Trust & The Presidency: Part 6 of 7

Welcome to Part Six of Trust and the Presidency!

In Part One, you learned that the framers of our Constitution had a lot of trust issues. Among these were whether the presidency could be trusted to serve the common good rather than a favored faction and whether the president could be trusted with enough power to deal with the problems of the day without tyrannizing the people.  You learned the tried to overcome their trust issues by creating a presidency with constrained powers and autonomy that would be accountable to Congress. They also attempted to insulate the presidency from the politics of faction through the invention of the Electoral College.

In Part Two, you learned that, contrary to the framer’s intentions, the presidency was politicized when the state legislatures required their electors in the Electoral College to represent the popular vote in their states. In so doing, the presidency gained a power base and accountability to the voters in addition to accountability to Congress. This shift in power and accountability can sometimes motivate populist or partisan presidents to try to weaken constitutional constraints that get in the way of their ambition. In Parts Three, Four, and Five, you learned how the Presidential powers did, in fact, expand. 

In Part Six, you will learn how presidents sometimes try to avoid some kinds of accountability to Congress, the criminal courts, and the civil courts.

PART SIX: ACCOUNTABILITY

A. Introduction

1.          Presidents sometimes try to avoid some kinds of accountability to Congress, the criminal courts, and the citizens through the civil courts.  Reduced accountability to Congress may seem like a small thing, so long as presidents remain accountable to voters through elections.  That logic is correct only when all voters have full knowledge of any illegal Executive Branch actions. In fact, few of us do.  The media can help, so long as their first amendment rights are upheld, but they have no power to compel the President or other Executive Branch officials to share information, nor to impose legal penalties for violating the Constitution or the laws.  By contrast, Congress and the courts have the power to compel testimony, and the courts can impose penalties.  Yet, Congress and the Supreme Court have agreed that Presidents and most Executive Branch officers have executive privilege to withhold some kinds of information from Congress.  Sitting presidents also claim executive immunity protects them and most other Executive Branch officials from criminal indictment and from civil lawsuits brought by citizens.  The outcomes have been mixed, but lean towards accountability.

B. Executive Privilege and Accountability to Congress

2.          Presidents have asserted they have an executive privilege to withhold information from Congress.[1]  Executive privilege is an implied power that permits the Executive Branch to resist requests for information it believes must be kept confidential in order to meet the responsibilities of the Executive Branch, whether for national security or protecting internal deliberations. (Note: some people refer to executive privilege as executive immunity from having to share information with Congress. This is different from executive immunity from lawsuits, as discussed in the next section.)

3.          The first assertion of executive privilege followed the first assertion of Congressional oversight.  The U.S. Congress established a committee in 1792 to look into the defeat of the U.S. Army by a confederation of indigenous tribes in the Northwest Territory. President Washington provided the committee with information only after asserting that the disclosure was discretionary and that presidents might constitutionally withhold information that, in their opinion, might harm the common good. He later implemented his view by withholding documents Congress sought in connection with negotiations over the 1794 Jay Treaty. This laid a foundation for future claims of executive privilege. 

  • The most frequent use of executive privilege occurred during the Eisenhower administration in response to Congressional abuse led by Senator Joseph McCarthy, who compelled testimony from executive office personnel during the 1954 Army hearings.[2]  The Eisenhower administration asserted executive privilege forty-four times.
  • The most infamous example of a president using executive privilege to obstruct accountability to Congress – and the American people – came from President Nixon.[3]  After the discovery of a failed 1972 break-in of the Democratic National Committee headquarters, witnesses testified that the President had approved plans to cover up administration involvement in the break-in and that there was a voice-activated taping system in the Oval Office. Throughout the investigation, the administration resisted congressional requests for testimony, documents, and audiotapes.

4.          There is an ongoing debate about the scope of executive privilege.  Under the Executive Branch’s interpretation, executive privilege covers presidential communications; deliberative communications within the Executive Branch; military, diplomatic, and national security information; and law enforcement files.  Congress interprets the privilege more narrowly, while also arguing that an adequate demonstration of need should dominate any issue of what is and is not covered under executive privilege.

5.          Supreme Court rulings on the scope of executive privilege have been mixed. It’s ruling in United States v. Nixon (1974) created a double-edged sword.[4] On the side, the Court ruled that the confidentiality of presidential communications necessary to fulfill the obligations of the office is fundamental to the operation of Government and inextricably rooted in the separation of powers. On the other side, the Court ruled that the President’s assertion of general executive privilege “cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.”  Thus, the court ruled that the President must provide Congress with audio tapes he had previously held back. 

6.          The Supreme Court recently affirmed Congressional subpoena powers and defined their scope.  Until recently, this question had been a particularly vexing issue.[5]  The federal courts had generally been resistant to making such determinations, preferring that the executive and legislative branches resolve their differences through negotiation.[6]  The Executive Branch has historically viewed the privilege broadly.  In July 2020, however, the Court ruled in Trump v. Mazars (2020) that Congress does have subpoena powers and can subpoena information from the President, and any official in the Executive Branch, so long as the federal courts assess that four criteria are met. (1) The courts must “carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers.” (2) The courts must “insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective.” (3) The courts must be particularly careful when “Congress contemplates legislation that raises sensitive constitutional issues, such as legislation concerning the Presidency.” (4) They “should be careful to assess the burdens imposed on the President by a subpoena.”

D. Immunity and Accountability in Criminal Courts

7.          Presidential immunity from accountability in the civil courts has been subject to a long-running tug of war between the presidency and the Supreme Court.[7]  In Mississippi v. Johnson (1867), the Supreme Court placed the Presidential exercise of powers beyond the reach of judicial direction.  In 1973, the Office of Legal Counsel in the Department of Justice adopted the position that a sitting president should not be subject to indictment (the formal accusation of a crime by legal authorities) or criminal prosecution. This position was justified on the assumption that indictment and prosecution would unconstitutionally undermine the capacity of the Executive Branch to perform its constitutionally assigned functions. The Supreme Court qualified this position, and it’s earlier 1867 ruling in United States v. Nixon (1974). The Court held that “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.”  In Nixon v. Fitzgerald (1982), the Supreme Court ruled that the President is entitled to absolute immunity from having to pay civil damages (see below), but the President is not immune from criminal charges stemming from his official or unofficial acts while in office. In 2000, however, the DOJ asserted that court decisions in the intervening years had not changed its conclusion that a sitting president is “constitutionally immune” from indictment and criminal prosecution.[8]  This was not the last word on the subject.

8.          The Supreme Court recently reaffirmed that sitting presidents are subject to criminal law for acts committed before and during their presidency.  The Supreme Court’s opinion in Trump v. Vance (2020) held that neither Article II of the Constitution nor the Supremacy Clause in Article VI immunizes a sitting president from a criminal investigation by a state grand jury. It follows that a sitting president can also be indicted in criminal court.  As Chief Justice John Roberts stated, “in our judicial system, ‘the public has a right to every man’s evidence,” and “since the earliest days of the Republic, ‘every man’ has included the President of the United States.”

E. Immunity and Accountability to Civil Courts

9.          The concept of presidential immunity can be traced back to the concept of sovereign immunity. Sovereign immunity is an English feudal concept that the ruler can do no wrong.  President Nixon once famously said, “If the President does it, then it is not illegal.”[9] Some constitutional scholars argue to the contrary.  They assert that presidential immunity violates the fundamental republican principle that nobody is above the law. In their opinion, the framers must have agreed with this. If they had not, then they could have included a provision in the Constitution explicitly shielding the President from prosecution, but they did not do so.

10.        Executive immunity protects sitting Presidents and Executive Branch officers from lawsuits seeking monetary damages for harm done to the civil rights of citizens or their businesses.[10] Even so, sitting Presidents are not immune from being brought to civil court for acts committed before their presidency.  Executive immunity only applies to lawsuits against government officials as individuals, distinct from suits against the government for civil damages caused by the officials’ actions. 

11.        The President’s immunity is absolute, while the immunity of other federal executive officials is qualified.  In Harlow v. Fitzgerald (1982), the Supreme Court said that the President, prosecutors, and similar officials were entitled to absolute immunity from having to pay civil damages as long as their actions were within the scope of their jobs. Other government officials trying to qualify for absolute immunity must prove that (1) the responsibilities of their position are sensitive enough to require absolute immunity, and (2) they were discharging the protected function of the position when performing the act in question.  In Clinton v. Jones (1997), the court ruled that, while a sitting President is categorically free from civil liability for personal misdeeds that take place while in office, sitting Presidents do remain liable in civil court for any acts committed before taking office.  (In this case, sexual harassment.) As a result, President Clinton was compelled to testify before a U.S. District Court judge. Clinton’s testimony in the Paula Jones case provided Independent Counsel Ken Starr with more material for his on-going investigation into Clinton’s pre-presidency financial dealings with the Whitewater Land Company. Testimony from Monica Lewinski ultimately resulted in Clinton’s impeachment in the House of Representatives on February 12, 1999. The Senate subsequently failed to convict him.

12.        Executive branch officials can be protected by qualified immunity from lawsuits seeking civil damages.  As the Supreme Court asserted in Harlow v. Fitzgerald (1982), Executive Branch officials do not have absolute immunity because there is a need to hold public officials accountable when they exercise power irresponsibly. Yet the courts have long agreed that Executive Branch officials also need to be shielded from harassment, distraction, and liability when they perform their duties reasonably.[11]  In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court said that a qualified immunity defense must be made early in a court proceeding because qualified immunity is a defense to stand trial, not merely a defense from liability. The Court also set out a two-part test for whether a government official is entitled to qualified immunity: (1) a court must consider whether a constitutional right has been violated, and (2) the court must also consider whether that right was clearly established at the time of the alleged conduct. In Pearson v Callahan (2009), the Supreme Court ruled that the “Saucier Test” could sometimes be limited to the second step at the discretion of the presiding judge. ​In practice, thus far, the courts have required alleged victims to prove a legal basis for a narrowly defined right, applicable only to their case.[12]

Application:  Under the Saucier test, qualified immunity applies unless an alleged victim can prove that the official’s conduct violated such a right.  What if the Supreme Court had ruled instead that the government official has the burden of proof to show he or she did not infringe on rights provided by law or the Constitution and its amendments?

Congratulations!  You have completed Part Six of the series on Trust and the Presidency.

You learned that presidents sometimes try to avoid some kinds of accountability to Congress, the criminal courts, and the citizens through the civil courts.  Congress and the Supreme Court have agreed that Presidents most Executive Branch officers have executive privilege to withhold some kinds of information from Congress.  Presidents can also claim executive immunity protects them and most other Executive Branch officials from civil lawsuits while in office.  Sitting presidents are not immune from investigation and indictment in criminal courts, nor from prosecution for civil damages committed before their presidency.

Executive privilege is an implied power that permits the Executive Branch to resist requests for information it believes must be kept confidential in order to meet the responsibilities of the Executive Branch, whether for national security or protecting internal deliberations. The Executive Branch has historically viewed the privilege broadly. Under the Executive Branch’s interpretation, executive privilege covers presidential communications; deliberative communications within the Executive Branch; military, diplomatic, and national security information; and law enforcement files.  Congress interprets the privilege more narrowly, while also arguing that an adequate demonstration of need should dominate any issue of what is and is not covered under executive privilege.

The Supreme Court recently affirmed Congressional subpoena powers and defined their scope. The Court ruled in Trump v. Mazars (2020) that Congress does have subpoena powers and can subpoena information from the President and any official in the Executive Branch so long as the federal courts assess that the request is warranted by the legislative purpose asserted by Congress, the subpoena is no broader than reasonably necessary, the subpoena is mindful of constitutional checks and balances, and the subpoena does not impose an undue burden on the presidency. 

Sitting presidents are subject to criminal law for acts committed before and during their presidency.  The Supreme Court’s opinion in Trump v. Vance (2020) held that neither Article II of the Constitution nor the Supremacy Clause in Article VI immunizes a sitting president from a criminal investigation by a state grand jury. It follows that a sitting president can also be indicted in criminal court. 

Executive immunity protects sitting Presidents and Executive Branch officers from lawsuits seeking monetary damages for harm done to the civil rights of citizens or their businesses. Even so, sitting Presidents are not immune from being brought to civil court for acts committed before their presidency.  Executive immunity only applies to lawsuits against government officials as individuals, distinct from suits against the government for damages caused by the officials’ actions. 

The President’s immunity from civil damages is absolute, while the immunity of other federal executive officials is qualified.  Executive branch officials do not have absolute immunity because there is a need to hold public officials accountable when they exercise power irresponsibly. Yet the courts have long agreed that Executive Branch officials also need to be shielded from harassment, distraction, and liability when they perform their duties reasonably. The Saucier Test is used to determine whether an official may be denied qualified immunity: the courts required alleged victims to prove a legal basis for a narrowly defined right, applicable only to their case at the time of the alleged misconduct, and prove that right was violated.

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© Center for Free, Fair, and Accountable Democracy
July 2020

This material is to be used only for civic education.
It may be copied and distributed only for non-profit, non-partisan, educational purposes and only with proper credit to the
Center for Free, Fair, and Accountable Democracy.
Written by Douglas Addison for the
Center for Free, Fair, and Accountable Democracy.

Principle Reviewers:
Jay Barth,
M.E. and Ima Graves Peace Distinguished Professor of Politics, Emeritus; Hendrix College

Benjamin Ginsberg,
David Bernstein Professor of Political Science,
Johns Hopkins University

Internal Reviewers:
Mark Nelson, Director
Eric Palladini, Director
Grayson Lewis, Advisory Board
Mark Molli, Advisory Board

CFFAD is a non-profit organization providing non-partisan civic education.

Cover photo: whitehouse.gov

End Notes

[1] Some presidential powers can be used to reinforce others.  Signing statements asserting executive privilege have become part of the strategy used to withhold information.  Congressional Research Service (2012). Presidential Signing Statements: Constitutional and Institutional Implications, pp. 18-19.

[2] See https://constitutioncenter.org/blog/when-presidents-use-executive-privilege

[3] See https://www.history.com/topics/watergate-scandal-timeline-nixon

[4] Congressional Research Service (2019). Congressional Subpoenas: Enforcing Executive Branch Compliance, pp. 20-21.

[5] Congressional Research Service (2019), p. 24.

[6] See page 12 of the court ruling here https://www.cadc.uscourts.gov/internet/opinions.nsf/29F7900862BA6CD68525851C00784758/$file/19-5331-1831001.pdf

[7] See https://www.law.cornell.edu/constitution-conan/article-2/section-3/presidential-immunity-from-judicial-direction  and https://www.law.cornell.edu/wex/qualified_immunity

[8] Office of Legal Counsel (2000). A Sitting President’s Amenability to Indictment and Criminal Prosecution. From https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf

[9] Said in a 1977 interview with David Frost.

[10] From USLegal.com.

[11] From https://www.law.cornell.edu/wex/qualified_immunity

[12] Qualified immunity is also extended to many other government officials, including police officers. Many observers assert that the way qualified immunity has been implemented for the police has obstructed justice while others assert it has protected officers from unnecessary lawsuits and harassment. See https://supreme.findlaw.com/supreme-court-insights/pros-vs-cons-of-qualified-immunity–both-sides-of-debate.html