THE SUPREME COURT has decided that the president is immune from civil suits for damages in connection with all acts "within the outer perimeter of his official responsibility." The case in question was brought by Ernest Fitzgerald, the Pentagon "whistle blower," seeking damages for his wrongful firing from former president Richard Nixon and two of his White House aides, Bryce Harlow and Alexander Butterfield. The case against Mr. Harlow and Mr. Butterfield was returned to district court, where Mr. Fitzgerald will have to prove that they violated his "clearly established statutory or constitutional rights"; if he can. As to the former president, however, a majority of the justices held that he is completely immune from this kind of suit.
In English common law, the king could not be sued, and until the passage of the Federal Tort Claims Act in 1946, the U.S. government was immune from most civil liability. Americans living in today's litigious climate may find it hard to believe, but if you were hit by a mail truck 60 years ago, you could not sue the Post Office for negligence. Nor, traditionally, could you sue charitable institutions such as hospitals. Even now that government and other previously protected institutions have consented to be sued, some immunities remain. You can sue the government for negligence, for example, but not for damages arising out of discretionary acts, such as hiring and firing personnel. Soldiers cannot sue the government for injuries received in service. Judges and prosecutors cannot be sued for their actions in the courtroom, and members of Congress are immune from suits arising out of their work on the floor of the House or Senate. The few suits that had been filed against presidents had all been summarily dismissed.
The Fitzgerald case was the first of its kind to have been seriously considered by the lower courts. Mr. Fitzgerald claims that it would not have set a significant precedent since Mr. Nixon's conduct in maliciously firing him in violation of his rights was egregious and unique. The court did not accept that optimistic assurance, though, and took seriously Mr. Nixon's prediction that, if this suit succeeded, the White House lawn would be aswarm with process- servers bearing summonses in civil damage actions brought by "political foes, publicity-seekers and self-chosen private attorneys general." Justice Powell, writing for the majority, noted that, without immunity, presidents would hesitate to exercise their judgment in a manner that might injure a single individual "even when the public interest required bold and unhesitating action."
Other sanctions against a president are still available. Criminal acts can be prosecuted, and official misconduct can be grounds for impeachment. The court points out that a president "is under constant scrutiny by the press and vigilant oversight by Congress" and has an incentive to avoid misconduct in order to win reelection and ensure a respected place in history.
While the issue of civil liability appears to have been settled by this decision, a few questions remain. Will Congress try to narrow this immunity-- at least one justice, Mr. Powell, believes this decision does not foreclose such an attempt--and if so, what kind of suits should it allow? Four dissenting justices believe that any immunity should be limited to certain official acts rather than given to the president as an individual. Legal experts differ as to whether criminal acts committed by a president can ever fall within the boundaries of official duty. Conspiracy to break and enter in order to steal documents, for example, is a crime for which a president is subject to prosecution. Does this decision protect him from civil liability as well, even for these acts?
Finally, will Congress provide some other recourse for persons who are injured by a president's conduct and who cannot now sue him personally? Reinstatement with back pay after 12 years of litigation may not be sufficient compensation for people like Ernest Fitzgerald. If it is in the interest of society to protect certain government officials from civil liability, it may also be the responsibility of society to compensate those who are injured by discretionary acts of those officials as well.