Picking up on a theme below.
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It’s time to think hard about Nixon v. Fitzgerald.
Fitzgerald isn’t really part of the national security law canon; it’s a 1982 Supreme Court decision that is often cited for the proposition that the President has “absolute immunity” (meaning he cannot be sued in his personal capacity) for any acts he undertakes while he is President.
We’re about to experience a flood of litigation testing what the case really means.
For most of American history, a sitting President’s immunity from civil litigation has been a subject of academic curiosity, but little real-world interest. Presidents get sued daily, of course, but usually in their capacity as head of the federal government, where—for the most part—Congress has waived any immunity. They generally don’t get sued in a manner that seeks to hold them personally liable.
Fitzgerald is one of the reasons. Although the Court held 15 years after deciding Fitzgerald, in Clinton v. Jones, that the same principle didn’t immunize a sitting President from civil litigation (in federal court, anyway) arising out of acts he took before assuming office, the working assumption for the past 35 years has been that inauguration is a bright constitutional line, and that the President is categorically free from civil liability for misdeeds that take place on the far side of his oath.
The problem is that Fitzgerald does not quite say what it’s cited to mean—and neither does Jones. And Donald Trump’s peculiar personality and bizarre mixing of his personal and official personas seems sure to test the parameters of the extant doctrine.
Consider: He is already being sued for incitement to violence at a campaign rally. He has, according to more than a dozen women, sexually harassed or assaulted them—and one of his accusers is now suing him for defamation after he claimed that she fabricated the charges. He says things about people using his Twitter account, like that they illegally “wire tapped” him, that might normally give rise to a defamation suit. And he is, well, careless about certain ethics rules and business practices in a fashion that might normally create exposure—even while maintaining giant business holdings as President.
