Presidential Immunity: A Brief Overview

Balancing Power and Accountability

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Published October 28, 2024

Analysis written by Elizabeth Tessier

The long-standing history of the rule of law is exemplified by the English Magna Carta, which outlined the principle that even the king is bound by law, protecting against arbitrary rule where the king alone dictates the law without being subject to it. As history progressed, this same concept was established in the U.S. – the President is not above the law. However, enforcing compliance on executives becomes murkier in court. Presidential immunity refers to the legal protection granted to the President of a country from certain legal prosecution/charges while in office to ensure their ability to discharge their duties. But how much protection should be granted? Cases such as Nixon v. United States and Trump v. Vance explore the tension between the balance of protecting power and accountability. The defense of presidential immunity in criminal cases has generally fallen short of justifying actions that are unrelated to official presidential duties.

Presidential immunity has been argued to be necessary on account of the unique role of the President in protecting the executive branch functions. However, it has become a controversial topic raising concerns of impunity. The 1974 case arising from the Watergate scandal highlights this highly contentious issue. Nixon v. United States emerged from Nixon’s refusal to abide by a subpoena demanding he turn over tape recordings during his presidency. The question of immunity from the criminal process of matters related to President Nixon’s official duties arose. Nixon declared that he was granted absolute immunity by holding office, an extreme declaration of blanket protection. However, as stated by the Supreme Court majority in the case, “The commonsense meaning of the [Clause’s] word ‘sole’ is that the Senate alone shall have authority to determine whether an individual should be acquitted or convicted.”(1) The Supreme Court held that regardless of the President’s position, the Commander in Chief is not above the law and does not possess absolute immunity, forcing Nixon to comply with the legal process and abide by the subpoena’s order to turn over the recordings. The following release of the tapes led to Nixon's eventual resignation from office, underscoring the importance of accountability of a president and the limitation on immunity.

The understanding of presidential immunity was further analyzed in Trump v. Vance. This case confronted the investigation of Manhattan District Attorney Cyrus Vance, the district attorney who served Trump’s accounting firm for his financial documents due to potential crimes in violation of New York law. Then-President Trump refused, claiming he held presidential immunity from state-level investigations while holding office. His lawyers argued that this immunity was needed because it would distract Trump from his presidential duties and there would be a stigma attached, as the public would assume he did something wrong. Further, they argued that if the Court allowed the subpoena, it would open floodgates to nuisance suits from prosecutors doing the same. The majority held that “Article II and the Supremacy Clause do not categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President.”(2) The Court ruled the President is subject to legal proceedings, reaffirming the precedent from Nixon. The Court stated the distraction was insufficient compared to the interest of the state of New York in their investigation of fraud unrelated to the duties of the Presidency. Further, the Court argued that complying would demonstrate conformity to the law, not a stigma. The Court also stated there were high enough protections against nuisance cases to negate this argument. Thus, limiting an attempt to invoke presidential immunity to insufficient claims. 

The U.S. Constitution separates the individual from the office. This is a central triumph for the rule of law as it evolves. Actions taken outside the scope of official duties are less likely to be protected by immunity, and even those closely related to presidential functions, as demonstrated in the Nixon case, can still be subject to limitations. Few claims of presidential immunity have been successful, reinforcing that such immunity does not grant presidential unchecked authority. This aligns with the intent of the Founding Fathers, as inscribed in the nation's founding documents after the revolution that ended British rule. As new cases regarding presidential immunity arise, more light is shed on what this defense specifically describes for protection and accountability.

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(1) Nixon v. United States, 506 U.S. 224 (1993).

(2)Trump v. Vance, 591 U.S. ___ (2020).