution requires the courts to balance the public interest supporting and opposing immunity, the fact of congressional action would seem to be a factor that should be considered in weighing the competing interests (a point Powell made to his skeptical colleagues in an internal memo).
It is also worth noting that the Fitzgerald Court’s rhetoric about the president’s “unique office” should be taken with a grain of salt. In a case several years earlier, Butz v. Economou, 438 U.S. 478 (1978), the Court had held by a 5-4 majority that cabinet officers and other federal officials were generally entitled only to qualified immunity in civil damage suits. The dissent, however, contended that absolute immunity should apply. Three of the four dissenters in Butz joined the majority in Fitzgerald, while four members of the Butz majority dissented in Fitzgerald. Powell was the only justice who switched sides, and thus perhaps the only one who thought the president’s unique office was determinative of the level of immunity. (Justice O’Connor, who joined the majority opinion in Fitzgerald, had not been on the Court when Butz was decided). The decision to provide absolute immunity to the president but not to cabinet officers is thus one not necessarily dictated by the reasoning of either Butz or Fitzgerald. Cf. Fitzgerald, 457 U.S. at 784 (pointing out that the majority’s concerns about the chilling effect of civil lawsuits would apply to all officers, not just the president) (White, J., dissenting).
Does Fitzgerald “Logically” Support Trump?
Be that as it may, Fitzgerald is a binding precedent of the Court, and Delahunty and Yoo argue that the Trump Court “borrowed heavily from the logic” of this precedent and adhered closely to its (non-originalist) method of constitutional reasoning. They explain that the Fitzgerald Court, employing a “functionalist” analysis and “[e]mphasizing the uniqueness of the presidency, [] sought to ward off the harm that would be done to a President’s ability to perform his constitutional functions were he exposed to damages liability for official acts.” Therefore, Trump merely “extended Fitzgerald from civil to criminal liability,” which was “a logical move in that the criminal prosecution of a President for official conduct would raise the stakes even higher and would constrain the exercise of presidential discretion even further.”
For purposes of discussion, I am willing to assume that this was a logical move, or at least that many people consider it so. However, I am constrained to observe that it does not seem very logical to me. Civil immunity is fundamentally different than criminal immunity. Government officials are frequently required to make discretionary decisions which by their nature will harm, or at least disappoint, a large number of people. It has therefore been generally (perhaps universally) accepted that such officials, both state and federal, must have some type of civil immunity to prevent them from being hauled into court on a constant basis. This is because civil complaints, unlike criminal prosecutions, can be brought by anyone, are subject to no independent checks (such as grand juries), and are subject to less rigorous standards in terms of pleadings and evidence. Thus, the issue in Fitzgerald was simply whether the president should receive qualified immunity, as had been recognized for most state and federal executive officials, or absolute immunity, as (the Court stressed) had long been afforded to judges, prosecutors and certain administrators performing quasi-judicial functions. But no one suggested, either in Fitzgerald or any of the long line of civil immunity cases that preceded it, that any of these officials would have immunity from criminal prosecution. As the Court had observed a decade earlier, civil immunity “has never been applied to shield executive officers from prosecution for crime.” Gravel v. United States, 408 U.S. 606, 627 (1982).
To be sure, one can “logically” extend Fitzgerald’s reasoning (or at least some of it) to criminal immunity. For example, the Court states that “[a]mong the most persuasive reasons supporting official immunity is the prospect that damages liability may render an official unduly cautious in the discharge of his official duties.” Fitzgerald, 457 U.S. at 752 n.32. One could logically extend this argument from civil damages to criminal liability or to impeachment or to any kind of legal accountability. As long as government officials have some reason, however remote, to fear they could face repercussions from unpopular or controversial decisions, it could make them “unduly cautious.” Or perhaps “duly cautious,” the Court does not explain how one tells the difference.
The Fitzgerald dissent pointed to the possibility of such a slippery slope argument:
Taken at face value, the Court’s position that as a matter of constitutional law the President is absolutely immune should mean that he is immune not only from damages actions but also from suits for injunctive relief, criminal prosecutions and, indeed, from any kind of judicial process. But there is no contention that the President is immune from criminal prosecution in the courts under the criminal laws enacted by Congress or by the States for that matter. Nor would such a claim be credible. The Constitution itself provides that impeachment shall not bar “Indictment, Trial, Judgment and Punishment, according to Law.”
Fitzgerald, 457 U.S. at 780 (White, J., dissenting).
Note that the dissenters are not predicting that the majority’s reasoning will lead to criminal immunity for the president. Rather they are making the point that if the framers of the Constitution thought that the nature of the presidency required its occupant to be free of any potential accountability in the courts for his actions (his official actions, mind you), they would have not expressly provided that he could be prosecuted criminally. Because the Constitution is clear that the president can in fact be prosecuted for such actions (a proposition the dissent viewed as undisputed), the dissent maintained that the majority’s attempt to infer absolute civil immunity from the constitutional structure or special obligations of the presidency was flawed.
Justice Powell’s majority opinion does not directly respond to the dissent’s point about the president’s liability for criminal conduct, although it notes in passing that “there is a lesser public interest in actions for civil damages that, for example, in criminal prosecutions.” Fitzgerald, 457 U.S. at 754 n.37. Moreover, while the Court lists a number of “formal and informal checks” on the president that will protect the nation against executive misconduct in the absence of civil damage remedies, it does not include criminal prosecution among them. See id. at 757.
Some commentators have speculated that the majority’s omission of criminal prosecution as an accountability mechanism is a hint that it believed presidents enjoy both criminal and civil immunity for official acts. See Amandeep S. Grewal, The President’s Criminal Immunity, 77 SMU L. Rev. 81, 108 & n.231 (2024) (“The Court could have easily referred to prosecution as a potential remedy for a president’s allegedly criminal acts, but it did not.”); Keith E. Whittington, Presidential Immunity, 2023-2024 Cato Sup. Ct. Rev. 283, 292 (2024) (“Notably, the Court did not in Fitzgerald list criminal prosecution as among those ‘alternative remedies,’ and the dissent in Fitzgerald thought the logic of the Court’s opinion would in fact naturally extend to at least some criminal protections.”).
This argument strikes me as quite a leap and, tellingly, even Delahunty and Yoo do not make it (nor did the Trump Court or, for that matter, Trump’s lawyers). Nonetheless, the failure of the Fitzgerald Court to mention criminal prosecution as an accountability mechanism is admittedly odd. As it happens, there is an explanation for this omission, which can be found in the recently released papers of Justice Powell. The initial draft opinion circulated by Powell did state unequivocally that the president could be prosecuted for criminal behavior, at least after he left office. However, Justice Rehnquist responded the next day, in a March 18, 1982 memo, as follows:
You state that “Presidents may be prosecuted criminally, at least after they leave office.” While this may well be correct, it seems to me there is absolutely no necessity for saying so in this case; it is not an issue here, and so far as I know the Court has never so held.
It is apparent from the original draft and Rehnquist’s response that Powell, at least, thought it was non-controversial to say that presidents could be criminally prosecuted after they leave office (if not before). And why wouldn’t he? No party to the case (or amicus, as far as I know) disputed this. As White’s dissent put it, “there is no contention” that the president has any criminal immunity, regardless of whether Rehnquist wished to affirmatively endorse the proposition. Moreover, while Powell exceeded to Rehnquist’s request to remove the sentence at issue, both the final majority opinion and Chief Justice Burger’s concurrence make clear that Fitzgerald applies only to civil damages cases. See Grewal, 77 SMU L. Rev. at 108 n.232 (acknowledging that “Justice Burger’s concurrence may have been an attempt to limit any implications in the majority opinion related to criminal immunity”).
To be sure, Rehnquist’s note may be interpreted as saying that there is an open or unsettled question whether the president enjoys any immunity from criminal prosecution since “so far as I know the Court has never . . . held” that he lacks such immunity. Notably, however, Rehnquist offers no real reason for thinking the president does enjoy criminal immunity and acknowledges Powell “may well be correct” in saying that he does not. Rehnquist does not say that there is any tension between the Court’s reasoning in Fitzgerald and the sentence he wishes be excised from Powell’s draft. Basically, Rehnquist is saying he is unsure whether a question exists and would prefer not to think about it.
None of this is to suggest that the internal correspondence of the Fitzgerald Court is legally relevant to the proper interpretation or application of that decision as a precedent. As a matter of legal theory, the precedential value of the Fitzgerald decision is independent of the private opinions of the justices on the Court. Moreover, even if Powell had left the excised sentence in the Fitzgerald decision, it is entirely possible that the Trump Court would have reached the same result, perhaps on the ground that the “logic” of the Fitzgerald Court’s reasoning outweighs the “dicta” in that sentence.
But this just goes to show that any limitations, express or implied, in the Trump decision itself are as meaningless as those in Fitzgerald. The only logic I see is that immunity will be extended whenever a majority of the Court thinks it’s a good idea. And that is important to keep in mind when we consider what other immunity decisions could come in the future.