The President’s Absolute Immunity for Unlawfully Firing a Subordinate

by Andy Grewal — Tuesday, Nov. 28, 2017

My prior post examined a state court case, Ex Parte Parry, which held that the prosecution of the state’s chief executive, Governor Rick Perry, for an official act would violate the separation of powers under that state’s constitution. The post argued that the U.S. Supreme Court could adopt a similar separation of powers argument if President Trump were prosecuted, under an obstruction of justice theory, for one of his own official acts (the firing of James Comey). This post considers a U.S. Supreme Court case that directly deals with the President’s allegedly unlawful firing of a subordinate. It establishes his absolute civil immunity for official acts and may also imply his absolute criminal immunity for those acts.

In Nixon v. Fitzgerald, 457 U.S. 731 (1982), an Air Force management analyst, Ernest Fitzgerald, testified in Congress about waste and inefficiencies in his agency. Though his testimony had its intended effect — it drew wide public attention — it also put him in the crosshairs of the White House. When the Air Force later reorganized internally, it dismissed Fitzgerald, purportedly as part of the reorganization. However, Fitzgerald believed that he had been dismissed unlawfully, in retaliation for his congressional testimony. He consequently sued several government officials, including President Nixon, against whom he sought damages under a direct Constitutional challenge and under two general federal statutes.

Fitzgerald’s lawsuit against Nixon eventually reached the Supreme Court, where the now-former President argued he enjoyed immunity from this private suit for damages. The Court agreed, resting its views on separation of powers principles and historical practices. The Court concluded that the President “is entitled to absolute immunity from damages liability predicated on his official acts,” like the firing of subordinate. Id. at 749. That immunity would provide “‘the maximum ability to deal fearlessly and impartially’ with the duties of the office,” which often dealt with matters that “‘arouse[d] the most intense feelings.” Id. at 749. Allowing a lawsuit like Fitzgerald’s to proceed would thus threaten the efficient function of the Oval Office.

Fitzgerald countered that any firing that contravened a federal statute, as his allegedly had, could not qualify as an official act deserving of absolute immunity. But the Court rejected that argument, finding that Nixon’s allegedly unlawful firing of Fitzgerald “lay well within the outer perimeter of his authority.” Id. at 757. To conclude otherwise would “subject the President to trial on virtually every allegation than an action was unlawful, or was taken for a forbidden purpose,” robbing “absolute immunity of its intended effect.” Id. at 756. Also, any lawsuit over an allegedly unlawful firing would necessarily involve “an inquiry into the President’s motives,” which “could be highly intrusive.” Id. Thus, even an action that allegedly violated a federal statute, like an unlawful firing, could qualify as an official act that enjoyed absolute civil immunity.

Nixon v. Fitzgerald sharply divided the Court, and Justice White’s dissent, joined by 3 other Justices, complained that the majority, by grounding its conclusion in separation of powers principles, had prevented Congress from establishing any remedy for Presidential misconduct, rendering the “criminal laws of the United States . . . wholly inapplicable to the President.” Id. at 765. The President, they believed, had thus become “above the law.” Id. at 766. The Court’s opinion, on its face, meant that the President “is immune not only from damages actions but also from . . . criminal prosecutions” for his official acts. Id. at 780.

The majority responded to these allegations without any discussion of the President’s potential criminal liability. However, it emphasized that immunity for official acts would “not leave the Nation without sufficient protection against misconduct” by the President. Id. at 757. The Constitutional remedy (impeachment) remained, and various formal and informal checks applied to the President that did not apply to other executive officials, such as “constant scrutiny by the press,” “[v]igilant oversight by Congress,” a desire to earn re-election, and so on. Id. at 757.

Nixon v. Fitzgerald does not directly resolve whether the Constitution permits Congress to criminalize a President’s official act, because the case dealt with only a private suit for damages. But it should give pause to those who believe that the federal obstruction of justice statutes can constitutionally reach President Trump’s official acts related to the Russia investigation (i.e., the firing of James Comey). Many of the reasons that the Court invoked to support civil immunity would equally support criminal immunity including, in particular, separation of powers principles and the concerns with examining the President’s motives for firing a subordinate. Also, when the Court laid out the multiple ways that the President could be checked for corrupt dismissals, it made no mention of criminal prosecution, and offered no correction or clarification to the dissent’s claim that the President, under the Court’s holding, would be immune from that prosecution.*

Nonetheless, though the Court reached the correct result, Fitzgerald does not thoroughly address all potential counterarguments. Nor is its reasoning entirely consistent. Thus, its implication (not holding) that the President cannot be criminally prosecuted for his official acts may have limited influence on the current Justices.

But when one couples Fitzgerald with cases like Myers v. United States, 272 U.S. 52 (1926), it becomes harder to believe that President Trump could be properly prosecuted for his firing of Comey. Under Myers and related cases, the President enjoys the “illimitable” and “unrestricted” right to fire principal executive officers, like the FBI Director. See also Free Enterprise, 561 U.S. at 515 (Breyer, J., dissenting) (“The separation-of-powers principle guarantees the President the authority to dismiss certain Executive Branch officials at will.”). Were Congress to enact limits on the President’s authority to fire such officers (for example, by making them removable only for good cause), black letter law would dictate the unconstitutionality of those limitations. Additionally, black letter law would dictate that the President cannot be held liable civilly for any firings. Those who nonetheless believe that the President can be jailed for doing so should explain how that view is consistent with the limitless authority the President is granted for firing principal executive officers and with his absolute civil immunity for firing anyone.

Follow me on Twitter: @AndyGrewal

* Chief Justice Burger wrote a concurrence saying that the absolute immunity role in the Court’s opinion “is limited to civil damages claims,” which implies that he would not extend immunity to criminal prosecutions. See 457 U.S. 759. But no other Justice joined Burger’s concurrence. This suggests that the other members of the majority may have had different views, and their divergence may help explain why the Court’s opinion avoids directly addressing criminal prosecutions.

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About Andy Grewal

Law Professor, University of Iowa

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