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

U.S. Supreme Court NIXON v. FITZGERALD, 457 U.S. 731 (1982) 457 U.S. 731

NIXON v. FITZGERALD CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 79-1738. Argued November 30, 1981 Decided June 24, 1982

During the waning months of the Presidency of Lyndon B. Johnson in 1968, respondent, a management analyst with the Department of the Air Force, testified before a congressional Subcommittee about cost-overruns and unexpected technical difficulties concerning the development of a particular airplane. In January 1970, during the Presidency of petitioner Richard M. Nixon, respondent was dismissed from his job during a departmental reorganization and reduction in force, in which his job was eliminated. Respondent complained to the Civil Service Commission, alleging that his separation represented unlawful retaliation for his congressional testimony. The Commission rejected this claim, but concluded that respondent's dismissal offended applicable regulations because it was motivated by "reasons purely personal to" respondent. Respondent thereafter filed suit for damages in Federal District Court against various Defense Department officials and White House aides allegedly responsible for his dismissal. An amended complaint later named petitioner as a defendant. After earlier judicial rulings and extensive pretrial discovery, only three defendants were involved: petitioner and two White House aides (petitioners in Harlow v. Fitzgerald, post, p. 800). Denying the defendants' motion for summary judgment, the court held that respondent had stated triable causes of action under two federal statutes and the First Amendment, and that petitioner was not entitled to claim absolute Presidential immunity. Petitioner took a collateral appeal of the immunity decision to the Court of Appeals, which dismissed summarily.

Held:

1. This Court has jurisdiction to determine the immunity question. Pp. 741-744.

(a) The case was "in" the Court of Appeals for purposes of 28 U.S.C. 1254, which authorizes this Court's review of "[c]ases in" the courts of appeals. The Court of Appeals here dismissed the appeal for lack of jurisdiction. However, petitioner's appeal to the Court of Appeals falls within the "collateral order" doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, as raising a "serious

[Page 457 U.S. 731, 732]

and unsettled question" of law. Although the Court of Appeals had previously ruled in another case that the President was not entitled to absolute immunity, this Court had never so held. Pp. 741-743.

(b) Nor was the controversy mooted by an agreement to liquidate damages entered into between the parties after the petition for certiorari was filed and respondent had entered his opposition. Under the terms of the agreement, petitioner paid respondent $142,000; respondent agreed to accept liquidated damages of $28,000 if this Court ruled that petitioner was not entitled to absolute immunity; and no further payments would be made if the decision upheld petitioner's immunity claim. The limited agreement left both parties with a considerable financial stake in the resolution of the question presented in this Court. Cf. Havens Realty Corp. v. Coleman, 455 U.S. 363. Pp. 743-744.

2. Petitioner, as a former President of the United States, is entitled to absolute immunity from damages liability predicated on his official acts. Pp. 744-758.

(a) Although there is no blanket recognition of absolute immunity for all federal executive officials from liability for civil damages resulting from constitutional violations, certain officials - such as judges and prosecutors - because of the special nature of their responsibilities, require absolute exemption from liability. Cf. Butz v. Economou, 438 U.S. 478. Determination of the immunity of particular officials is guided by the Constitution, federal statutes, history, and public policy. Pp. 744-748.

(b) The President's absolute immunity is a functionally mandated incident of his unique office, rooted in the constitutional tradition of the separation of powers and supported by the Nation's history. Because of the singular importance of the President's duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government. While the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President, a court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch. The exercise of jurisdiction is not warranted in the case of merely private suits for damages based on a President's official acts. Pp. 748-754.

(c) The President's absolute immunity extends to all acts within the "outer perimeter" of his duties of office. Pp. 755-757.

(d) A rule of absolute immunity for the President does not leave the Nation without sufficient protection against his misconduct. There remains the constitutional remedy of impeachment, as well as the deterrent effects of constant scrutiny by the press and vigilant oversight by Congress. Other incentives to avoid misconduct may include

[Page 457 U.S. 731, 733]

a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a President's traditional concern for his historical stature. Pp. 757-758.

Reversed and remanded.

POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. BURGER, C. J., filed a concurring opinion, post, p. 758. WHITE, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 764. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 797.

Herbert J. Miller, Jr., argued the cause for petitioner. With him on the briefs was R. Stan Mortenson.

John E. Nolan, Jr., argued the cause for respondent. With him on the brief were Samuel T. Perkins and Arthur B. Spitzer.*

[Footnote *] Louis Alan Clark filed a brief for the Government Accountability Project of the Institute for Policy Studies as amicus curiae urging affirmance.

Briefs of amici curiae were filed by Solicitor General Lee for the United States; by Roger J. Marzulla and William H. Mellor III for the Mountain States Legal Foundation; by John C. Armor and H. Richard Mayberry for the National Taxpayers Legal Fund, Inc.; and by Thomas J. Madden for Senator Orrin G. Hatch et al.

JUSTICE POWELL delivered the opinion of the Court.

The plaintiff in this lawsuit seeks relief in civil damages from a former President of the United States. The claim rests on actions allegedly taken in the former President's official capacity during his tenure in office. The issue before us is the scope of the immunity possessed by the President of the United States.

I

In January 1970 the respondent A. Ernest Fitzgerald lost his job as a management analyst with the Department of the Air Force. Fitzgerald's dismissal occurred in the context of a departmental reorganization and reduction in force, in

[Page 457 U.S. 731, 734]

which his job was eliminated. In announcing the reorganization, the Air Force characterized the action as taken to promote economy and efficiency in the Armed Forces.

Respondent's discharge attracted unusual attention in Congress and in the press. Fitzgerald had attained national prominence approximately one year earlier, during the waning months of the Presidency of Lyndon B. Johnson. On November 13, 1968, Fitzgerald appeared before the Subcommittee on Economy in Government of the Joint Economic Committee of the United States Congress. To the evident embarrassment of his superiors in the Department of Defense, Fitzgerald testified that cost-overruns on the C-5A transport plane could approximate $2 billion.[Footnote 1] He also revealed that unexpected technical difficulties had arisen during the development of the aircraft.

Concerned that Fitzgerald might have suffered retaliation for his congressional testimony, the Subcommittee on Economy in Government convened public hearings on Fitzgerald's dismissal.[Footnote 2] The press reported those hearings prominently,

[Page 457 U.S. 731, 735]

as it had the earlier announcement that his job was being eliminated by the Department of Defense. At a news conference on December 8, 1969, President Richard Nixon was queried about Fitzgerald's impending separation from Government service.[Footnote 3] The President responded by promising to look into the matter.[Footnote 4] Shortly after the news conference the petitioner asked White House Chief of Staff H. R. Haldeman to arrange for Fitzgerald's assignment to another job within the administration.[Footnote 5] It also appears that the President suggested to Budget Director Robert Mayo that Fitzgerald might be offered a position in the Bureau of the Budget.[Footnote 6]

Fitzgerald's proposed reassignment encountered resistance within the administration.[Footnote 7] In an internal memorandum of January 20, 1970, White House aide Alexander Butterfield reported to Haldeman that "`Fitzgerald is no doubt a top-notch cost expert, but he must be given very low

[Page 457 U.S. 731, 736]

marks in loyalty; and after all, loyalty is the name of the game.'"[Footnote 8] Butterfield therefore recommended that "`[w]e should let him bleed, for a while at least.'"[Footnote 9] There is no evidence of White House efforts to reemploy Fitzgerald subsequent to the Butterfield memorandum.

Absent any offer of alternative federal employment, Fitzgerald complained to the Civil Service Commission. In a letter of January 20, 1970, he alleged that his separation represented unlawful retaliation for his truthful testimony before a congressional Committee.[Footnote 10] The Commission convened a closed hearing on Fitzgerald's allegations on May 4, 1971. Fitzgerald, however, preferred to present his grievances in public. After he had brought suit and won an injunction, Fitzgerald v. Hampton, 152 U.S. App. D.C. 1, 467 F.2d 755 (1972), public hearings commenced on January 26, 1973. The hearings again generated publicity, much of it devoted to the testimony of Air Force Secretary Robert Seamans. Although he denied that Fitzgerald had lost his position in retaliation for congressional testimony, Seamans testified that he had received "some advice" from the White House before

[Page 457 U.S. 731, 737]

Fitzgerald's job was abolished.[Footnote 11] But the Secretary declined to be more specific. He responded to several questions by invoking "executive privilege."[Footnote 12]

At a news conference on January 31, 1973, the President was asked about Mr. Seamans' testimony. Mr. Nixon took the opportunity to assume personal responsibility for Fitzgerald's dismissal:

"I was totally aware that Mr. Fitzgerald would be fired or discharged or asked to resign. I approved it and Mr. Seamans must have been talking to someone who had discussed the matter with me. No, this was not a case of some person down the line deciding he should go. It was a decision that was submitted to me. I made it and I stick by it."[Footnote 13]

A day later, however, the White House press office issued a retraction of the President's statement. According to a press spokesman, the President had confused Fitzgerald with another former executive employee. On behalf of the President, the spokesman asserted that Mr. Nixon had not had "put before him the decision regarding Mr. Fitzgerald."[Footnote 14]

After hearing over 4,000 pages of testimony, the Chief Examiner for the Civil Service Commission issued his decision

[Page 457 U.S. 731, 738]

in the Fitzgerald case on September 18, 1973. Decision on the Appeal of A. Ernest Fitzgerald, as reprinted in App. 60a. The Examiner held that Fitzgerald's dismissal had offended applicable civil service regulations. Id., at 86a-87a.[Footnote 15] The Examiner based this conclusion on a finding that the departmental reorganization in which Fitzgerald lost his job, though purportedly implemented as an economy measure, was in fact motivated by "reasons purely personal to" respondent. Id., at 86a. As this was an impermissible basis for a reduction in force,[Footnote 16] the Examiner recommended Fitzgerald's reappointment to his old position or to a job of comparable authority.[Footnote 17]

[Page 457 U.S. 731, 739]

The Examiner, however, explicitly distinguished this narrow conclusion from a suggested finding that Fitzgerald had suffered retaliation for his testimony to Congress. As found by the Commission, "the evidence of record does not support [Fitzgerald's] allegation that his position was abolished and that he was separated . . . in retaliation for his having revealed the C-5A cost overrun in testimony before the Proxmire Committee on November 13, 1968." Id., at 81a.

Following the Commission's decision, Fitzgerald filed a suit for damages in the United States District Court. In it he raised essentially the same claims presented to the Civil Service Commission.[Footnote 18] As defendants he named eight officials of the Defense Department, White House aide Alexander Butterfield, and "one or More" unnamed "White House Aides" styled only as "John Does."

The District Court dismissed the action under the District of Columbia's 3-year statute of limitations, Fitzgerald v. Seamans, 384 F. Supp. 688 (DC 1974), and the Court of Appeals affirmed as to all but one defendant, White House aide Alexander Butterfield, Fitzgerald v. Seamans, 180 U.S. App. D.C. 75, 553 F.2d 220 (1977). The Court of Appeals reasoned that Fitzgerald had no reason to suspect White House involvement in his dismissal at least until 1973. In that year, reasonable grounds for suspicion had arisen, most notably through publication of the internal White House memorandum in which Butterfield had recommended that Fitzgerald at least should be made to "bleed for a while" before being offered another job in the administration. Id., at 80, 84, 553 F.2d, at 225, 229. Holding that concealment of illegal activity

[Page 457 U.S. 731, 740]

would toll the statute of limitations, the Court of Appeals remanded the action against Butterfield for further proceedings in the District Court.

Following the remand and extensive discovery thereafter, Fitzgerald filed a second amended complaint in the District Court on July 5, 1978. It was in this amended complaint - more than eight years after he had complained of his discharge to the Civil Service Commission - that Fitzgerald first named the petitioner Nixon as a party defendant.[Footnote 19] Also included as defendants were White House aide Bryce Harlow and other officials of the Nixon administration. Additional discovery ensued. By March 1980, only three defendants remained: the petitioner Richard Nixon and White House aides Harlow and Butterfield. Denying a motion for summary judgment, the District Court ruled that the action must proceed to trial. Its order of March 26 held that Fitzgerald had stated triable causes of action under two federal statutes and the First Amendment to the Constitution.[Footnote 20] The court also

[Page 457 U.S. 731, 741]

ruled that petitioner was not entitled to claim absolute Presidential immunity.

Petitioner took a collateral appeal of the immunity decision to the Court of Appeals for the District of Columbia Circuit. The Court of Appeals dismissed summarily. It apparently did so on the ground that its recent decision in Halperin v. Kissinger, 196 U.S. App. D.C. 285, 606 F.2d 1192 (1979), aff'd in pertinent part by an equally divided Court, 452 U.S. 713 (1981), had rejected this claimed immunity defense.

As this Court has not ruled on the scope of immunity available to a President of the United States, we granted certiorari to decide this important issue. 452 U.S. 959 (1981).

II

Before addressing the merits of this case, we must consider two challenges to our jurisdiction. In his opposition to the petition for certiorari, respondent argued that this Court is without jurisdiction to review the nonfinal order in which the District Court rejected petitioner's claim to absolute immunity.[Footnote 21] We also must consider an argument that an agreement between the parties has mooted the controversy.

A

Petitioner invokes the jurisdiction of this Court under 28 U.S.C. 1254, a statute that invests us with authority to review "[c]ases in" the courts of appeals.[Footnote 22] When the petitioner

[Page 457 U.S. 731, 742]

in this case sought review of an interlocutory order denying his claim to absolute immunity, the Court of Appeals dismissed the appeal for lack of jurisdiction. Emphasizing the "jurisdictional" basis for the Court of Appeals' decision, respondent argued that the District Court's order was not an appealable "case" properly "in" the Court of Appeals within the meaning of 1254. We do not agree.

Under the "collateral order" doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), a small class of interlocutory orders are immediately appealable to the courts of appeals. As defined by Cohen, this class embraces orders that "conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and [are] effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978); see Cohen, supra, at 546-547. As an additional requirement, Cohen established that a collateral appeal of an interlocutory order must "presen[t] a serious and unsettled question." 337 U.S., at 547. At least twice before this Court has held that orders denying claims of absolute immunity are appealable under the Cohen criteria. See Helstoski v. Meanor, (1979) (claim of immunity under the Speech and Debate Clause); Abney v. United States, 431 U.S. 651 (1977) (claim of immunity under Double Jeopardy Clause). In previous cases the Court of Appeals for the District of Columbia Circuit also has treated orders denying absolute immunity as appealable under Cohen. See Briggs v. Goodwin, 186 U.S. App. D.C. 179, 227-229, 569 F.2d 10, 58-60 (1977) (Wilkey, J., dissenting on the appealability issue); McSurely v. McClellan, 172 U.S. App. D.C. 364, 372, 521 F.2d 1024, 1032 (1975), aff'd in pertinent part en banc, 180 U.S. App. D.C. 101, 107-108, n. 18, 553 F.2d 1277, 1283-1284, n. 18 (1976), cert. dism'd sub nom. McAdams v. McSurely, 438 U.S. 189 (1978).

In "dismissing" the appeal in this case, the Court of Appeals appears to have reasoned that petitioner's appeal lay

[Page 457 U.S. 731, 743]

outside the Cohen doctrine because it raised no "serious and unsettled question" of law. This argument was pressed by the respondent, who asked the Court of Appeals to dismiss on the basis of that court's "controlling" decision in Halperin v. Kissinger, supra.

Under the circumstances of this case, we cannot agree that petitioner's interlocutory appeal failed to raise a "serious and unsettled" question. Although the Court of Appeals had ruled in Halperin v. Kissinger that the President was not entitled to absolute immunity, this Court never had so held. And a petition for certiorari in Halperin was pending in this Court at the time petitioner's appeal was dismissed. In light of the special solicitude due to claims alleging a threatened breach of essential Presidential prerogatives under the separation of powers, see United States v. Nixon, 418 U.S. 683, 691-692 (1974), we conclude that petitioner did present a "serious and unsettled" and therefore appealable question to the Court of Appeals. It follows that the case was "in" the Court of Appeals under 1254 and properly within our certiorari jurisdiction.[Footnote 23]

B

Shortly after petitioner had filed his petition for certiorari in this Court and respondent had entered his opposition, the parties reached an agreement to liquidate damages.[Footnote 24] Under

[Page 457 U.S. 731, 744]

its terms the petitioner Nixon paid the respondent Fitzgerald a sum of $142,000. In consideration, Fitzgerald agreed to accept liquidated damages of $28,000 in the event of a ruling by this Court that petitioner was not entitled to absolute immunity. In case of a decision upholding petitioner's immunity claim, no further payments would be made.

The limited agreement between the parties left both petitioner and respondent with a considerable financial stake in the resolution of the question presented in this Court. As we recently concluded in a case involving a similar contract: "Given respondents' continued active pursuit of monetary relief, this case remains `definite and concrete, touching the legal relations of parties having adverse legal interests.'" Havens Realty Corp. v. Coleman, 455 U.S. 363, 371 (1982), quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241 (1937).

III

A

This Court consistently has recognized that government officials are entitled to some form of immunity from suits for civil damages. In Spalding v. Vilas, (1896), the Court considered the immunity available to the Postmaster General in a suit for damages based upon his official acts. Drawing upon principles of immunity developed in English cases at common law, the Court concluded that "[t]he interests of the people" required a grant of absolute immunity to public officers. Id., at 498. In the absence of immunity, the Court reasoned, executive officials would hesitate to exercise

[Page 457 U.S. 731, 745]

their discretion in a way "injuriously affect[ing] the claims of particular individuals," id., at 499, even when the public interest required bold and unhesitating action. Considerations of "public policy and convenience" therefore compelled a judicial recognition of immunity from suits arising from official acts.

"In exercising the functions of his office, the head of an Executive Department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government, if he were subjected to any such restraint." Id., at 498.

Decisions subsequent to Spalding have extended the defense of immunity to actions besides those at common law. In Tenney v. Brandhove, 341 U.S. 367 (1951), the Court considered whether the passage of 42 U.S.C. 1983, which made no express provision for immunity for any official, had abrogated the privilege accorded to state legislators at common law. Tenney held that it had not. Examining 1983 in light of the "presuppositions of our political history" and our heritage of legislative freedom, the Court found it incredible "that Congress . . . would impinge on a tradition so well grounded in history and reason" without some indication of intent more explicit than the general language of the statute. Id., at 376. Similarly, the decision in Pierson v. Ray, 386 U.S. 547 (1967), involving a 1983 suit against a state judge, recognized the continued validity of the absolute immunity of judges for acts within the judicial role. This was a doctrine "`not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions

[Page 457 U.S. 731, 746]

with independence and without fear of consequences.'" Id., at 554, quoting Scott v. Stansfield, L. R. 3 Ex. 220, 223 (1868). See Bradley v. Fisher, 13 Wall. 335 (1872). The Court in Pierson also held that police officers are entitled to a qualified immunity protecting them from suit when their official acts are performed in "good faith." 386 U.S., at 557.

In Scheuer v. Rhodes, 416 U.S. 232 (1974), the Court considered the immunity available to state executive officials in a 1983 suit alleging the violation of constitutional rights. In that case we rejected the officials' claim to absolute immunity under the doctrine of Spalding v. Vilas, finding instead that state executive officials possessed a "good faith" immunity from 1983 suits alleging constitutional violations. Balancing the purposes of 1983 against the imperatives of public policy, the Court held that "in varying scope, a qualified immunity is available to officers of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based." 416 U.S., at 247.

As construed by subsequent cases, Scheuer established a two-tiered division of immunity defenses in 1983 suits. To most executive officers Scheuer accorded qualified immunity. For them the scope of the defense varied in proportion to the nature of their official functions and the range of decisions that conceivably might be taken in "good faith." This "functional" approach also defined a second tier, however, at which the especially sensitive duties of certain officials - notably judges and prosecutors - required the continued recognition of absolute immunity. See, e. g., Imbler v. Pachtman, 424 U.S. 409 (1976) (state prosecutors possess absolute immunity with respect to the initiation and pursuit of prosecutions); Stump v. Sparkman, 435 U.S. 349 (1978) (state judge possesses absolute immunity for all judicial acts).

This approach was reviewed in detail in Butz v. Economou,

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438 U.S. 478 (1978), when we considered for the first time the kind of immunity possessed by federal executive officials who are sued for constitutional violations.[Footnote 25] In Butz the Court rejected an argument, based on decisions involving federal officials charged with common-law torts, that all high federal officials have a right to absolute immunity from constitutional damages actions. Concluding that a blanket recognition of absolute immunity would be anomalous in light of the qualified immunity standard applied to state executive officials, id., at 504, we held that federal officials generally have the same qualified immunity possessed by state officials in cases under 1983. In so doing we reaffirmed our holdings that some officials, notably judges and prosecutors, "because of the special nature of their responsibilities," id., at 511, "require a full exemption from liability." Id., at 508. In Butz itself we upheld a claim of absolute immunity for administrative officials engaged in functions analogous to those of judges and prosecutors. Ibid. We also left open the question whether other federal officials could show that "public policy requires an exemption of that scope." Id., at 506.

B

Our decisions concerning the immunity of government officials from civil damages liability have been guided by the Constitution, federal statutes, and history. Additionally, at least in the absence of explicit constitutional or congressional guidance, our immunity decisions have been informed by the common law. See Butz v. Economou, supra, at 508; Imbler v. Pachtman, supra, at 421. This Court necessarily also has weighed concerns of public policy, especially as illuminated

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by our history and the structure of our government. See, e. g., Butz v. Economou, supra, at 508; Imbler v. Pachtman, supra, at 421; Spalding v. Vilas, 161 U.S., at 498.[Footnote 26]

This case now presents the claim that the President of the United States is shielded by absolute immunity from civil damages liability. 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 common law, any historical analysis must draw its evidence primarily from our constitutional heritage and structure. Historical inquiry thus merges almost at its inception 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.

IV

Here a former President asserts his immunity from civil damages claims of two kinds. He stands named as a defendant in a direct action under the Constitution and in two statutory actions under federal laws of general applicability. In neither case has Congress taken express legislative action to subject the President to civil liability for his official acts.[Footnote 27]

[Page 457 U.S. 731, 749]

Applying the principles of our cases to claims of this kind, we hold that petitioner, as a former President of the United States, is entitled to absolute immunity from damages liability predicated on his official acts. We consider this 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. Justice Story's analysis remains persuasive:

"There are . . . incidental powers, belonging to the executive department, which are necessarily implied from the nature of the functions, which are confided to it. Among these, must necessarily be included the power to perform them . . . . The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office; and for this purpose his person must be deemed, in civil cases at least, to possess an official inviolability." 3 J. Story, Commentaries on the Constitution of the United States 1563, pp. 418-419 (1st ed. 1833).

A

The President occupies a unique position in the constitutional scheme. Article II, 1, of the Constitution provides that "[t]he executive Power shall be vested in a President of

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the United States . . . ." This grant of authority establishes the President as the chief constitutional officer of the Executive Branch, entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity. These include the enforcement of federal law - it is the President who is charged constitutionally to "take Care that the Laws be faithfully executed";[Footnote 28] the conduct of foreign affairs - a realm in which the Court has recognized that "[i]t would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret";[Footnote 29] and management of the Executive Branch - a task for which "imperative reasons requir[e] an unrestricted power [in the President] to remove the most important of his subordinates in their most important duties."[Footnote 30]

In arguing that the President is entitled only to qualified immunity, the respondent relies on cases in which we have recognized immunity of this scope for governors and cabinet officers. E. g., Butz v. Economou, 438 U.S. 478 (1978); Scheuer v. Rhodes, 416 U.S. 232 (1974). We find these cases to be inapposite. The President's unique status under the Constitution distinguishes him from other executive officials.[Footnote 31]

[Page 457 U.S. 731, 751]

Because of the singular importance of the President's duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government. As is the case with prosecutors and judges -

[Page 457 U.S. 731, 752]

for whom absolute immunity now is established - a President must concern himself with matters likely to "arouse the most intense feelings." Pierson v. Ray, 386 U.S., at 554. Yet, as our decisions have recognized, it is in precisely such cases that there exists the greatest public interest in providing an official "the maximum ability to deal fearlessly and impartially with" the duties of his office. Ferri v. Ackerman, 444 U.S. 193, 203 (1979). This concern is compelling where the officeholder must make the most sensitive and far-reaching decisions entrusted to any official under our constitutional system.[Footnote 32] Nor can the sheer prominence of the President's

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office be ignored. In view of the visibility of his office and the effect of his actions on countless people, the President would be an easily identifiable target for suits for civil damages.[Footnote 33] Cognizance of this personal vulnerability frequently could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.

B

Courts traditionally have recognized the President's constitutional responsibilities and status as factors counseling judicial deference and restraint.[Footnote 34] For example, while courts generally have looked to the common law to determine the scope of an official's evidentiary privilege,[Footnote 35] we have recognized that the Presidential privilege is "rooted in the separation of powers under the Constitution." United States v. Nixon, 418 U.S., at 708. It is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction

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over the President of the United States. See, e. g., United States v. Nixon, supra; United States v. Burr, 25 F. Cas. 187, 191, 196 (No. 14,694) (CC Va. 1807); cf. Youngstown Sheet & Tube Co. v. Sawyer, (1952).[Footnote 36] But our cases also have established that a court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch. See Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977); United States v. Nixon, supra, at 703-713. When judicial action is needed to serve broad public interests - as when the Court acts, not in derogation of the separation of powers, but to maintain their proper balance, cf. Youngstown Sheet & Tube Co. v. Sawyer, supra, or to vindicate the public interest in an ongoing criminal prosecution, see United States v. Nixon, supra - the exercise of jurisdiction has been held warranted. In the case of this merely private suit for damages based on a President's official acts, we hold it is not.[Footnote 37]

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C

In defining the scope of an official's absolute privilege, this Court has recognized that the sphere of protected action must be related closely to the immunity's justifying purposes. Frequently our decisions have held that an official's absolute immunity should extend only to acts in performance of particular functions of his office. See Butz v. Economou, 438 U.S., at 508-517; cf. Imbler v. Pachtman, 424 U.S., at 430-431. But the Court also has refused to draw functional lines finer than history and reason would support. See, e. g., Spalding v. Vilas, 161 U.S., at 498 (privilege extends to all matters "committed by law to [an official's] control or supervision"); Barr v. Matteo, 360 U.S. 564, 575 (1959) (fact "that the action here taken was within the outer perimeter of petitioner's line of duty is enough to render the privilege applicable

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. . ."); Stump v. Sparkman, 435 U.S., at 363, and n. 12 (judicial privilege applies even to acts occurring outside "the normal attributes of a judicial proceeding"). In view of the special nature of the President's constitutional office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the "outer perimeter" of his official responsibility.

Under the Constitution and laws of the United States the President has discretionary responsibilities in a broad variety of areas, many of them highly sensitive. In many cases it would be difficult to determine which of the President's innumerable "functions" encompassed a particular action. In this case, for example, respondent argues that he was dismissed in retaliation for his testimony to Congress - a violation of 5 U.S.C. 7211 (1976 ed., Supp. IV) and 18 U.S.C. 1505. The Air Force, however, has claimed that the underlying reorganization was undertaken to promote efficiency. Assuming that petitioner Nixon ordered the reorganization in which respondent lost his job, an inquiry into the President's motives could not be avoided under the kind of "functional" theory asserted both by respondent and the dissent. Inquiries of this kind could be highly intrusive.

Here respondent argues that petitioner Nixon would have acted outside the outer perimeter of his duties by ordering the discharge of an employee who was lawfully entitled to retain his job in the absence of "`such cause as will promote the efficiency of the service.'" Brief for Respondent 39, citing 5 U.S.C. 7512(a). Because Congress has granted this legislative protection, respondent argues, no federal official could, within the outer perimeter of his duties of office, cause Fitzgerald to be dismissed without satisfying this standard in prescribed statutory proceedings.

This construction would subject the President to trial on virtually every allegation that an action was unlawful, or was taken for a forbidden purpose. Adoption of this construction thus would deprive absolute immunity of its intended effect.

[Page 457 U.S. 731, 757]

It clearly is within the President's constitutional and statutory authority to prescribe the manner in which the Secretary will conduct the business of the Air Force. See 10 U.S.C. 8012(b). Because this mandate of office must include the authority to prescribe reorganizations and reductions in force, we conclude that petitioner's alleged wrongful acts lay well within the outer perimeter of his authority.

V

A rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive.[Footnote 38] There remains the constitutional remedy of impeachment.[Footnote 39] In addition, there are formal and informal checks on Presidential action that do not apply with equal force to other executive officials. The President is subjected to constant scrutiny by the press. Vigilant oversight by Congress also may serve to deter Presidential abuses of office, as well as to make credible the threat of impeachment.[Footnote 40] Other incentives to avoid misconduct may include a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a President's traditional concern for his historical stature.

[Page 457 U.S. 731, 758]

The existence of alternative remedies and deterrents establishes that absolute immunity will not place the President "above the law."[Footnote 41] For the President, as for judges and prosecutors, absolute immunity merely precludes a particular private remedy for alleged misconduct in order to advance compelling public ends.

VI

For the reasons stated in this opinion, the decision of the Court of Appeals is reversed, and the case is remanded for action consistent with this opinion.

So ordered.

FootnotesFootnote 1 See Economics of Military Procurement: Hearings before the Subcommittee on Economy in Government of the Joint Economic Committee, 90th Cong., 2d Sess., pt. I, pp. 199-201 (1968-1969). It is not disputed that officials in the Department of Defense were both embarrassed and angered by Fitzgerald's testimony. Within less than two months of respondent's congressional appearance, staff had prepared a memorandum for the outgoing Secretary of the Air Force, Harold Brown, listing three ways in which Fitzgerald might be removed from his position. See App. 209a-211a (memorandum of John Lang to Harold Brown, Jan. 6, 1969). Among these was a "reduction in force" - the means by which Fitzgerald ultimately was removed by Brown's successor in office under the new Nixon administration. The reduction in force was announced publicly on November 4, 1969, and Fitzgerald accordingly was separated from the Air Force upon the elimination of his job on January 5, 1970.

Footnote 2 See The Dismissal of A. Ernest Fitzgerald by the Department of Defense: Hearings before the Subcommittee on Economy in Government of the Joint Economic Committee, 91st Cong., 1st Sess. (1969). Some 60 Members of Congress also signed a letter to the President protesting the

[Page 457 U.S. 731, 735]

"firing of this dedicated public servant" as a "punitive action." Id., at 115-116.

Footnote 3 A briefing memorandum on the Fitzgerald matter had been prepared by White House staff in anticipation of a possible inquiry at the forthcoming press conference. Authored by aide Patrick Buchanan, it advanced the view that the Air Force was "firing . . . a good public servant." App. 269a (memorandum of Patrick Buchanan to Richard Nixon, Dec. 5, 1969). The memorandum suggested that the President order Fitzgerald's retention by the Defense Department.

Footnote 4 Id., at 228a.

Footnote 5 See id., at 109a-112a (deposition of H. R. Haldeman); id., at 137a-141a (deposition of petitioner Richard Nixon). Haldeman's deposed testimony was based on his handwritten notes of December 12, 1969. Id., at 275a.

Footnote 6 See id., at 126a (deposition of Robert Mayo); id., at 141a (deposition of Richard Nixon).

Footnote 7 Both Mayo and his deputy, James Schlesinger, appear to have resisted at least partly due to a suspicion that Fitzgerald lacked institutional loyalty to executive policies and that he spoke too freely in communications with friends on Capitol Hill. Both also stated that high-level positions were presently unavailable within the Bureau of the Budget. See id., at 126a (deposition of Robert Mayo); id., at 146a-147a (deposition of James Schlesinger).

Footnote 8 Quoted in Decision on the Appeal of A. Ernest Fitzgerald (Sept. 18, 1973) (CSC Decision), reprinted in App. 60a, 84a. (Page citations to the CSC Decision refer to the cited page in the Joint Appendix.)

Footnote 9 Id., at 85a. The memorandum added that "`[w]e owe "first choice on Fitzgerald" to [Senator] Proxmire and others who tried so hard to make him a hero [for exposing the cost overruns].'" Suspicion of Fitzgerald's assumed loyalty toward Senator Proxmire was widely shared in the White House and in the Defense Department. According to the CSC Decision, supra:

"While Mr. Fitzgerald has denied that he was `Senator Proxmier's [sic] boy in the Air Force', and he may honestly believe it, we find this statement difficult to accept. It is evident that the top officials in the Air Force, without specifically saying so, considered him to be just that. . . . We also note that upon leaving the Air Force Mr. Fitzgerald was employed as a consultant by the Proxmire Committee and that Senator Proxmire appeared at the Commission hearing as a character witness for [Fitzgerald]." App. 83a.

Footnote 10 Id., at 61a.

Footnote 11 See id., at 83a-84a.

Footnote 12 See ibid.

Footnote 13 Id., at 185a. A few hours after the press conference, Mr. Nixon repeated privately to Presidential aide Charles Colson that he had ordered Fitzgerald's firing. Id., at 214a-215a (recorded conversation of Jan. 31, 1973).

Footnote 14 Id., at 196a (transcription of statement of White House press secretary Ronald Ziegler, Feb. 1, 1973). In a conversation with aide John Ehrlichman, following his conversation with Charles Colson, see n. 13, supra, the President again had claimed responsibility for Fitzgerald's dismissal. When Ehrlichman corrected him on several details, however, the President concluded that he was "thinkin' of another case." Id., at 218a (recorded conversation of Jan. 31, 1973). See id., at 220a. It was after this conversation that the retraction was ordered.

Footnote 15 Fitzgerald's position in the Air Force was in the "excepted service" and therefore not covered by civil service rules and regulations for the competitive service. Fitzgerald v. Hampton, 152 U.S. App. D.C. 1, 4, 467 F.2d 755, 758 (1972); see CSC Decision, App. 63a-64a. In Hampton, however, the court held that Fitzgerald's employment nonetheless was under "legislative protection," since he was a "preference eligible" veteran entitled to various statutory protections under the Veterans' Preference Act. See 152 U.S. App. D.C., at 4-14, 467 F.2d, at 758-768. Among these were the benefits of the reduction-in-force procedures established by civil service regulation. See id., at 4, 467 F.2d, at 758.

Footnote 16 The Examiner found that Fitzgerald in fact was dismissed because of his superiors' dissatisfaction with his job performance. App. 86a-87a. Their attitude was evidenced by "statements that he was not a `team player' and `not on the Air Force team.'" Id., at 83a. Without deciding whether this would have been an adequate basis for an "adverse action" against Fitzgerald as an "inadequate or unsatisfactory employee," id., at 86a, the Examiner held that the Commission's adverse action procedures, current version codified at 5 CFR pt. 752 (1982), implicitly forbade the Air Force to employ a "reduction in force" as a means of dismissing respondent for reasons "personal to" him. App. 87a.

Footnote 17 The Commission also ordered that Fitzgerald should receive backpay. Id., at 87a-88a. Following the Commission's order, respondent was offered a new position with the Defense Department, but not one that he regarded as equivalent to his former employment. Fitzgerald accordingly filed an enforcement action in the District Court. This litigation ultimately culminated in a settlement agreement. Under its terms the United States Air Force agreed to reassign Fitzgerald to his former position as Management Systems Deputy to the Assistant Secretary of the Air

[Page 457 U.S. 731, 739]

Force, effective June 21, 1982. See Settlement Agreement in Fitzgerald v. Hampton et al., Civ. No. 76-1486 (DC June 15, 1982).

Footnote 18 The complaint alleged a continuing conspiracy to deprive him of his job, to deny him reemployment, and to besmirch his reputation. Fitzgerald alleged that the conspiracy had continued through the Commission hearings and remained in existence at the initiation of the lawsuit. See Fitzgerald v. Seamans, 384 F. Supp. 688, 690-692 (DC 1974).

Footnote 19 The general allegations of the complaint remained essentially unchanged. In averring Nixon's participation in the alleged conspiracy against him, the complaint quoted petitioner's press conference statement that he was "totally aware" of and in fact "approved" Fitzgerald's dismissal. Second Amended Complaint in Fitzgerald v. Butterfield, Civ. No. 74-78 (DC), p. 6.

Footnote 20 See App. to Pet. for Cert. 1a-2a. The District Court held that respondent was entitled to "infer" a cause of action under 5 U.S.C. 7211 (1976 ed., Supp. IV) and 18 U.S.C. 1505. Neither expressly confers a private right to sue for relief in damages. The first, 5 U.S.C. 7211 (1976 ed., Supp. IV), provides generally that "[t]he right of employees . . . to . . . furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied." The second, 18 U.S.C. 1505, is a criminal statute making it a crime to obstruct congressional testimony. The correctness of the decision that a cause of action could be "implied" under these statutes is not currently before us. As explained infra, this case is here under the "collateral order" doctrine, for review of the District Court's denial of petitioner's motion to dismiss on the ground that he enjoyed absolute immunity from civil suit. The District Court also held that respondent had stated a claim under the common law

[Page 457 U.S. 731, 741]

of the District of Columbia, but respondent subsequently abandoned his common-law cause of action. See Supplemental Brief in Opposition 2.

Footnote 21 See Brief in Opposition 2. Although Fitzgerald has not continued to urge this argument, the challenge was jurisdictional, and we therefore address it.

Footnote 22 The statute provides in pertinent part:

"Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods:

"(1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree . . . ."

Footnote 23 There can be no serious doubt concerning our power to review a court of appeals' decision to dismiss for lack of jurisdiction - a power we have exercised routinely. See, e. g., Gardner v. Westinghouse Broadcasting Co., (1978). If we lacked authority to do so, decisions to dismiss for want of jurisdiction would be insulated entirely from review by this Court.

Nor, now that we have taken jurisdiction of the case, need we remand to the Court of Appeals for a decision on the merits. The immunity question is a pure issue of law, appropriate for our immediate resolution. Especially in light of the Court of Appeals' now-binding decision of the issue presented, concerns of judicial economy fully warrant our decision of the important question presented.

Footnote 24 Respondent filed a copy of this agreement with the Clerk of this Court on August 24, 1981, as an appendix to his brief in opposition to a motion of

[Page 457 U.S. 731, 744]

Morton, Ina, David, Mark, and Gary Halperin to intervene and for other relief. On June 10, 1980, prior to the Court's action on the petition for certiorari, counsel to the parties had advised the Court that their clients had reached an agreement to liquidate damages, but that there remained a live controversy. Counsel did not include a copy of the agreement in their initial submission.

Footnote 25 Spalding v. Vilas, 161 U.S. 483 (1896), was distinguished on the ground that the suit against the Postmaster General had asserted a common-law - and not a constitutional - cause of action. See Butz v. Economou, 438 U.S., at 493-495.

Footnote 26 Although the Court in Butz v. Economou, supra, at 508, described the requisite inquiry as one of "public policy," the focus of inquiry more accurately may be viewed in terms of the "inherent" or "structural" assumptions of our scheme of government.

Footnote 27 In the present case we therefore are presented only with "implied" causes of action, and we need not address directly the immunity question as it would arise if Congress expressly had created a damages action against the President of the United States. This approach accords with this Court's settled policy of avoiding unnecessary decision of constitutional issues. Reviewing this case under the "collateral order" doctrine, see supra, at 742, we assume for purposes of this opinion that private causes of action may be inferred both under the First Amendment and the two statutes on which respondent relies. But it does not follow that we

[Page 457 U.S. 731, 749]

must - in considering a Bivens (Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)) remedy or interpreting a statute in light of the immunity doctrine - assume that the cause of action runs against the President of the United States. Cf. Tenney v. Brandhove, 341 U.S. 367, 376 (1951) (construing 1983 in light of the immunity doctrine, the Court could not accept "that Congress . . . would impinge on a tradition [of legislative immunity] so well grounded in history and reason by covert inclusion in the general language before us," and therefore would not address issues that would arise if Congress had undertaken to deprive state legislators of absolute immunity). Consequently, 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. We decide only this constitutional issue, which is necessary to disposition of the case before us.

Footnote 28 U.S. Const. Art. II, 3.

Footnote 29 Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948).

Footnote 30 Myers v. United States, 272 U.S. 52, 134-135 (1926).

Footnote 31 Noting that the Speech and Debate Clause provides a textual basis for congressional immunity, respondent argues that the Framers must be assumed to have rejected any similar grant of executive immunity. This argument is unpersuasive. First, a specific textual basis has not been considered a prerequisite to the recognition of immunity. No provision expressly confers judicial immunity. Yet the immunity of judges is well settled. See, e. g., Bradley v. Fisher, 13 Wall. 335 (1872); Stump v. Sparkman, (1978). Second, this Court already has established that absolute immunity may be extended to certain officials of the Executive Branch. Butz v. Economou, 438 U.S., at 511-512; see Imbler v. Pachtman, 424 U.S. 409 (1976) (extending immunity to prosecutorial

[Page 457 U.S. 731, 751]

officials within the Executive Branch). Third, there is historical evidence from which it may be inferred that the Framers assumed the President's immunity from damages liability. At the Constitutional Convention several delegates expressed concern that subjecting the President even to impeachment would impair his capacity to perform his duties of office. See 2 M. Farrand, Records of the Federal Convention of 1787, p. 64 (1911) (remarks of Gouverneur Morris); id., at 66 (remarks of Charles Pinckney). The delegates of course did agree to an Impeachment Clause. But nothing in their debates suggests an expectation that the President would be subjected to the distraction of suits by disappointed private citizens. And Senator Maclay has recorded the views of Senator Ellsworth and Vice President John Adams - both delegates to the Convention - that "the President, personally, was not the subject to any process whatever . . . . For [that] would . . . put it in the power of a common justice to exercise any authority over him and stop the whole machine of Government." Journal of William Maclay 167 (E. Maclay ed. 1890). Justice Story, writing in 1833, held it implicit in the separation of powers that the President must be permitted to discharge his duties undistracted by private lawsuits. 3 J. Story, Commentaries on the Constitution of the United States 1563, pp. 418-419 (1st ed. 1833) (quoted supra, at 749). Thomas Jefferson also argued that the President was not intended to be subject to judicial process. When Chief Justice Marshall held in United States v. Burr, 25 F. Cas. 30 (No. 14,692d) (CC Va. 1807), that a subpoena duces tecum can be issued to a President, Jefferson protested strongly, and stated his broader view of the proper relationship between the Judiciary and the President:

"The leading principle of our Constitution is the independence of the Legislature, executive and judiciary of each other, and none are more jealous of this than the judiciary. But would the executive be independent of the judiciary, if he were subject to the commands of the latter, & to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south & east to west, and withdraw him entirely from his constitutional duties? The intention of the Constitution, that each branch should be independent of the others, is further manifested by the means it has furnished to each, to protect itself from enterprises of force attempted on them by the others, and to none has it given more effectual or diversified means than to the executive." 10 The Works of Thomas Jefferson 404 n. (P. Ford ed. 1905) (quoting a letter

[Page 457 U.S. 731, 752]

from President Jefferson to a prosecutor at the Burr trial) (emphasis in the original).

See also 5 D. Malone, Jefferson and His Time: Jefferson the President 320-325 (1974).

In light of the fragmentary character of the most important materials reflecting the Framers' intent, we do think that the most compelling arguments arise from the Constitution's separation of powers and the Judiciary's historic understanding of that doctrine. See text supra. But our primary reliance on constitutional structure and judicial precedent should not be misunderstood. The best historical evidence clearly supports the Presidential immunity we have upheld. JUSTICE WHITE'S dissent cites some other materials, including ambiguous comments made at state ratifying conventions and the remarks of a single publicist. But historical evidence must be weighed as well as cited. When the weight of evidence is considered, we think we must place our reliance on the contemporary understanding of John Adams, Thomas Jefferson, and Oliver Ellsworth. Other powerful support derives from the actual history of private lawsuits against the President. Prior to the litigation explosion commencing with this Court's 1971 Bivens decision, fewer than a handful of damages actions ever were filed against the President. None appears to have proceeded to judgment on the merits.

Footnote 32 Among the most persuasive reasons supporting official immunity is the prospect that damages liability may render an official unduly cautions in the discharge of his official duties. As Judge Learned Hand wrote in Gregoire v. Biddle, 177 F.2d 579, 581 (CA2 1949), cert. denied, 339 U.S. 949 (1950), "[t]he justification for . . . [denying recovery] is that it is impossible to know whether the claim is well founded until the case has been tried, and to submit all officials, the innocent as well as the guilty, to the

[Page 457 U.S. 731, 753]

burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute . . . ."

Footnote 33 These dangers are significant even though there is no historical record of numerous suits against the President, since a right to sue federal officials for damages for constitutional violations was not even recognized until Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).

Footnote 34 This tradition can be traced far back into our constitutional history. See, e. g., Mississippi v. Johnson, 4 Wall. 475, 501 (1866) ("[W]e are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties; and that no such bill ought to be received by us"); Kendall v. United States, 12 Pet. 524, 610 (1838) ("The executive power is vested in a President; and as far as his powers are derived from the constitution, he is beyond the reach of any other department, except in the mode prescribed by the constitution through the impeaching power").

Footnote 35 See United States v. Reynolds, 345 U.S. 1, 6-7 (1953) (Secretary of the Air Force); Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 F. R. D. 318, 323-324 (DC 1966), aff'd sub nom. V. E. B. Carl Zeiss, Jena v. Clark, 128 U.S. App. D.C. 10, 384 F.2d 979, cert. denied, 389 U.S. 952 (1967) (Department of Justice officials).

Footnote 36 Although the President was not a party, the Court enjoined the Secretary of Commerce from executing a direct Presidential order. See 343 U.S., at 583.

Footnote 37 The Court has recognized before that there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions. See United States v. Gillock, 445 U.S. 360, 371-373 (1980); cf. United States v. Nixon, 418 U.S., at 711-712, and n. 19 (basing holding on special importance of evidence in a criminal trial and distinguishing civil actions as raising different questions not presented for decision). It never has been denied that absolute immunity may impose a regrettable cost on individuals whose rights have been violated. But, contrary to the suggestion of JUSTICE WHITE'S dissent, it is not true that our jurisprudence ordinarily supplies a remedy in civil damages for every legal wrong. The dissent's objections on this ground would weigh equally against absolute immunity for any official. Yet the dissent makes no attack on the absolute immunity recognized for judges and prosecutors.

Our implied-rights-of-action cases identify another area of the law in which there is not a damages remedy for every legal wrong. These cases establish that victims of statutory crimes ordinarily may not sue in federal

[Page 457 U.S. 731, 755]

court in the absence of expressed congressional intent to provide a damages remedy. See, e. g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, (1982); Middlesex County Sewerage Auth. v. National Sea Clammers Assn., 453 U.S. 1 (1981); California v. Sierra Club, 451 U.S. 287 (1981). JUSTICE WHITE does not refer to the jurisprudence of implied rights of action. Moreover, the dissent undertakes no discussion of cases in the Bivens line in which this Court has suggested that there would be no damages relief in circumstances "counseling hesitation" by the judiciary. See Bivens v. Six Unknown Fed. Narcotics Agents, supra, at 396; Carlson v. Green, 446 U.S. 14, 19 (1980) (in direct constitutional actions against officials with "independent status in our constitutional scheme . . . judicially created remedies . . . might be inappropriate").

Even the case on which JUSTICE WHITE places principal reliance, Marbury v. Madison, 1 Cranch 137 (1803), provides dubious support at best. The dissent cites Marbury for the proposition that "[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." Id., at 163. Yet Marbury does not establish that the individual's protection must come in the form of a particular remedy. Marbury, it should be remembered, lost his case in the Supreme Court. The Court turned him away with the suggestion that he should have gone elsewhere with his claim. In this case it was clear at least that Fitzgerald was entitled to seek a remedy before the Civil Service Commission - a remedy of which he availed himself. See supra, at 736-739, and n. 17.

Footnote 38 The presence of alternative remedies has played an important role in our previous decisions in the area of official immunity. E. g., Imbler v. Pachtman, 424 U.S., at 428-429 ("We emphasize that the immunity of prosecutors from liability in suits under 1983 does not leave the public powerless to deter misconduct or to punish that which occurs").

Footnote 39 The same remedy plays a central role with respect to the misconduct of federal judges, who also possess absolute immunity. See Kaufman, Chilling Judicial Independence, 88 Yale L. J. 681, 690-706 (1979). Congressmen may be removed from office by a vote of their colleagues. U.S. Const. Art. I, 5, cl. 2.

Footnote 40 Prior to petitioner Nixon's resignation from office, the House Judiciary Committee had convened impeachment hearings. See generally Report of the Committee on the Judiciary of the House of Representatives: Impeachment of Richard M. Nixon, President of the United States, H. R. Rep. No. 93-1305 (1974).

Footnote 41 The dissenting opinions argue that our decision places the President "above the law." This contention is rhetorically chilling but wholly unjustified. The remedy of impeachment demonstrates that the President remains accountable under law for his misdeeds in office. This case involves only a damages remedy. Although the President is not liable in civil damages for official misbehavior, that does not lift him "above" the law. The dissents do not suggest that a judge is "above" the law when he enters a judgment for which he cannot be held answerable in civil damages; or a prosecutor is above the law when he files an indictment; or a Congressman is above the law when he engages in legislative speech or debate. It is simply error to characterize an official as "above the law" because a particular remedy is not available against him.

CHIEF JUSTICE BURGER, concurring.

I join the Court's opinion, but I write separately to underscore that the President immunity derives from and is mandated by the constitutional doctrine of separation of powers. Indeed, it has been taken for granted for nearly two centuries.[Footnote 1] In reaching this conclusion we do well to bear in mind that the focus must not be simply on the matter of judging

[Page 457 U.S. 731, 759]

individual conduct in a fact-bound setting; rather, in those familiar terms of John Marshall, it is a Constitution we are expounding. Constitutional adjudication often bears unpalatable fruit. But the needs of a system of government sometimes must outweigh the right of individuals to collect damages.

It strains the meaning of the words used to say this places a President "above the law." United States v. Nixon, (1974). The dissents are wide of the mark to the extent that they imply that the Court today recognizes sweeping immunity for a President for all acts. The Court does no such thing. The immunity is limited to civil damages claims. Moreover, a President, like Members of Congress, judges, prosecutors, or congressional aides - all having absolute immunity - are not immune for acts outside official duties.[Footnote 2] Ante, at 753-755. Even the broad immunity of the Speech and Debate Clause has its limits.[Footnote 3]

[Page 457 U.S. 731, 760]

In his dissenting opinion, JUSTICE WHITE confuses "judicial process" in the subpoena sense with a civil damages suit. Post, at 778, n. 23. He quotes language from United States v. Nixon, supra, at 706, as though that language has some relevance to the matter of immunity from civil damages:

"[N]either the doctrine of separation of powers, nor the need for confidentiality . . . without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances." Post, at 782. (Emphasis added.)

First, it is important to remember that the context of that language is a criminal prosecution. Second, the "judicial process" referred to was, as in United States v. Burr, 25 F. Cas. 30 (No. 14,692d) (CC Va. 1807) (Marshall, C. J., sitting at trial as Circuit Justice), a subpoena to the President to produce relevant evidence in a criminal prosecution. No issue of damages immunity was involved either in Burr or United States v. Nixon. In short, the quoted language has no bearing whatever on a civil action for damages. It is one thing to say that a President must produce evidence relevant to a criminal case, as in Burr and United States v. Nixon, and quite another to say a President can be held for civil damages for dismissing a federal employee. If the dismissal is wrongful the employee can be reinstated with backpay, as was done here. See n. 5, infra.

The immunity of a President from civil suits is not simply a doctrine derived from this Court's interpretation of common law or public policy. Absolute immunity for a President for acts within the official duties of the Chief Executive is either to be found in the constitutional separation of powers or it does not exist. The Court today holds that the Constitution mandates such immunity and I agree.

The essential purpose of the separation of powers is to allow for independent functioning of each coequal branch of

[Page 457 U.S. 731, 761]

government within its assigned sphere of responsibility, free from risk of control, interference, or intimidation by other branches. United States v. Nixon, supra; Gravel v. United States, 408 U.S. 606, 617 (1972). Even prior to the adoption of our Constitution, as well as after, judicial review of legislative action was recognized in some instances as necessary to maintain the proper checks and balances. Den on the Dem. of Bayard & Wife v. Singleton, 3 N.C. 42 (1787); Cases of the Judges of the Court of Appeals, 8 Va. 135 (1788). Cf. Marbury v. Madison, 1 Cranch 137 (1803). However, the Judiciary always must be hesitant to probe into the elements of Presidential decisionmaking, just as other branches should be hesitant to probe into judicial decisionmaking. Such judicial intervention is not to be tolerated absent imperative constitutional necessity. United States v. Nixon, supra, at 709-716.4 The Court's opinion correctly observes that judicial intrusion through private damages actions improperly impinges on and hence interferes with the independence that is imperative to the functioning of the office of a President.

[Page 457 U.S. 731, 762]

Exposing a President to civil damages actions for official acts within the scope of the Executive authority would inevitably subject Presidential actions to undue judicial scrutiny as well as subject the President to harassment. The enormous range and impact of Presidential decisions - far beyond that of any one Member of Congress - inescapably means that many persons will consider themselves aggrieved by such acts. Absent absolute immunity, every person who feels aggrieved would be free to bring a suit for damages, and each suit - especially those that proceed on the merits - would involve some judicial questioning of Presidential acts, including the reasons for the decision, how it was arrived at, the information on which it was based, and who supplied the information. Such scrutiny of day-to-day decisions of the Executive Branch would be bound to occur if civil damages actions were made available to private individuals. Although the individual who claims wrongful conduct may indeed have sustained some injury, the need to prevent large-scale invasion of the Executive function by the Judiciary far outweighs the need to vindicate the private claims. We have decided that in a similar sense Members of both Houses of Congress - and their aides - must be totally free from judicial scrutiny for legislative acts; the public interest, in other words, outweighs the need for private redress of one claiming injury from legislative acts of a Member or aide of a Member.5 The Court's concern (and the even more emphatic concerns

[Page 457 U.S. 731, 763]

expressed by JUSTICE WHITE'S dissent) over "unremedied wrongs" to citizens by a President seem odd when one compares the potential for "wrongs" which thousands of congressional aides, prosecutors, and judges can theoretically inflict - with absolute immunity - on the same citizens for whom this concern is expressed. See n. 2, supra.

Judicial intervention would also inevitably inhibit the processes of Executive Branch decisionmaking and impede the functioning of the Office of the President. The need to defend damages suits would have the serious effect of diverting the attention of a President from his executive duties since defending a lawsuit today - even a lawsuit ultimately found to be frivolous - often requires significant expenditures of time and money, as many former public officials have learned to their sorrow. This very case graphically illustrates the point. When litigation processes are not tightly controlled - and often they are not - they can be and are used as mechanisms of extortion. Ultimate vindication on the merits does not repair the damage.6

I fully agree that the constitutional concept of separation of independent coequal powers dictates that a President be immune from civil damages actions based on acts within the scope of Executive authority while in office.7 Far from placing

[Page 457 U.S. 731, 764]

a President above the law, the Court's holding places a President on essentially the same footing with judges and other officials whose absolute immunity we have recognized.

Footnote 1 Presidential immunity for official acts while in office has never been seriously questioned until very recently. Ante, at 750-752, n. 31. I can find only one instance in which, prior to our decision in Bivens v. Six Unknown Fed. Narcotics Agents, (1971), a citizen sued a former President for acts committed while in office. A suit against Thomas Jefferson was dismissed for being improperly brought in Virginia, thus precluding the necessity of reaching any immunity issue. Livingston v. Jefferson, 15 F. Cas. 660 (No. 8,411) (CC Va. 1811).

Footnote 2 In their "parade of horribles" and lamentations, the dissents also wholly fail to acknowledge why the same perils they fear are not present in the absolute immunity the law has long recognized for numerous other officials. At least 75,000 public officers have absolute immunity from civil damages suits for acts within the scope of their official functions. The dissenting opinions manifest an astonishing blind side in pointing to that old reliable that "no man is above the law." The Court has had no difficulty expanding the absolute immunity of Members of Congress, and in granting derivative absolute immunity to numerous aides of Members. Gravel v. United States, 408 U.S. 606 (1972).

We have since recognized absolute immunity for judges, Stump v. Sparkman, 435 U.S. 349 (1978), and for prosecutors, Imbler v. Pachtman, 424 U.S. 409 (1976), yet the Constitution provides no hint that either judges, prosecutors, or congressional aides should be so protected. Absolute immunity for judges and prosecutors is seen to derive from the common law and public policy, which recognize the need to protect judges and prosecutors from harassment. The potential danger to the citizenry from the malice of thousands of prosecutors and judges is at once more pervasive and less open to constant, public scrutiny than the actions of a President.

Footnote 3 In United States v. Brewster, 408 U.S. 501 (1972), we held that the Speech and Debate Clause does not prohibit prosecution of a Senator for accepting a bribe designed to influence his legislative acts.

[Footnote 4] JUSTICE WHITE suggests that prior to today, Presidents, prosecutors, judges, congressional aides, and other officials "could have been held liable for the kind of claim put forward by Fitzgerald - a personnel decision allegedly made for unlawful reasons." Post, at 767, n. 2 (emphasis added). But the law does not permit a plaintiff to recite "magic" words in pleadings and have the incantation operate to make these immunities vanish. JUSTICE WHITE errs fundamentally in treating all of the above officials as if the scope of their authority were identical. The authority of a President as head of the Executive Branch of our Government - a wholly unique office - is far broader than that of any other official. As the Court notes, a President has authority in the course of personnel changes in an executive department to make personnel decisions. If the decision is wrong, statutory remedies are provided. See n. 5, infra. This is not to say that, in a given case, it would not be appropriate to raise the question whether an official - even a President - had acted within the scope of the official's constitutional and statutory duties. The doctrine of absolute immunity does not extend beyond such actions.

[Footnote 5] Gravel v. United States, 408 U.S. 606 (1972). The Federal Tort Claims Act of 1946 reflects this policy distinction; in it Congress waived sovereign immunity for certain damages claims, but pointedly excepted any "discretionary function or duty . . . whether or not the discretion involved be abused." 28 U.S.C. 2680(a). Under the Act, damage resulting from discretionary governmental action is not subject to compensation. See, e. g., Dalehite v. United States, 346 U.S. 15 (1953). For uncompensated injuries Congress may in its discretion provide separate nonjudicial remedies such as private bills.

In this case Fitzgerald received substantial relief through the route provided by Congress: the Civil Service Commission ordered him reinstated with backpay. App. 87a-88a. Similarly situated persons are therefore

[Page 457 U.S. 731, 763]

not without an adequate remedy. But see post, at 797 (WHITE, J., dissenting). In addition, respondent Fitzgerald has also received a settlement of $142,000. It can hardly be said he has had no remedy.

[Footnote 6] Judge Learned Hand described his feelings:

"After now some dozen years of experience I must say that as a litigant I should dread a lawsuit beyond almost anything else short of sickness and death." 3 Lectures on Legal Topics, Association of the Bar of the City of New York 105 (1926).

[Footnote 7] The Court suggests that "we need not address directly" whether Congress could create a damages action against a President. Ante, at 748, n. 27. However, the Court's holding, in my view, effectively resolves that issue; once it is established that the Constitution confers absolute immunity, as the Court holds today, legislative action cannot alter that result. Nothing in the Court's opinion is to be read as suggesting that a

[Page 457 U.S. 731, 764]

constitutional holding of this Court can be legislatively overruled or modified. Marbury v. Madison, 1 Cranch 137 (1803).

JUSTICE WHITE, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN join, dissenting.

The four dissenting Members of the Court in Butz v. Economou, 438 U.S. 478 (1978), argued that all federal officials are entitled to absolute immunity from suit for any action they take in connection with their official duties. That immunity would extend even to actions taken with express knowledge that the conduct was clearly contrary to the controlling statute or clearly violative of the Constitution. Fortunately, the majority of the Court rejected that approach: We held that although public officials perform certain functions that entitle them to absolute immunity, the immunity attaches to particular functions - not to particular offices. Officials performing functions for which immunity is not absolute enjoy qualified immunity; they are liable in damages only if their conduct violated well-established law and if they should have realized that their conduct was illegal.

The Court now applies the dissenting view in Butz to the Office of the President: A President, acting within the outer boundaries of what Presidents normally do, may, without liability, deliberately cause serious injury to any number of citizens even though he knows his conduct violates a statute or tramples on the constitutional rights of those who are injured. Even if the President in this case ordered Fitzgerald fired by means of a trumped-up reduction in force, knowing that such a discharge was contrary to the civil service laws, he would be absolutely immune from suit. By the same token, if a President, without following the statutory procedures which he knows apply to himself as well as to other federal

[Page 457 U.S. 731, 765]

officials, orders his subordinates to wiretap or break into a home for the purpose of installing a listening device, and the officers comply with his request, the President would be absolutely immune from suit. He would be immune regardless of the damage he inflicts, regardless of how violative of the statute and of the Constitution he knew his conduct to be, and regardless of his purpose.1

The Court intimates that its decision is grounded in the Constitution. If that is the case, Congress cannot provide a remedy against Presidential misconduct and the criminal laws of the United States are wholly inapplicable to the President. I find this approach completely unacceptable. I do not agree that if the Office of President is to operate effectively, the holder of that Office must be permitted, without fear of liability and regardless of the function he is performing, deliberately to inflict injury on others by conduct that he knows violates the law.

We have not taken such a scatter-gun approach in other cases. Butz held that absolute immunity did not attach to the office held by a member of the President's Cabinet but only to those specific functions performed by that officer for which absolute immunity is clearly essential. Members of Congress are absolutely immune under the Speech or Debate Clause of the Constitution, but the immunity extends only to their legislative acts. We have never held that in order for legislative work to be done, it is necessary to immunize all of the tasks that legislators must perform. Constitutional immunity does not extend to those many things that Senators and Representatives regularly and necessarily do that are not legislative acts. Members of Congress, for example, repeatedly importune the executive branch and administrative agencies outside hearing rooms and legislative halls, but they are not immune if in connection with such activity they deliberately

[Page 457 U.S. 731, 766]

violate the law. United States v. Brewster, 408 U.S. 501 (1972), for example, makes this clear. Neither is a Member of Congress or his aide immune from damages suits if in order to secure information deemed relevant to a legislative investigation, he breaks into a house and carries away records. Gravel v. United States, 408 U.S. 606 (1972). Judges are absolutely immune from liability for damages, but only when performing a judicial function, and even then they are subject to criminal liability. See Dennis v. Sparks, 449 U.S. 24, 31 (1980); O'Shea v. Littleton, 414 U.S. 488, 503 (1974). The absolute immunity of prosecutors is likewise limited to the prosecutorial function. A prosecutor who directs that an investigation be carried out in a way that is patently illegal is not immune.

In Marbury v. Madison, 1 Cranch 137, 165 (1803), the Court, speaking through The Chief Justice, observed that while there were "important political powers" committed to the President for the performance of which neither he nor his appointees were accountable in court, "the question, whether the legality of an act of the head of a department be examinable in a court of justice or not, must always depend on the nature of that act." The Court nevertheless refuses to follow this course with respect to the President. It makes no effort to distinguish categories of Presidential conduct that should be absolutely immune from other categories of conduct that should not qualify for that level of immunity. The Court instead concludes that whatever the President does and however contrary to law he knows his conduct to be, he may, without fear of liability, injure federal employees or any other person within or without the Government.

Attaching absolute immunity to the Office of the President, rather than to particular activities that the President might perform, places the President above the law. It is a reversion to the old notion that the King can do no wrong. Until now, this concept had survived in this country only in the form of sovereign immunity. That doctrine forecloses suit against the Government itself and against Government officials,

[Page 457 U.S. 731, 767]

but only when the suit against the latter actually seeks relief against the sovereign. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 687 (1949). Suit against an officer, however, may be maintained where it seeks specific relief against him for conduct contrary to his statutory authority or to the Constitution. Id., at 698. Now, however, the Court clothes the Office of the President with sovereign immunity, placing it beyond the law.2

[Page 457 U.S. 731, 768]

In Marbury v. Madison, supra, at 163, The Chief Justice, speaking for the Court, observed: "The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." Until now, the Court has consistently adhered to this proposition. In Scheuer v. Rhodes, (1974), a unanimous Court held that the Governor of a State was entitled only to a qualified immunity. We reached this position, even though we recognized that

"[i]n the case of higher officers of the executive branch . . . the inquiry is far more complex since the range of decisions and choices - whether the formulation of policy, of legislation, of budgets, or of day-to-day decisions - is virtually infinite. . . . In short, since the options which a chief executive and his principal subordinates must consider are far broader and far more subtle than those made by officials with less responsibility, the range of discretion must be comparably broad." Id., at 246-247.

As JUSTICE BRENNAN observed in McGautha v. California, 402 U.S. 183, 252-253 (1971) (dissenting opinion): "The principle that our Government shall be of laws and not of men is so strongly woven into our constitutional fabric that it has found recognition in not just one but several provisions of the Constitution" (footnote omitted). And as THE CHIEF JUSTICE said in Complete Auto Transit, Inc. v. Reis, 451 U.S. 401, 429 (1981) (dissenting opinion):

"Accountability of each individual for individual conduct lies at the core of all law - indeed, of all organized societies. The trend to eliminate or modify sovereign immunity is not an unrelated development; we have moved away from `The King can do no wrong.' This

[Page 457 U.S. 731, 769]

principle of individual accountability is fundamental if the structure of an organized society is not to be eroded to anarchy and impotence, and it remains essential in civil as well as criminal justice."

Unfortunately, the Court now abandons basic principles that have been powerful guides to decision. It is particularly unfortunate since 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.

We have previously stated that "the law of privilege as a defense to damages actions against officers of Government has `in large part been of judicial making.'" Butz v. Economou, 438 U.S., at 501-502, quoting Barr v. Matteo, 360 U.S. 564, 569 (1959). But this does not mean that the Court has simply "enacted" its own view of the best public policy. No doubt judicial convictions about public policy - whether and what kind of immunity is necessary or wise - have played a part, but the courts have been guided and constrained by common-law tradition, the relevant statutory background, and our constitutional structure and history. Our cases dealing with the immunity of Members of Congress are constructions of the Speech or Debate Clause and are guided by the history of such privileges at common law. The decisions dealing with the immunity of state officers involve the question of whether and to what extent Congress intended to abolish the common-law privileges by providing a remedy in the predecessor of 42 U.S.C. 1983 for constitutional violations by state officials. Our decisions respecting immunity for federal officials - including absolute immunity for judges, prosecutors, and those officials doing similar work - also in large part reflect common-law views, as well as judicial conclusions as to what privileges are necessary if particular functions are to be performed in the public interest.

[Page 457 U.S. 731, 770]

Unfortunately, there is little of this approach in the Court's decision today. The Court casually, but candidly, abandons the functional approach to immunity that has run through all of our decisions. Ante, at 755-756. Indeed, the majority turns this rule on its head by declaring that because the functions of the President's office are so varied and diverse and some of them so profoundly important, the office is unique and must be clothed with officewide, absolute immunity. This is policy, not law, and in my view, very poor policy.

I

In declaring the President to be absolutely immune from suit for any deliberate and knowing violation of the Constitution or of a federal statute, the Court asserts that the immunity is "rooted in the constitutional tradition of the separation of powers and supported by our history."3 Ante, at 749. The decision thus has all the earmarks of a constitutional pronouncement - absolute immunity for the President's office is mandated by the Constitution. Although the Court appears to disclaim this, ante, at 748-749, n. 27, it is difficult to read the opinion coherently as standing for any narrower proposition: Attempts to subject the President to liability either by Congress through a statutory action or by the courts through a Bivens (Bivens v. Six Unknown Fed. Narcotics Agents, (1971)) proceeding would violate the separation of powers.4 Such a generalized absolute immunity cannot be sustained when examined in the traditional manner and in light of the traditional judicial sources.

The petitioner and the United States, as amicus,5 rely principally on two arguments to support the claim of absolute

[Page 457 U.S. 731, 771]

immunity for the President from civil liability: absolute immunity is an "incidental power" of the Presidency, historically recognized as implicit in the Constitution, and absolute immunity is required by the separation-of-powers doctrine. I will address each of these contentions.

A

The Speech or Debate Clause, Art. I, 6, guarantees absolute immunity to Members of Congress; nowhere, however, does the Constitution directly address the issue of Presidential immunity.6 Petitioner nevertheless argues that the debates at the Constitutional Convention and the early history of constitutional interpretation demonstrate an implicit assumption of absolute Presidential immunity. In support of this position, petitioner relies primarily on three separate items: First, preratification remarks made during the discussion of Presidential impeachment at the Convention and in The Federalist; second, remarks made during the meeting of the first Senate; and third, the views of Justice Story.

The debate at the Convention on whether or not the President should be impeachable did touch on the potential dangers of subjecting the President to the control of another branch, the Legislature.7 Gouverneur Morris, for example, complained of the potential for dependency and argued that "[the President] can do no criminal act without Coadjutors who may be punished. In case he should be re-elected, that will be sufficient proof of his innocence."8 Colonel Mason

[Page 457 U.S. 731, 772]

responded to this by asking if "any man [shall] be above Justice" and argued that this was least appropriate for the man "who can commit the most extensive injustice."9 Madison agreed that "it [is] indispensable that some provision should be made for defending the Community agst the incapacity, negligence or perfidy of the chief Magistrate."10 Pinckney responded on the other side, believing that if granted the power, the Legislature would hold impeachment "as a rod over the Executive and by that means effectually destroy his independence."11

Petitioner concludes from this that the delegates meant impeachment to be the exclusive means of holding the President personally responsible for his misdeeds, outside of electoral politics. This conclusion, however, is hardly supported by the debate. Although some of the delegates expressed concern over limiting Presidential independence, the delegates voted 8 to 2 in favor of impeachment. Whatever the fear of subjecting the President to the power of another branch, it was not sufficient, or at least not sufficiently shared, to insulate the President from political liability in the impeachment process.

Moreover, the Convention debate did not focus on wrongs the President might commit against individuals, but rather on whether there should be a method of holding him accountable for what might be termed wrongs against the state.12 Thus, examples of the abuses that concerned delegates were betrayal, oppression, and bribery; the delegates feared that the alternative to an impeachment mechanism would be "tumults & insurrections" by the people in response to such

[Page 457 U.S. 731, 773]

abuses. 2 Farrand 67. The only conclusions that can be drawn from this debate are that the independence of the Executive was not understood to require a total lack of accountability to the other branches and that there was no general desire to insulate the President from the consequences of his improper acts.13

Much the same can be said in response to petitioner's reliance on The Federalist No. 77. In that essay, Hamilton asked whether the Presidency combines "the requisites to safety in the republican sense - a due dependence on the people - a due responsibility." The Federalist No. 77, p. 520 (J. Cooke ed. 1961). He answered that the constitutional plan met this test because it subjected the President to both the electoral process and the possibility of impeachment, including subsequent criminal prosecution. Petitioner concludes from this that these were intended to be the exclusive means of restraining Presidential abuses. This, by no means follows. Hamilton was concerned in The Federalist No. 77, as were the delegates at the Convention, with the larger political abuses - "wrongs against the state" - that a President might commit. He did not consider what legal means might be available for redress of individualized grievances.14

[Page 457 U.S. 731, 774]

That omission should not be taken to imply exclusion in these circumstances is well illustrated by comparing some of the remarks made in the state ratifying conventions with Hamilton's discussion in No. 77. In the North Carolina ratifying convention, for example, there was a discussion of the adequacy of the impeachment mechanism for holding executive officers accountable for their misdeeds. Governor Johnson defended the constitutional plan by distinguishing three legal mechanisms of accountability:

"If an officer commits an offence against an individual, he is amenable to the courts of law. If he commits crimes against the state, he may be indicted and punished. Impeachment only extends to high crimes and misdemeanors in a public office. It is a mode of trial pointed out for great misdemeanors against the public."15

Governor Johnson surely did not contemplate that the availability of an impeachment mechanism necessarily implied the exclusion of other forms of legal accountability; rather, the method of accountability was to be a function of the character of the wrong. Mr. Maclaine, another delegate to the North Carolina Convention, clearly believed that the courts would remain open to individual citizens seeking redress from injuries caused by Presidential acts:

"The President is the superior officer, who is to see the laws put in execution. He is amenable for any maladministration in his office. Were it possible to suppose that the President should give wrong instructions to his

[Page 457 U.S. 731, 775]

deputies, whereby the citizens would be distressed, they would have redress in the ordinary courts of common law."16

A similar distinction between different possible forms of Presidential accountability was drawn by Mr. Wilson at the Pennsylvania ratifying convention:

"[The President] is placed high, and is possessed of power far from being contemptible; yet not a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment."17

There is no more reason to respect the views of Hamilton than those of Wilson: both were members of the Constitutional Convention; both were instrumental in securing the ratification of the Constitution. But more importantly, there is simply no express contradiction in their statements. Petitioner relies on an inference drawn from silence to create this contradiction. The surrounding history simply does not support this inference.

The second piece of historical evidence cited by petitioner is an exchange at the first meeting of the Senate, involving Vice President Adams and Senators Ellsworth and Maclay. The debate started over whether or not the words "the President" should be included at the beginning of federal writs, similar to the manner in which English writs ran in the King's name. Senator Maclay thought that this would improperly combine the executive and judicial branches. This, in turn, led to a discussion of the proper relation between the two. Senator Ellsworth and Vice President Adams defended the proposition that

"the President, personally, was not subject to any process whatever; could have no action, whatever, brought

[Page 457 U.S. 731, 776]

against him; was above the power of all judges, justices, &c. For [that] would . . . put it in the power of a common justice to exercise any authority over him, and stop the whole machine of government."18

In their view the impeachment process was the exclusive form of process available against the President. Senator Maclay ardently opposed this view and put the case of a President committing "murder in the street." In his view, in such a case neither impeachment nor resurrection were the exclusive means of holding the President to the law; rather, there was "loyal justice." Senator Maclay, who recorded the exchange, concludes his notes with the remark that none of this "is worth minuting, but it shows clearly how amazingly fond of the old leaven many people are."19 In his view, Senator Ellsworth and his supporters had not fully comprehended the difference in the political position of the American President and that of the British Monarch. Again, nothing more can be concluded from this than that the proper scope of Presidential accountability, including the question whether the President should be subject to judicial process, was no clearer then than it is now.

The final item cited by petitioner clearly supports his position, but is of such late date that it contributes little to understanding the original intent. In his Commentaries on the Constitution, published in 1833, Justice Story described the "incidental powers" of the President:

"Among these must necessarily be included the power to perform [his functions] without any obstruction or impediment whatsoever. The President cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office; and for this purpose his person must be deemed, in civil cases

[Page 457 U.S. 731, 777]

at least, to possess an official inviolability. In the exercise of his political powers he is to use his own discretion, and he is accountable only to his country and to his own conscience. His decision in relation to these powers is subject to no control, and his discretion, when exercised, is conclusive."20

While Justice Story may have been firmly committed to this view in 1833, Senator Pinckney, a delegate to the Convention, was as firmly committed to the opposite view in 1800.[Footnote 21]

Senator Pinckney, arguing on the floor of the Senate, contrasted the privileges extended to Members of Congress by the Constitution with the lack of any such privileges extended to the President.[Footnote 22] He argued that this was a deliberate choice of the delegates to the Convention, who "well knew how oppressively the power of undefined privileges had been exercised in Great Britain, and were determined no such authority should ever be exercised here." 10 Annals of

[Page 457 U.S. 731, 778]

Cong. 72 (1800). Therefore, "[n]o privilege of this kind was intended for your Executive, nor any except that . . . for your Legislature." Id., at 74.[Footnote 23]

In previous immunity cases the Court has emphasized the importance of the immunity afforded the particular government official at common law. See Imbler v. Pachtman, 424 U.S. 409, 421 (1976). Clearly this sort of analysis is not possible when dealing with an office, the Presidency, that did not exist at common law. To the extent that historical inquiry is appropriate in this context, it is constitutional history, not

[Page 457 U.S. 731, 779]

common law, that is relevant. From the history discussed above, however, all that can be concluded is that absolute immunity from civil liability for the President finds no support in constitutional text or history, or in the explanations of the earliest commentators. This is too weak a ground to support a declaration by this Court that the President is absolutely immune from civil liability, regardless of the source of liability o