Article II: Presidential Immunity to Criminal and Civil Suits

The Constitution doesn't directly discuss presidential immunity from criminal or civil lawsuits. Instead, the privilege has developed over time through the Supreme Court's interpretation of Article II.

The term "presidential immunity" can be somewhat misleading. It does not mean a president is totally immune from civil or criminal liability. Instead, it refers to a longstanding tradition that a president who acts within their authority is generally immune from lawsuits based on it.

The legal doctrine of presidential immunity dates back to the 1860s. However, the issue has gained significant attention in recent years. In 2024, Donald Trump became the first former president convicted of criminal charges.

This article summarizes the doctrine of presidential immunity in both civil and criminal contexts. It begins with frequently asked questions about presidential immunity. It then provides a history of the Supreme Court's development of the doctrine. It concludes by discussing recent developments, including Trump's conviction.

Use the links below to jump to different sections:

• Historical Background of Presidential Immunity
• United States v. Nixon (1974): Federal Criminal Subpoenas
• Nixon v. Fitzgerald (1982): Civil Suits Regarding a President's Official Acts
• Clinton v. Jones (1997): Civil Suits Regarding a President's Conduct Before Taking Office
• Trump v. Vance (2020): State Criminal Subpoenas
• New York v. Trump (2024): Convicting a Former President
• Trump v. United States (2024): Presumptive Immunity from Criminal Prosecution

Frequently Asked Questions

This section provides answers to frequently asked questions about presidential immunity. For more information, read the historical background section below.

Why does presidential immunity exist?

The president's unique duties and position make immunity a vital safeguard for the American government.

The president of the United States makes many decisions that affect many people. Because their decisions affect so many people, it's reasonable to assume that they will harm some people.

Imagine if presidents did not have some form of immunity. In theory, any person could allege harm resulting from the president's decisions. They could then file a lawsuit against the president and hold them personally liable for the damage caused. If that were the case, the president would spend all of their time in office defending against lawsuits. Presidential immunity protects against this diversion of time and energy. By doing so, it leads to more effective governance.

Presidential immunity does not just protect the president. It also protects the public interest by allowing the president "the maximum ability to deal fearlessly and impartially with" their official duties. In other words, it allows the president to act within their official capacity without fearing impending litigation for civil damages at every turn.

Absolute immunity from civil suits does not leave America without recourse or protection against a sitting president. Congressional oversight and Article II's impeachment clause act to check the executive branch.

What does presidential immunity cover?

Presidential immunity generally provides immunity for a president's official acts. In other words, presidents receive immunity for actions related to their official duties. The Constitution enumerates the president's responsibilities in Article II, Section 3. They include the following:

• Giving a State of the Union address to Congress

• Recommending measures to Congress

• Receiving foreign ambassadors and public ministers

• Take care that the laws are faithfully executed

• Commissioning all officers of the United States

However, presidential immunity generally does not extend to:

• Unofficial conduct (i.e., conduct that does not relate to their duties)

• Conduct that occurred before the president took office

Presidents also have absolute immunity for actions within the "outer perimeter" of their duties. This article explores how the Supreme Court has defined this perimeter below.

Is the president immune from civil liability?

Not exactly. The president has absolute immunity from civil liability for private suits arising from actions taken within their official duties. This includes all acts in the "outer perimeter" of those duties.

However, the president is not immune from civil actions that either:

• Arose from the president's unofficial conduct while in office, or

• Arose from actions they took before taking office.

In other words, the judiciary can hold presidents liable for their private actions, just like anyone else. For example, take Clinton v. Jones (1997), which held that President Bill Clinton was not protected from a sexual harassment lawsuit based on conduct before he was president.

Is the president immune from criminal liability?

Following the Supreme Court’s decision in Trump v. United States (2024), presidents are presumptively immune from criminal prosecutions. But the immunity only extends to official acts they took as president. The government can rebut the presumption by proving that a prosecution would not “pose any dangers of intrusion on the authority and functions of the Executive Branch.”

Whether a sitting president receives immunity from criminal prosecutions or liability is unknown. The Supreme Court has never ruled that a sitting president is immune from criminal liability.

Some argue that Congress must use its power of impeachment to remove the president from office before they face criminal proceedings. However, the Department of Justice (DOJ) has concluded that, based on the Constitution's structure and Supreme Court precedent (related to immunity from civil liability), it should not indict a sitting president, much less prosecute them while in office.

Instead, it is likely more proper for the House of Representatives to impeach and the Senate to convict a sitting president. Then, the DOJ could begin its criminal prosecution. This process would avoid consuming the sitting president's time with a criminal case. Alexander Hamilton supported this view in The Federalist Nos. 65 and 69.

Are ex-presidents immune from liability?

Sometimes. The same principle applies to former presidents as it does to sitting presidents—they are not immune to lawsuits arising from unofficial conduct, criminal acts, or actions prior to taking office.

Former presidents are not absolutely immune from criminal liability. For more information, see the discussion of former President Trump below.

Historical Background of Presidential Immunity

The Constitution does not explicitly grant immunity to the President. Instead, the doctrine of presidential immunity has developed over time through the judicial process involving civil cases filed against the head of the executive branch.

The concept of presidential immunity dates back to the 1860s. In Mississippi v. Johnson (1866), Mississippi tried to sue President Andrew Johnson regarding the Reconstruction Acts.

Congress passed the Reconstruction Acts in 1867. They addressed the requirements for the readmission of states that had seceded during the Civil War. President Andrew Johnson vetoed the Acts, but Congress overrode his veto.

Mississippi attempted to sue President Johnson and stop him from enforcing the Acts. The Supreme Court ruled that the judiciary could not direct President Johnson with regard to how he exercised his "purely executive and political powers." It held it did not have jurisdiction to enjoin the president from taking action (or failing to take action) that fell within his official duties.

However, as the Constitutioned Annotated notes, subsequent Supreme Court cases have confirmed that a president does not have absolute immunity from civil liability.

Richard Nixon's tenure as president led to several developments concerning executive privilege and immunity.

United States v. Nixon (1974): Federal Criminal Subpoenas

Richard Nixon's tenure as president led to several developments concerning executive privilege and immunity.

United States v. Nixon (1974) was a landmark decision for several reasons. The case is most famous for leading to Nixon's eventual resignation. It also altered the Constitution's separation of powers between the three political branches. The case was also significant with regard to presidential immunity.

The case stemmed from the Watergate Scandal in 1972. Men associated with Nixon's reelection campaign broke into their political opponent's headquarters located at Washington, D.C.'s Watergate Hotel. Nixon and his subordinates attempted to cover up their connections with the burglars.

Nixon agreed to appoint a special prosecutor to investigate the burglary and sabotage. The special prosecutor obtained a grand jury subpoena and demanded that Nixon produce tape recordings of conversations with his advisers.

Nixon refused to turn over the recordings. He argued that executive privilege forbade the courts from requiring him to turn over evidence of his conversations in the White House. Specifically, he argued the following:

• That courts had no power to issue orders to the president

• The scope of "executive privilege" was absolute and was within the president's sole discretion

In other words, Nixon tried to quash the subpoena, told the court it had no power over him, and argued that it had to rule in his favor.

The Supreme Court unanimously rejected all of Nixon's arguments. It ruled that:

• The Court had the power to reject a president's claim of executive privilege.

• The special prosecutor could subpoena a president, even though they are technically subordinate to the president.

• The president had no privilege of confidentiality concerning the tapes.

• Nixon had to comply with the subpoena and hand over the tapes.

Nixon ultimately produced the tapes, and they indicated he took part in the cover-up. He resigned several days later. His vice president, Gerald Ford, pardoned Nixon for any crimes he may have committed.

The case supports the idea that courts may require presidents to testify or produce documents in criminal cases. As the Constitution Annotated notes, this principle existed as early as 1807. There, Circuit Justice John Marshall held that President Thomas Jefferson was subject to a subpoena in Aaron Burr's treason trial in Virginia.

However, United States v. Nixon does not resolve the question of whether a sitting president could face a criminal proceeding while still in office.

Nixon v. Fitzgerald (1982): Civil Suits Regarding a President's Official Acts

In Nixon v. Fitzgerald, the Supreme Court held that presidents are "absolutely immune" in civil cases when the action at issue falls within the "outer perimeter" of their official duties. Courts do not have jurisdiction over civil lawsuits for damages that stem from a president's official acts.

The Court based its decision partly on precedent finding immunity for certain officials. It also emphasized that the president has a unique position compared to all other executive officials.

A. Earnest Fitzgerald was a management analyst in the Department of the Air Force. In 1968, during President Lyndon B. Johnson's last full month in office, Fitzgerald testified to Congress about financial and technical difficulties regarding developing a new airplane. The Court noted that Fitzgerald's testimony embarrassed his Department of Defense (DOD) superiors.

In 1970, the Department of the Air Force underwent a "departmental reorganization" and eliminated Fitzgerald's position. Fitzgerald filed a complaint with the Civil Service Commission. He claimed that the government unlawfully retaliated against him regarding his testimony.

In 1973, Nixon took personal responsibility for Fitzgerald's dismissal. He stated he approved it at the time. The White House retracted his statement the next day.

Nine months later, the Chief Examiner for the Civil Service Commission issued his decision. He concluded that Fitzgerald's dismissal "offended applicable civil service regulations." He also determined that the dismissal was motivated by "reasons purely personal" to Nixon. However, the Examiner concluded the dismissal was not in retaliation for Fitzgerald's testimony in 1969.

Fitzgerald filed a civil suit in federal court against eight DOD employees, a White House aide, and several unnamed White House aides ("John Does"). After a lengthy legal process, three defendants remained in the case by March 1980, one of whom was Nixon.

In 1980, the district court ruled that Fitzgerald had stated valid causes of action against the defendants. It also held that Nixon could not claim absolute immunity from the claim. Eventually, the Supreme Court took the issue of presidential immunity up for review.

The Court began by examining historical instances of immunity for government officials. It noted that the general idea of immunity for public officials has roots in English common law. The Court wrote that considerations of "'public policy and convenience' compelled a judicial recognition of immunity from suits arising from official acts."

In a 5-4 decision, the Court ruled that Nixon was immune from Fitzgerald's civil claims. The majority opinion concluded that Nixon was "entitled to absolute immunity from damages liability predicated on his official acts." The Court considered the immunity as 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."

The Court then quoted former Justice Joseph Story in his Commentaries on the Constitution of the United States:

"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."

The Court also described the scope of presidential immunity. It reviewed prior decisions, where it determined that an official's action "must be closely related to the immunity's justifying purposes." Absolute immunity generally only extends to actions taken within the functions of their office.

Given those cases and the president's role in the Constitutional framework, the Court held that it would "recognize absolute Presidential immunity from damages liability for acts within the 'outer perimeter' of his official responsibility."

The majority then determined that because the president has constitutional and statutory authority to direct the Secretary of Defense regarding the Air Force, including reorganizations like the one that occurred in 1970, Nixon's alleged wrongful acts "lay well within the outer perimeter of his authority."

Clinton v. Jones (1997): Civil Suits Regarding a President's Conduct Before Taking Office

The issue in Clinton v. Jones was whether presidential immunity applied to a president's conduct before assuming office. The Court held that it did not.

In 1994, Paula Jones, a former Arkansas state employee, sued President Bill Clinton. She alleged Clinton sexually harassed her when he was the governor of Arkansas in 1991. She sought civil damages from Clinton in a federal district court.

President Clinton filed a motion to dismiss. In it, he argued that presidential immunity barred the lawsuit. The district court judge ruled that a sitting president could not be sued. The judge deferred the case until after Clinton left office. However, the judge allowed the parties to engage in discovery while Clinton was still in office.

Both Jones and Clinton appealed. The Eighth Circuit Court of Appeals ruled in Jones' favor. It also reversed the district court's ruling regarding the deferral, stating that the district court could not grant "temporary immunity" to presidents. Clinton appealed to the Supreme Court.

The Supreme Court unanimously affirmed the decision of the Court of Appeals. It noted that one of the main reasons presidents get immunity is that it allows them to perform the duties of their office without fear of personal liability for their actions. This rationale does not apply to conduct that occurred before they took office.

The Court also ruled that the separation of powers structure does not require a federal court to delay a private suit against a president until they leave office. Article III courts could accommodate Clinton's schedule to maintain his ability to fulfill his duties.

For more information about the Jones case and its aftermath, see Presidential Impeachment Cases and Article II, Section 4: Impeachment.

Trump v. Vance (2020): State Criminal Subpoenas

In Trump v. Vance, the Court addressed whether the president has absolute immunity from a state criminal proceeding. The Court held that Article II and the Supremacy Clause do not preclude a district attorney from subpoenaing a sitting president. They also do not require a heightened standard to do so.

In 2019, the New York County District Attorney's office subpoenaed President Donald Trump's accounting firm. It required the firm to produce Trump's personal and business-related financial records.

Trump sued the district attorney and the accounting firm in federal district court. He argued that presidential immunity protected him due to his status as a sitting president. He cited Article II and the Supremacy Clause in his argument to enjoin the subpoena's enforcement.

The trial court dismissed the case but, in the alternative, ruled that Trump could not quash the subpoena. The Second Circuit Court of Appeals rejected the district court's dismissal. However, it affirmed the trial court's denial of injunctive relief. It also held that a state grand jury subpoena does not require a heightened standard with regard to showing a need for the requested records.

The case reached the Supreme Court in 2020. The Court cited Chief Justice Marshall's opinion in a Circuit Court case from 1807, which set the precedent that courts can subpoena sitting presidents. It also relied on United States v. Nixon, where the Court determined Nixon had to turn over the tape recordings due to a "demonstrated, specific need" for them.

The Court also noted that the cases it relied upon all involved the federal criminal process. Trump's case involved a state criminal proceeding. As noted above, Trump argued that he had absolute immunity from state criminal proceedings. In addition, the Solicitor General argued that a grand jury subpoena for the president's personal records had to meet a "heightened standard of need." Trump also relied on Nixon v. Fitzgerald, arguing that complying with the subpoena would distract him from his duties.

The 7-2 majority decision noted that Nixon v. Fitzgerald did not base its decision solely on whether a subpoena would distract a president from his duties. It also cited Clinton v. Jones, where the Court rejected an immunity argument based on the potential distraction it may cause. The Court rejected Trump's argument that the potential distraction of the state criminal subpoena afforded him absolute immunity.

The Court also ruled that a state grand jury subpoena does not need to show a heightened standard of need to seek a president's personal records. It relied on the 1807 case, which held that the president stands in "nearly the same situation with any other individual" with regard to producing papers.

The Court also noted that Trump did not show that a heightened standard was necessary for him to fulfill his presidential duties. Finally, the Court noted that the public interest in fair and effective law enforcement favored comprehensive evidence.

In summary, the Court held that the president does not have absolute immunity from complying with a state criminal subpoena.

New York v. Trump (2024): Convicting a Former President

In May 2024, Trump became the first former president convicted of a felony criminal offense. A jury convicted him of 34 counts of falsifying business records. His convictions stemmed from a $130,000 payment to an adult film star, Stormy Daniels, related to an alleged affair they had years earlier. The charges all concerned paperwork related to the "hush-money" payment.

In the lead-up to the 2016 election, Trump learned that Daniels intended to write an account about their prior sexual relationship. In October 2016, Trump's attorney, Michael Cohen, negotiated a deal with Daniels' attorney. Cohen agreed to advance $130,000 to Daniels on Trump's behalf in exchange for her silence. He used a shell company he owned to make the payment.

Trump and Cohen allegedly reached an agreement on how Trump would reimburse Cohen for the payment. Cohen allegedly sent monthly invoices to the Trump Organization for payment pursuant to a "retainer agreement." However, the retainer agreement allegedly did not exist. In addition, the Trump Organization's records allegedly indicated the payments were for legal fees.

In August 2018, Cohen pleaded guilty to campaign finance violations in connection with the $130,000 payment he made to Daniels. He testified that Trump directed him to make the payment and that Trump reimbursed him.

In 2023, Manhattan District Attorney Alvin Bragg charged Trump with 34 counts of falsifying business records. He alleged Trump falsified the records to "conceal damaging information and unlawful activity from American voters before and after the 2016 election."

During the trial in May 2024, Trump argued that the payments he made to Cohen were for legal services rather than reimbursement. He also argued that Cohen was a liar and that his testimony regarding Trump's knowledge of the payment was false.

The jury convicted Trump on all 34 counts. Each count is a first-degree felony, carrying a maximum four-year prison sentence and a $5,000 fine. The court scheduled Trump's sentencing for July 11, 2024. However, it was postponed in light of the Supreme Court's decision that presidents are at least partially immune from criminal prosecution (discussed below).

The case is historic because it is the first time a former president has been convicted of a felony crime. Time will tell whether the conviction is affirmed or reversed or whether Trump appeals the case at all.

Trump v. United States (2024): Presumptive Immunity from Criminal Prosecution

After Trump lost the 2020 election, he allegedly conspired to overturn the election. A federal grand jury indictment charged him with four counts involving actions he took as president after the election. The counts were as follows:

• Conspiracy to defraud the United States

• Conspiracy to obstruct an official proceeding

• Obstruction and an attempt to obstruct an official proceeding

• Conspiracy against rights

Trump v. United States was the first criminal case involving a former president’s conduct while he was in office.

Trump filed a motion to dismiss the charges based on presidential immunity. He argued that his actions fell within the outer perimeter of his official duties. He argued, therefore, that he had absolute immunity from the charges.

The federal district court denied Trump’s motion to dismiss. It ruled that presidents do not possess immunity from federal criminal charges. The District of Columbia Circuit affirmed the district court’s ruling. Neither court ruled whether the indictment involved constitutionally- or statutorily-authorized conduct.

Majority Grants Broad Immunity

The case reached the Supreme Court in April 2024. On July 1, 2024, a 6-3 majority of the Court issued the following rulings:

• Presidents have absolute immunity from criminal prosecutions for actions they take within their “conclusive and preclusive constitutional authority.” In other words, if the Constitution gives the president the power to act, courts cannot adjudicate a criminal prosecution alleging the president’s conduct was criminal.

• The president is presumptively immune from criminal prosecution for any official act they undertake.

• The Court reiterated that presidents do not have immunity for their unofficial acts.

Regarding the first holding, the Court noted that the Constitution vests the executive power in the president. It relied upon Justice Robert Jackson’s famous concurrence in Youngstown Sheet & Tube Co. v. Sawyer (1952). Justice Jackson created a framework for the president’s powers and ability to act. He wrote that the president gets the power to act either from an act of Congress or the Constitution itself.

In Trump’s case, the Court noted that the Constitution sometimes gives the president clear authorization to act. It also sometimes gives them preclusive authority to act. The Court held that when the president acts within either type of authority, “Congress cannot act on, and courts cannot examine, the President’s actions.”

Congress also cannot criminalize any action the president has the authority to take. Furthermore, the Court held that courts cannot adjudicate a criminal prosecution that examines a president’s official acts.

Official Acts

Regarding its second holding, the Court examined its precedents and the Constitution’s separation of powers. It concluded that the president is at least presumptively immune from criminal prosecutions related to their official acts. It specifically noted the following:

• The executive power requires the president to act with “the utmost discretion and sensitivity.” (Nixon v. Fitzgerald).

• The separation of powers and prior cases show that the president has several privileges and immunities. These enable them to do their job without fearing lawsuits resulting from each decision. They also allow the president to take “bold, unhesitating action” as necessary.

• The president does not have absolute immunity from civil or criminal proceedings. For example, presidents generally must comply with subpoenas for information. (United States v. Nixon; United States v. Burr). In those cases, however, the president has a presumptive privilege concerning their communications.

• A criminal prosecution poses a greater threat to the president's job performance than producing evidence in a trial does. The threat of criminal prosecution may make the president hesitate when executing the duties of their office, more so than the threat of civil liability.

Based on the above considerations, the Court ruled that the president is presumptively immune from criminal prosecutions related to their official acts. This includes acts taken within the outer perimeter of their official powers and responsibilities.

The Court held that presumptive immunity is necessary to “safeguard the independence and effective functioning” of the presidency. The government can rebut the presumption. To do so, it must show a prosecution would not pose any danger of intruding on the “authority and functions of the Executive Branch.”

Unofficial Conduct

For its third holding, the Court reaffirmed its longstanding tradition that the president does not have immunity for their unofficial conduct. In this regard, the Court noted the following:

• The first step for courts to analyze is whether the president’s conduct fell within their official duties. In other words, courts must determine whether the Constitution or an act of Congress authorized the president to act so.

• The Court held that the judiciary cannot consider the president’s motive in its determination. The Court ruled that inquiring into the president’s motive would subject their every action to judicial examination.

• Courts cannot deem a president’s action unlawful just because it allegedly violated a generally applicable law. If it did, immunity would have no effect because presidents would be subject to trial whenever someone alleged the president acted unlawfully.

• The government cannot indict the president based on conduct from which they are immune from prosecution.

The Court ruled that the part of the indictment alleging that Trump’s conversations with the acting attorney general and other DOJ members were within his official duties. Therefore, the Court determined that Trump was immune to that specific allegation.

What Happens Now?

The Court remanded the rest of the case to the district court. Among other things, the district court must do the following:

• Determine whether the indictment’s remaining allegations involve official or unofficial conduct.

• Determine whether the indictment’s remaining allegations involve conduct to which the president is immune. The Court also noted the district court cannot use a president’s testimony or private records as evidence at trial.

• Determine whether a prosecution involving Trump’s alleged attempts to influence the vice president regarding the certification process “would pose any dangers of intrusion on the authority and functions of the Executive Branch.”

The Court also rejected Trump’s argument that the impeachment clause required the Court to dismiss the indictment. He argued that the clause required Congress to impeach and convict a president before a criminal prosecution occurs. The Court ruled that the clause does not protect a former president from criminal prosecution.

Justice Sotomayor's Dissent

Trump v. United States provides the president with broad immunity from criminal prosecutions. In her dissenting opinion, Justice Sonia Sotomayor argued that the decision allows presidents to break the law freely.

For example, she argues that it would prevent the criminal prosecution of a president who ordered Navy Seals to assassinate a political opponent or accept a bribe to pardon someone. In essence, the dissent argues that the president is no longer bound to follow the law.

The majority disagreed with Sotomayor’s hypotheticals, calling it “fear-mongering.” Instead, the majority found presidential immunity from criminal prosecution to be rooted in the Constitution and necessary to protect against ongoing “lawfare” between administrations. Time will tell which side was “right” about the decision’s effect.