Shielding the President

By Bennett H. Beach

The Supreme Court upholds his immunity from suits

Public officials have traditionally enjoyed special status under the law.

Like all citizens, they are subject to the criminal laws, but if an official violated a citizen's rights, a judge's main recourse was to order a halt to the unlawful conduct. The official was generally immune from lawsuits in which the aggrieved citizen sought monetary compensation. Exposing officials to such civil actions, reasoned the Supreme Court in 1896, "would seriously cripple the proper and effective administration of public affairs." Over the years, small, scattered openings were occasionally made in this wall. Then, in 1971, the high court punched the first major hole by ruling that federal narcotics agents who had entered a New York City couple's apartment without a warrant were subject to personal liability suits. In subsequent rulings, the court limited the immunity enjoyed by state officials--and then U.S. Cabinet officers--by denying them protection if their actions were taken in disregard of the law or with malicious intent. Last week the Justices had an opportunity to chip away further at official immunity in a major case involving former President Richard Nixon. They held back, however. By a 5-to-4 vote, they ruled that Presidents retain absolute immunity as long as they are acting within the "outer perimeter" of their official duties.

The issue that led to the decision surfaced in 1968, when Air Force Budget Analyst A. Ernest Fitzgerald told Congress that development costs of the $3.4 billion C-5A transport plane were over budget by $2 billion. In 1970, as the result of what the Air Force described as a reorganization, the Pentagon let Fitzgerald go. The Civil Service Commission found the dismissal improper, and ordered that he be re-employed with back pay. Fitzgerald protested that his new cost analyst job was not equivalent to the old one. In a $3.5 million suit, Fitzgerald charged that Nixon had conspired to deprive him of his job and prevent future employment. In two lower federal courts, Fitzgerald defeated Nixon's claims of immunity and won the right to take him to trial.

Last week three of Nixon's appointees (Chief Justice Warren Burger, Lewis Powell and William Rehnquist) helped overturn those lower-court decisions. Wrote Powell for the majority: "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." A Chief Executive who was vulnerable to such suits, Powell argued, would tend to be overly cautious.

Not only is it sound policy to shield the Government's top official, said Powell, but under the separation-of-powers doctrine, the Judicial Branch should refrain from undue interference with the President's actions. For example, judges could slow the wheels of Executive power by providing too ready a forum for plaintiffs who ask them to scrutinize a President's day-to-day conduct. In a concurring opinion, Burger noted that Congressmen, their aides, judges and prosecutors enjoy similar immunity.

The four dissenters objected that the ruling put the President "above the law." Wrote Justice Byron White: "It is a reversion to the old notion that the King can do no wrong." He chided the majority for abandoning the approach used in other immunity cases: that the shield attaches to functions rather than to offices. Though district attorneys, for example, have absolute immunity while prosecuting a case, they do not have it when directing an investigation. White also argued that an impenetrable shield denies an aggrieved citizen his right to an adequate remedy.

Nixon had no comments, but no doubt welcomes the help that the ruling should provide in one other case. He and his National Security Adviser Henry Kissinger were sued for monetary damages by former Aide Morton Halperin for wiretaps placed on Halperin's phone from 1969 to 1971. Nixon should now be able to get these charges dismissed.

For his part, Fitzgerald declared that he was "obviously not" pleased. Said he: "It ought to frighten anyone who loves liberty." Though disappointed, Fitzgerald will not come off completely emptyhanded. In 1980, in exchange for Fitzgerald's pledge not to take the case to trial even if he prevailed on appeal, Nixon agreed to pay him $142,000. In addition, the former President promised another $28,000 if Fitzgerald won in the Supreme Court. Two weeks ago, Fitzgerald settled a separate suit against the Federal Government under terms guaranteeing him his former position and $200,000 for legal fees.

While the court was granting absolute immunity to Presidents, it refused to do the same for their aides. Fitzgerald had sued two of Nixon's assistants, Bryce Harlow and Alexander Butterfield, over his job problems. Last week the Justices ruled, 8 to 1, that the aides, like Cabinet officers, enjoy only "qualified" immunity. An official, said the court, would be liable to a suit if he could be expected to know he was violating the law. While technically a defeat for the two Nixon aides, the ruling was in a large sense a victory because the court dropped the existing rule that a high official could also be sued if he acted maliciously. The court reasoned that this change would cut the growing number of such suits. Said the aides' lawyer, former Attorney General Elliot Richardson: "Public officials from school board members to White House advisers, and the public itself," should applaud this decision.

Expert reaction to the rulings is considerably cooler. "Both decisions were wrong," says University of Pennsylvania Law Professor Paul Bender. "If anything, we citizens need more protection, not less." The Harlow decision is expected to have broad impact; scholars suggest that the Nixon ruling was noteworthy mostly on a theoretical level. Says Bender: "It has very little practical application. The chances of being able to prove a case against the President were always very small." Nevertheless, some experts welcome the ruling. Says Duke Law Professor William Van Alstyne: "I do not want a President of the United States to have to worry about being haled into court, testifying, and having to pay damages from his private savings.''

--By Bennett H. Beach

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