Great questions of constitutional law—how can the president be held accountable, whether the president is amenable to the judicial process, and the question of whether the president of the United States may be sued for civil damages—generate great interest and, occasionally, great rulings.
Former President Donald Trump’s assertion in federal court this week of “absolute” immunity from civil lawsuits arising out of the January 6, 2021 insurrection on Capitol Hill represents a fresh reminder of the Supreme Court’s landmark decision in 1997 in Clinton v. Jones on the scope of presidential immunity.
Clinton v. Jones was a landmark case, for its origins, substance and impact. In the end, the Supreme Court’s 9-0 holding that President Bill Clinton was not immune from civil suits for “unofficial” acts set in motion a chain of events that led to his impeachment.
While serving as President of the United States, Bill Clinton was sued by Paula Jones who alleged that, as an employee of the State of Arkansas, she was sexually harassed by the sitting Governor—Bill Clinton. President Clinton asserted that he was, by virtue of his office, entitled to “temporary immunity” from civil suits, and that Jones’s lawsuit should be delayed until his second term expired.
To his credit, President Clinton did not contend that he possessed absolute immunity against Ms. Jones’s civil suit seeking damages for sexual harassment. If he had engaged in the conduct alleged by Ms. Jones while serving as president, he would have found himself lacking a precedent for immunity since the Supreme Court, in 1982, in Nixon v. Fitzgerald, had held that a president enjoys “absolute immunity” for only “official” conduct. Only an extraordinarily brazen president would assert immunity in case of alleged sexual harassment. Clinton did not. Rather, he asked the Justices for “temporary immunity” until his presidential term ended.
In a historic ruling that represents significant threats to Donald Trump’s claim of absolute immunity from civil suits stemming from the January 6 violence at the Capitol, Justice John Paul Stevens, writing for the Court in Clinton v. Jones, rejected Clinton’s plea, declaring there is no constitutional immunity for a president engaged in “unofficial” conduct.
To be sure, as Justice Stevens observed, the president enjoys absolute immunity in circumstances involving the performance of “official” duties.” This protection serves the public interest, Stevens explained, since it enables presidents to perform their official functions and duties “without fear that a particular decision may give risen to personal liability.”
But that reasoning, Stevens declared, “provides no support for unofficial conduct.” Drawing on a previous ruling, Stevens wrote, “the sphere of protected action must be related closely to the immunity’s justifying purposes.” Immunity is grounded in “the nature of the function performed, not the identity of the actor who performed it.”
The Court’s landmark ruling in Clinton v. Jones thoroughly examined and rebuffed President Clinton’s arguments for immunity. There were no precedents available to Clinton. Complaints against the pre-presidential conduct of Theodore Roosevelt and Harry Truman were dismissed before they took office, and two cases against John F. Kennedy involving an auto accident during the 1960 presidential campaign were settled after he took office.
President Clinton contended that a civil trial would severely interfere with the president’s daily schedule, including meetings focusing on national security, domestic policy, and the performance of many presidential tasks and functions. But Justice Stevens pointed out that competent judicial management of a trial would prevent serious disruptions of the president’s duties. Depositions could be taken without unduly interrupting the president’s duties. Presidential testimony might even be recorded. Presidential attendance at the trial might be avoided. At bottom, Stevens declared, a president like Clinton, who played golf and attended various sporting and cultural events, could make time to participate in the civil proceedings.
The argument that a president should be immune from civil challenges on grounds of disruption and interference were flawed on their face, for a significant reason beyond those detailed by Justice Stevens. The Constitution provides for impeachment trials and the president and staff are expected to continue the work of the administration. In theory, a president so bedeviled by a civil lawsuit, could invoke the 25th Amendment and temporarily surrender the reins of authority to the vice-president.
The Court also dismissed Clinton’s contention that the separation of powers doctrine shielded him from a civil suit. Justice Stevens wrote, “it is settled law that the separation of powers doctrine does not bar every exercise of jurisdiction over the President of the United States.” Indeed, the judiciary, as history demonstrates, may determine the legality of the president’s official conduct, and it follows that it may determine the legality of his unofficial conduct.
The ruling in Clinton v. Jones presents some stiff challenges for former President Trump’s claim of immunity in three civil lawsuits stemming from the January 6 riot at the Capitol. During the hearing, U.S. District Judge Amit Mehta heard Trump’s attorney argue that the president enjoys “absolute” immunity,” since Trump was simply engaging in “political” speech on the ellipse, at the “Save America” rally, an act that is part of the normal duties of the president, in this case speaking to followers about governmental issues. He heard that Trump was not inciting an insurrection, but encouraging patriotic and “peaceful” behavior, despite telling the crowd to “fight like Hell,” and that if they didn’t fight like Hell, they wouldn’t have a country. He told his followers, falsely, that he would join them in a march to the Capitol building, to “make your voices heard.”
Judge Mehta seemed skeptical about the Trump’s claim that his speech was a normal part of presidential business. He asked Trump’s attorney where to draw the line between private and public speech, between official and unofficial conduct. And he, like millions of Americans, wondered why Trump had not denounced the violence at the Capitol, waiting some two hours before tweeting to followers that they should go home.
Judge Mehta’s will have to address the question of whether Trump’s speech was official or unofficial conduct. A conclusion that Trump’s speech was “official” means, as counsel for Democratic lawmakers and Capitol Police officers, told the court: “The president could promote treason in a public forum,” and by Trump’s reasoning, “the court would be powerless to assess whether his conduct is immune.”
David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.