Also known as: presidential immunities · executive immunity
Written by attorneys — see sources below.
A doctrine providing that the President has no immunity from civil damages liability for unofficial conduct that occurred before taking office. The protection is limited to official acts and does not shield the President from suits based on prior private conduct.
Years before entering politics, Javier founded a startup and allegedly hacked a rival company's systems, releasing the founder's personal data. Sheri, the founder, sues Javier for damages in federal court after he becomes President. The court denies the motion to dismiss because the alleged conduct was private and predates the presidency.
Gail worked at a startup led by Molly and assigned patents in reliance on promises of equity. Molly later became President. Gail sues for breach of contract and fraud arising from the pre-office events. The district court denies the motion to dismiss on immunity grounds because the claims rest solely on private conduct that occurred before Molly took office.
In January 1970 respondent A. Ernest Fitzgerald lost his job as a management analyst with the Department of the Air Force when his position was eliminated during a departmental reorganization and reduction in force. One year earlier, on November 13, 1968, Fitzgerald had testified before the Subcommittee on Economy in Government of the Joint Economic Committee that cost overruns on the C-5A transport plane could approximate $2 billion. Concerned that the dismissal might constitute retaliation for the congressional testimony, the subcommittee held public hearings. At a December 8, 1969 news conference President Richard Nixon promised to look into the matter and directed White House Chief of Staff H. R. Haldeman to arrange for Fitzgerald's reassignment to another administration position. An internal White House memorandum from aide Alexander Butterfield recommended that Fitzgerald "bleed, for a while at least" because of perceived disloyalty, and no further White House efforts to reemploy him occurred. Fitzgerald complained to the Civil Service Commission alleging unlawful retaliation. The Examiner held that Fitzgerald's dismissal had offended applicable civil service regulations based on a finding that the departmental reorganization was motivated by reasons purely personal to respondent. The Examiner recommended Fitzgerald's reappointment to his old position or to a job of comparable authority. The Commission explicitly found that the evidence did not support Fitzgerald's allegation of retaliation for his 1968 testimony. At a January 31, 1973 news conference President Nixon stated that he had approved Fitzgerald's dismissal. A day later the White House press office issued a retraction of the President's statement. In 1978 Fitzgerald filed a second amended complaint in the United States District Court for the District of Columbia naming Nixon as a defendant and alleging violations of the First Amendment and two federal statutes. The District Court denied Nixon's motion for summary judgment on absolute immunity grounds. The Court of Appeals for the District of Columbia Circuit dismissed the collateral appeal. Shortly after Nixon petitioned for certiorari the parties agreed that Nixon would pay Fitzgerald $142,000 immediately and an additional $28,000 if the Supreme Court ruled he was not entitled to absolute immunity.
View caseA farmworker employed at an agricultural enterprise owned by the future President alleges wage theft and unsafe housing from a decade earlier. After the owner becomes President, the worker files a federal damages suit. The court rejects the immunity defense because the conduct was unofficial and predates the presidency.
In 1968, Ernest Fitzgerald, a management analyst with the Department of the Air Force, testified before the Subcommittee on Economy in Government of the Joint Economic Committee of the Congress that a new transport plane, the C-5A, was substantially over its projected cost. This testimony apparently embarrassed the Department of Defense and the Air Force. Shortly thereafter, Fitzgerald's job was abolished in a reorganization of the Air Force. Fitzgerald brought suit against a number of officials of the Executive Branch, including petitioners Bryce Harlow and Alexander Butterfield. Fitzgerald alleged that Harlow and Butterfield had participated in a conspiracy to violate his constitutional and statutory rights by arranging to have him dismissed from his position in the Air Force in retaliation for his testimony. As evidence of Harlow's involvement, Fitzgerald relied on a series of conversations in which Harlow discussed Fitzgerald's dismissal with Air Force Secretary Robert Seamans. He also relied on a recorded conversation in which the President later voiced a tentative recollection that Harlow was "all for canning" Fitzgerald. As evidence against Butterfield, Fitzgerald cited a May 1969 White House memorandum. In it Butterfield claimed to have learned that Fitzgerald planned to "blow the whistle" on some "shoddy purchasing practices" by exposing these practices to public view. Fitzgerald also cited communications between Butterfield and Haldeman in December 1969 and January 1970 as evidence that Butterfield participated in the conspiracy to conceal his unlawful discharge and prevent his reemployment. Harlow asserted that Secretary Seamans had advised him that considerations of efficiency required Fitzgerald's removal by a reduction in force. Harlow had no reason to believe that a conspiracy existed. Butterfield stated that he was not involved in any decision concerning Fitzgerald's employment status until more than a month after the termination had been scheduled and announced publicly. Butterfield never communicated his views about Fitzgerald to any official of the Defense Department. The District Court denied the motions of Harlow and Butterfield for summary judgment based on absolute Presidential immunity or, alternatively, qualified immunity. The Court of Appeals for the District of Columbia Circuit affirmed in part and remanded. The Supreme Court granted certiorari.
View caseNo. Presidential immunity protects only official acts performed while in office. Unofficial conduct that took place before the President assumed office receives no special protection, so the suit may proceed in federal court.
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No. When the alleged conduct is unofficial and occurred before the defendant assumed office, the suit may proceed without impermissibly interfering with executive functions. Courts manage any burdens through ordinary case-management tools rather than automatic delay.
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No. The doctrine is limited to civil damages liability for official acts taken while in office. Private conduct that predates the presidency, such as misappropriation of source code or sexual harassment at a privately owned business, falls outside the protection.
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The motion should be denied. Because the conduct is unofficial and predates the presidency, the President has no constitutional immunity from the federal civil action, and the case proceeds subject to normal procedural protections.
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…subcommittee. The District Court denied the petitioner's motion to dismiss or for summary judgment on the ground of absolute presidential immunity. The Court of Appeals affirmed in part and remanded for further proceedings. The court held that the President is entitled to absolute immunity from damages liability for acts within his…