The government asked the Supreme Court yesterday to prohibit citizens from suing the president for damages when he violates their constitutional rights.
Solicitor General Wade H. McCree Jr. also said an absolute immunity from damage suits should extend to government aides acting on presidential instructions.
The request came as the court heard arguments in the case of former national security official Morton Halperin, who sued Richard Nixon, Henry A. Kissinger, H. R. Haldeman and John Mitchell for tapping his telephones as they searched for national security leaks to the press in 1969.
McCree said that such suits inhibit government decision making and should be prohibited to assure that government officials are "motivated by concern for the good of the nation and not the fear of being sued for damages."
The privilege sought for the White House is already enjoyed by judges and members of Congress, though the court has in recent years stripped lesser officials of their protections. The immunity does not prevent criminal prosecution of officials but completely blocks any effort to hold them personally liable for violations of constitutional rights. This removes what civil libertarians regard as an effective deterrent to such violations.
"A president could go out and put his hand over the mouth of a citizen he disagreed with and not be sued," said Justice Potter Stewart in an exchange with American Civil Liberties Union attorney Mark Lynch, who represents Halperin.
With absolute immunity "he could torture someone" without being sued for damages, Lynch responded. "The higher the official is," Lynch said, "the greater the capacity to inflict harm and the greater is the need for a deterrent. The presumption in this country is that no man is above the law."
Halperin's and his family's phones were tapped after Kissinger, then Nixon's national security adviser, placed his name on a list of suspects in the leak of information about the secret bombing of Cambodia. Lynch said the eavesdropping continued for 21 months, long after the White House had exonerated Halperin of leaking, and for that reason represented an unjustified intrusion on Halperin's constitutional rights. The D.C. Circuit Court of Appeals agreed.
While the damages in this case were only nominal, it was the first time in history the president had been held liable for damages, according to the solicitor general.
McCree said the immunity should extend to aides of the president and department heads, as long as they are acting under express presidential direction, and even down to the level of the FBI agents who installed the taps.
Without the absolute immunity, he said, suits would proliferate, tying up the time of the president and his aides, jeopardizing sensitive information by subjecting it to courtroom exposure, and tainting the decisions of high-level officials with a concern for the personal financial and judicial consequences. "It would inhibit the fearless conduct" of government, he said.
Lynch argued that the president should enjoy only a limited immunity that protects official actions taken in "good faith" but not egregious constitutional violations.