CLINTON v. JONES
No. 95-1853
SUPREME COURT OF THE UNITED STATES
Argued January 13, 1997—Decided May 27, 1997
520 U.S. 681
Acting Solicitor General Dellinger argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Malcolm L. Stewart, and Douglas N. Letter.
JUSTICE STEVENS delivered the opinion of the Court.
This case raises a constitutional and a prudential question concerning the Office of the President of the United States. Respondent, a private citizen, seeks to recover damages from the current occupant of that office based on actions allegedly taken before his term began. The President submits that in all but the most exceptional cases the Constitution requires federal courts to defer such litigation until his term ends and that, in any event, respect for the office warrants such a stay. Despite the force of the arguments supporting the President‘s submissions, we conclude that they must be rejected.
I
Petitioner, William Jefferson Clinton, was elected to the Presidency in 1992, and reelected in 1996. His term of office expires on January 20, 2001. In 1991 he was the Governor of the State of Arkansas. Respondent, Paula Corbin Jones, is a resident of California. In 1991 she lived in Arkansas, and was an employee of the Arkansas Industrial Development Commission.
On May 6, 1994, she commenced this action in the United States District Court for the Eastern District of Arkansas by filing a complaint naming petitioner and Danny Ferguson, a former Arkansas State Police officer, as defendants. The
Those allegations principally describe events that are said to have occurred on the afternoon of May 8, 1991, during an official conference held at the Excelsior Hotel in Little Rock, Arkansas. The Governor delivered a speech at the conference; respondent—working as a state employee—staffed the registration desk. She alleges that Ferguson persuaded her to leave her desk and to visit the Governor in a business suite at the hotel, where he made “abhorrent”2 sexual advances that she vehemently rejected. She further claims that her superiors at work subsequently dealt with her in a hostile and rude manner, and changed her duties to punish her for rejecting those advances. Finally, she alleges that after petitioner was elected President, Ferguson defamed her by making a statement to a reporter that implied she had accepted petitioner‘s alleged overtures, and that various persons authorized to speak for the President publicly branded her a liar by denying that the incident had occurred.
Respondent seeks actual damages of $75,000 and punitive damages of $100,000. Her complaint contains four counts. The first charges that petitioner, acting under color of state law, deprived her of rights protected by the Constitution, in violation of Rev. Stat. § 1979,
II
In response to the complaint, petitioner promptly advised the District Court that he intended to file a motion to dismiss on grounds of Presidential immunity, and requested the court to defer all other pleadings and motions until after the immunity issue was resolved.4 Relying on our cases holding that immunity questions should be decided at the earliest possible stage of the litigation, 858 F. Supp. 902, 905 (ED Ark. 1994), our recognition of the “singular importance of the President‘s duties,” id., at 904 (quoting Nixon v. Fitzgerald, 457 U. S. 731, 751 (1982)), and the fact that the question did not require any analysis of the allegations of the complaint, 858 F. Supp., at 905, the court granted the request. Petitioner thereupon filed a motion “to dismiss . . . without prejudice and to toll any statutes of limitation [that may be applicable] until he is no longer President, at which time the plaintiff
The District Judge denied the motion to dismiss on immunity grounds and ruled that discovery in the case could go forward, but ordered any trial stayed until the end of petitioner‘s Presidency. 869 F. Supp. 690 (ED Ark. 1994). Although she recognized that a “thin majority” in Nixon v. Fitzgerald, 457 U. S. 731 (1982), had held that “the President has absolute immunity from civil damage actions arising out of the execution of official duties of office,” she was not convinced that “a President has absolute immunity from civil causes of action arising prior to assuming the office.”6 She was, however, persuaded by some of the reasoning in our opinion in Fitzgerald that deferring the trial if one were required would be appropriate.7 869 F. Supp., at 699-700. Relying in part on the fact that respondent had failed to bring her complaint until two days before the 3-year period of limitations expired, she concluded that the public interest in avoiding litigation that might hamper the President in conducting the duties of his office outweighed any demonstrated need for an immediate trial. Id., at 698-699.
Both parties appealed. A divided panel of the Court of Appeals affirmed the denial of the motion to dismiss, but because it regarded the order postponing the trial until the
In dissent, Judge Ross submitted that even though the holding in Fitzgerald involved official acts, the logic of the opinion, which “placed primary reliance on the prospect that the President‘s discharge of his constitutional powers and duties would be impaired if he were subject to suits for damages,” applies with equal force to this case. 72 F. 3d, at 1367. In his view, “unless exigent circumstances can be shown,” all private actions for damages against a sitting President must be stayed until the completion of his term. Ibid. In this case, Judge Ross saw no reason why the stay would prevent respondent from ultimately obtaining an adjudication of her claims.
In response to the dissent, Judge Beam wrote a separate concurrence. He suggested that a prolonged delay may well create a significant risk of irreparable harm to respondent because of an unforeseeable loss of evidence or the possible
III
The President, represented by private counsel, filed a petition for certiorari. The Acting Solicitor General, representing the United States, supported the petition, arguing that the decision of the Court of Appeals was “fundamentally mistaken” and created “serious risks for the institution of the Presidency.”9 In her brief in opposition to certiorari, respondent argued that this “one-of-a-kind case is singularly inappropriate” for the exercise of our certiorari jurisdiction because it did not create any conflict among the Courts of Appeals, it “does not pose any conceivable threat to the functioning of the Executive Branch,” and there is no precedent supporting the President‘s position.10
While our decision to grant the petition, 518 U. S. 1016 (1996), expressed no judgment concerning the merits of the case, it does reflect our appraisal of its importance. The
It is true that we have often stressed the importance of avoiding the premature adjudication of constitutional questions.11 That doctrine of avoidance, however, is applicable to the entire Federal Judiciary, not just to this Court, cf. Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), and comes into play after the court has acquired jurisdiction of a case. It does not dictate a discretionary denial of every certiorari petition raising a novel constitutional question. It does, however, make it appropriate to identify two important constitutional issues not encompassed within the questions presented by the petition for certiorari that we need not address today.12
Second, our decision rejecting the immunity claim and allowing the case to proceed does not require us to confront the question whether a court may compel the attendance of the President at any specific time or place. We assume that the testimony of the President, both for discovery and for use at trial, may be taken at the White House at a time that
IV
Petitioner‘s principal submission—that “in all but the most exceptional cases,” Brief for Petitioner i, the Constitution affords the President temporary immunity from civil damages litigation arising out of events that occurred before he took office—cannot be sustained on the basis of precedent.
Only three sitting Presidents have been defendants in civil litigation involving their actions prior to taking office. Complaints against Theodore Roosevelt and Harry Truman had been dismissed before they took office; the dismissals were affirmed after their respective inaugurations.15 Two companion cases arising out of an automobile accident were filed against John F. Kennedy in 1960 during the Presidential campaign.16 After taking office, he unsuccessfully argued that his status as Commander in Chief gave him a right to a stay under the Soldiers’ and Sailors’ Civil Relief Act of 1940,
The principal rationale for affording certain public servants immunity from suits for money damages arising out of
“As public servants, the prosecutor and the judge represent the interest of society as a whole. The conduct of their official duties may adversely affect a wide variety of different individuals, each of whom may be a potential source of future controversy. The societal interest in providing such public officials with the maximum ability to deal fearlessly and impartially with the public at large has long been recognized as an acceptable justification for official immunity. The point of immunity for such officials is to forestall an atmosphere of intimidation that would conflict with their resolve to perform their designated functions in a principled fashion.” Id., at 202-204.
That rationale provided the principal basis for our holding that a former President of the United States was “entitled to absolute immunity from damages liability predicated on his official acts,” Fitzgerald, 457 U. S., at 749. See id., at 752 (citing Ferri v. Ackerman). Our central concern was to
This reasoning provides no support for an immunity for unofficial conduct. As we explained in Fitzgerald, “the sphere of protected action must be related closely to the immunity‘s justifying purposes.” Id., at 755. Because of the President‘s broad responsibilities, we recognized in that case an immunity from damages claims arising out of official acts extending to the “outer perimeter of his authority.” Id., at 757. But we have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity. See id., at 759 (Burger, C. J., concurring) (noting that “a President, like Members of Congress, judges, prosecutors, or congressional aides—all having absolute immunity—are not immune for acts outside official duties“); see also id., at 761, n. 4.
Moreover, when defining the scope of an immunity for acts clearly taken within an official capacity, we have applied a functional approach. “Frequently our decisions have held that an official‘s absolute immunity should extend only to acts in performance of particular functions of his office.” Id., at 755. Hence, for example, a judge‘s absolute immunity does not extend to actions performed in a purely administra-
Petitioner‘s effort to construct an immunity from suit for unofficial acts grounded purely in the identity of his office is unsupported by precedent.
V
We are also unpersuaded by the evidence from the historical record to which petitioner has called our attention. He points to a comment by Thomas Jefferson protesting the subpoena duces tecum Chief Justice Marshall directed to him in the Burr trial,20 a statement in the diaries kept by Senator William Maclay of the first Senate debates, in which then-Vice President John Adams and Senator Oliver Ellsworth are recorded as having said that “the President personally [is] not . . . subject to any process whatever,” lest it be “put . . . in the power of a common Justice to exercise any Authority over him and Stop the Whole Machine of Government,”21 and to a quotation from Justice Story‘s Commentaries on the Constitution.22 None of these sources sheds much light on the question at hand.23
In the end, as applied to the particular question before us, we reach the same conclusion about these historical materials that Justice Jackson described when confronted with an issue concerning the dimensions of the President‘s power.
“Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharoah. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side . . . . They largely cancel each other.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 634-635 (1952) (concurring opinion).
VI
Petitioner‘s strongest argument supporting his immunity claim is based on the text and structure of the Constitution. He does not contend that the occupant of the Office of the President is “above the law,” in the sense that his conduct is entirely immune from judicial scrutiny.24 The President argues merely for a postponement of the judicial proceedings that will determine whether he violated any law. His argument is grounded in the character of the office that was created by Article II of the Constitution, and relies on separation-of-powers principles that have structured our constitutional arrangement since the founding.
As a starting premise, petitioner contends that he occupies a unique office with powers and responsibilities so vast and important that the public interest demands that he devote his undivided time and attention to his public duties. He submits that—given the nature of the office—the doctrine of separation of powers places limits on the authority of the
We have no dispute with the initial premise of the argument. Former Presidents, from George Washington to George Bush, have consistently endorsed petitioner‘s characterization of the office.25 After serving his term, Lyndon Johnson observed: “Of all the 1,886 nights I was President, there were not many when I got to sleep before 1 or 2 a.m., and there were few mornings when I didn‘t wake up by 6 or 6:30.”26 In 1967, the Twenty-fifth Amendment to the Constitution was adopted to ensure continuity in the performance of the powers and duties of the office;27 one of the sponsors of that Amendment stressed the importance of providing that “at all times” there be a President “who has complete control and will be able to perform” those duties.28 As Justice Jackson has pointed out, the Presidency concentrates executive authority “in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S., at 653 (concurring opinion). We have, in short, long recognized the “unique position in the constitutional scheme” that this office occupies. Fitzgerald,
It does not follow, however, that separation-of-powers principles would be violated by allowing this action to proceed. The doctrine of separation of powers is concerned with the allocation of official power among the three coequal branches of our Government. The Framers “built into the tripartite Federal Government . . . a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other.” Buckley v. Valeo, 424 U. S., at 122.30 Thus, for example, the Congress may not exercise the judicial power to revise final judgments, Plaut v. Spendthrift
Of course the lines between the powers of the three branches are not always neatly defined. See Mistretta v. United States, 488 U.S. 361, 380-381 (1989).35 But in this case there is no suggestion that the Federal Judiciary is being asked to perform any function that might in some way be described as “executive.” Respondent is merely asking the courts to exercise their core
Rather than arguing that the decision of the case will produce either an aggrandizement of judicial power or a narrowing of executive power, petitioner contends that—as a byproduct of an otherwise traditional exercise of judicial power—burdens will be placed on the President that will hamper the performance of his official duties. We have recognized that “[e]ven when a branch does not arrogate power to itself . . . the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties.” Loving v. United States, 517 U.S. 748, 757 (1996); see also Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977). As a factual matter, petitioner contends that this particular case—as well as the potential
Petitioner‘s predictive judgment finds little support in either history or the relatively narrow compass of the issues raised in this particular case. As we have already noted, in the more than 200-year history of the Republic, only three sitting Presidents have been subjected to suits for their private actions.36 See supra, at 692. If the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the Presidency. As for the case at hand, if properly managed by the District Court, it appears to us highly unlikely to occupy any substantial amount of petitioner‘s time.
Of greater significance, petitioner errs by presuming that interactions between the Judicial Branch and the Executive, even quite burdensome interactions, necessarily rise to the level of constitutionally forbidden impairment of the Executive‘s ability to perform its constitutionally mandated functions. “[O]ur . . . system imposes upon the Branches a degree of overlapping responsibility, a duty of interdependence as well as independence the absence of which ‘would preclude the establishment of a Nation capable of governing itself effectively.‘” Mistretta, 488 U.S., at 381 (quoting Buck-ley, 424 U.S., at 121). As Madison explained, separation of powers does not mean that the branches “ought to have no partial agency in, or no controul over the acts of each other.”37 The fact that a federal court‘s exercise of its traditional
First, we have long held that when the President takes official action, the Court has the authority to determine whether he has acted within the law. Perhaps the most dramatic example of such a case is our holding that President Truman exceeded his constitutional authority when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation‘s steel mills in order to avert a national catastrophe. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Despite the serious impact of that decision on the ability of the Executive Branch to accomplish its assigned mission, and the substantial time that the President must necessarily have devoted to the matter as a result of judicial involvement, we exercised our
Second, it is also settled that the President is subject to judicial process in appropriate circumstances. Although Thomas Jefferson apparently thought otherwise, Chief Justice Marshall, when presiding in the treason trial of Aaron Burr, ruled that a subpoena duces tecum could be directed
Sitting Presidents have responded to court orders to provide testimony and other information with sufficient frequency that such interactions between the Judicial and Executive Branches can scarcely be thought a novelty. President Monroe responded to written interrogatories, see Rotunda, Presidents and Ex-Presidents as Witnesses: A Brief Historical Footnote, 1975 U. Ill. L. Forum 1, 5-6, President Nixon—as noted above—produced tapes in response to a subpoena
In sum, “[i]t is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States.” Fitzgerald, 457 U.S., at 753-754. If the Judiciary may severely burden the Executive Branch by reviewing the legality of the President‘s official conduct, and if it may direct appropriate process to the President himself, it must follow that the federal courts have power to determine the legality of his unofficial conduct. The burden on the President‘s time and energy that is a mere byproduct of such review surely cannot be considered as onerous as the direct burden imposed by judicial review and the occasional invalidation of his official actions.40 We therefore hold that the doctrine of separation of powers does not
The reasons for rejecting such a categorical rule apply as well to a rule that would require a stay “in all but the most exceptional cases.” Brief for Petitioner i. Indeed, if the Framers of the Constitution had thought it necessary to protect the President from the burdens of private litigation, we think it far more likely that they would have adopted a categorical rule than a rule that required the President to litigate the question whether a specific case belonged in the “exceptional case” subcategory. In all events, the question whether a specific case should receive exceptional treatment is more appropriately the subject of the exercise of judicial discretion than an interpretation of the Constitution. Accordingly, we turn to the question whether the District Court‘s decision to stay the trial until after petitioner leaves office was an abuse of discretion.
VII
The Court of Appeals described the District Court‘s discretionary decision to stay the trial as the “functional equivalent” of a grant of temporary immunity. 72 F.3d, at 1361, n. 9. Concluding that petitioner was not constitutionally entitled to such an immunity, the court held that it was error to grant the stay. Ibid. Although we ultimately conclude that the stay should not have been granted, we think the issue is more difficult than the opinion of the Court of Appeals suggests.
Strictly speaking the stay was not the functional equivalent of the constitutional immunity that petitioner claimed, because the District Court ordered discovery to proceed. Moreover, a stay of either the trial or discovery might be justified by considerations that do not require the recognition of any constitutional immunity. The District Court has broad discretion to stay proceedings as an incident to its power to control its own docket. See, e. g., Landis v. North American Co., 299 U.S. 248, 254 (1936). As we have explained, “[e]specially in cases of extraordinary public moment, [a plaintiff] may be required to submit to delay not immoderate in extent and not oppressive in its consequences if the public welfare or convenience will thereby be promoted.” Id., at 256. Although we have rejected the argument that the potential burdens on the President violate separation-of-powers principles, those burdens are appropriate matters for the District Court to evaluate in its management of the case. The high respect that is owed to the office of the Chief Executive, though not justifying a rule of categorical immunity, is a matter that should inform the conduct of the entire proceeding, including the timing and scope of discovery.41
Nevertheless, we are persuaded that it was an abuse of discretion for the District Court to defer the trial until after the President leaves office. Such a lengthy and categorical stay takes no account whatever of the respondent‘s interest in bringing the case to trial. The complaint was filed within the statutory limitations period—albeit near the end of that period—and delaying trial would increase the danger of
The decision to postpone the trial was, furthermore, premature. The proponent of a stay bears the burden of establishing its need. Id., at 255. In this case, at the stage at which the District Court made its ruling, there was no way to assess whether a stay of trial after the completion of discovery would be warranted. Other than the fact that a trial may consume some of the President‘s time and attention, there is nothing in the record to enable a judge to assess the potential harm that may ensue from scheduling the trial promptly after discovery is concluded. We think the District Court may have given undue weight to the concern that a trial might generate unrelated civil actions that could conceivably hamper the President in conducting the duties of his office. If and when that should occur, the court‘s discretion would permit it to manage those actions in such fashion (including deferral of trial) that interference with the President‘s duties would not occur. But no such impingement upon the President‘s conduct of his office was shown here.
VIII
We add a final comment on two matters that are discussed at length in the briefs: the risk that our decision will generate a large volume of politically motivated harassing and frivolous litigation, and the danger that national security concerns might prevent the President from explaining a legitimate need for a continuance.
We are not persuaded that either of these risks is serious. Most frivolous and vexatious litigation is terminated at the pleading stage or on summary judgment, with little if any personal involvement by the defendant. See
If Congress deems it appropriate to afford the President stronger protection, it may respond with appropriate legislation. As petitioner notes in his brief, Congress has enacted more than one statute providing for the deferral of civil litigation to accommodate important public interests. Brief for Petitioner 34-36. See, e. g.,
The Federal District Court has jurisdiction to decide this case. Like every other citizen who properly invokes that jurisdiction, respondent has a right to an orderly disposition of her claims. Accordingly, the judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE BREYER, concurring in the judgment.
I agree with the majority that the Constitution does not automatically grant the President an immunity from civil lawsuits based upon his private conduct. Nor does the “doctrine of separation of powers . . . require federal courts to stay” virtually “all private actions against the President until he leaves office.” Ante, at 705-706. Rather, as the Court of Appeals stated, the President cannot simply rest upon the claim that a private civil lawsuit for damages will “interfere with the constitutionally assigned duties of the Executive Branch . . . without detailing any specific responsibilities or explaining how or the degree to which they are affected by the suit.” 72 F.3d 1354, 1361 (CA8 1996). To obtain a postponement the President must “bea[r] the burden of establishing its need.” Ante, at 708.
In my view, however, once the President sets forth and explains a conflict between judicial proceeding and public duties, the matter changes. At that point, the Constitution permits a judge to schedule a trial in an ordinary civil damages action (where postponement normally is possible without overwhelming damage to a plaintiff) only within the constraints of a constitutional principle—a principle that forbids a federal judge in such a case to interfere with the President‘s discharge of his public duties. I have no doubt that the Constitution contains such a principle applicable to civil suits, based upon
I recognize that this case does not require us now to apply the principle specifically, thereby delineating its contours; nor need we now decide whether lower courts are to apply it directly or categorically through the use of presumptions or rules of administration. Yet I fear that to disregard it now may appear to deny it. I also fear that the majority‘s description of the relevant precedents de-emphasizes the extent to which they support a principle of the President‘s independent authority to control his own time and energy, see, e. g., ante, at 693, 694 (describing the “central concern” of Nixon v. Fitzgerald, 457 U.S. 731 (1982), as “to avoid rendering the President ‘unduly cautious‘“); ante, at 695, 696, and n. 23 (describing statements by Story, Jefferson, Adams, and Ellsworth as providing “little” or “no substantial support” for the President‘s position). Further, if the majority is wrong in predicting the future infrequency of private civil litigation against sitting Presidents, ante, at 702, acknowledgment and future delineation of the constitutional principle will prove a practically necessary institutional safeguard. For these reasons, I think it important to explain how the Constitution‘s text, history, and precedent support this principle of judicial noninterference with Presidential functions in ordinary civil damages actions.
I
The Constitution states that the “executive Power shall be vested in a President.”
The Founders created this equivalence by consciously deciding to vest Executive authority in one person rather than several. They did so in order to focus, rather than to spread, Executive responsibility thereby facilitating accountability. They also sought to encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Constitution divides among many. Compare
The authority explaining the nature and importance of this decision is legion. See, e. g., J. Locke, Second Treatise of Civil Government § 144 (J. Gough ed. 1947) (desirability of a perpetual Executive); 1 W. Blackstone, Commentaries *242-*243 (need for single Executive); The Federalist No. 70, p. 423 (C. Rossiter ed. 1961) (A. Hamilton) (Executive “[e]nergy” needed for security, “steady administration of the laws,” “protection of property,” “justice,” and protection of “liberty“); Ellsworth, The Landholder, VI, in Essays on the Constitution 161, 163 (P. Ford ed. 1892) (“supreme executive should be one person, and unfettered otherwise than by the laws he is to execute“); Morrison v. Olson, 487 U.S. 654, 698-699 (1988) (SCALIA, J., dissenting) (describing history); id., at 705 (describing textual basis); id., at 729 (describing
For present purposes, this constitutional structure means that the President is not like Congress, for Congress can function as if it were whole, even when up to half of its members are absent, see
More importantly, these constitutional objectives explain why a President, though able to delegate duties to others, cannot delegate ultimate responsibility or the active obligation to supervise that goes with it. And the related constitutional equivalence between President, Congress, and the Judiciary means that judicial scheduling orders in a private civil case must not only take reasonable account of, say, a particularly busy schedule, or a job on which others critically depend, or an underlying electoral mandate. They must also reflect the fact that interference with a President‘s ability to carry out his public responsibilities is constitutionally equivalent to interference with the ability of the entirety of Congress, or the Judicial Branch, to carry out its public obligations.
II
The leading case regarding Presidential immunity from suit is Nixon v. Fitzgerald. Before discussing Fitzgerald, it is helpful to understand the historical precedent on which it
A
Three of the historical sources this Court cited in Fitzgerald, 457 U.S., at 749, 750-752, n. 31—a commentary by Joseph Story, an argument attributed to John Adams and Oliver Ellsworth, and a letter written by Thomas Jefferson—each make clear that this is so.
First, Joseph Story wrote in his Commentaries:
“There are . . . incidental powers, belonging to the executive department, which are necessarily implied from the nature of the functions, which are confided to it. Among those, must necessarily be included the power to perform them, without any obstruction or impediment whatsoever. The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office; and for this purpose his person must be deemed, in civil cases at least, to possess an official inviolability.” 3 J. Story, Commentaries on the Constitution of the United States § 1563, pp. 418-419 (1833) (emphasis added), quoted in Fitzgerald, supra, at 749.
As interpreted by this Court in Nixon v. Fitzgerald, the words “for this purpose” would seem to refer to the President‘s need for “official inviolability” in order to “perform” the duties of his office without “obstruction or impediment.” As so read, Story‘s commentary does not explicitly define the
Since Fitzgerald did not involve a physical constraint, the Court‘s reliance upon Justice Story‘s commentary makes clear, in the Court‘s view, that the commentary does not limit the scope of “inviolability” to an immunity from a physical imprisonment, physical detention, or physical “arrest“—a now abandoned procedure that permitted the arrest of certain civil case defendants (e. g., those threatened by bankruptcy) during a civil proceeding.
I would therefore read Story‘s commentary to mean what it says, namely, that
Second, during the first Congress, then-Vice President John Adams and then-Senator Oliver Ellsworth expressed a view of an applicable immunity far broader than any currently asserted. Speaking of a sitting President, they said that the “President, personally, was not the subject to any process whatever . . . For [that] would . . . put it in the power of a common justice to exercise any authority over him and stop the whole machine of Government.” 457 U.S., at 751, n. 31 (quoting Journal of William Maclay 167 (E. Maclay ed. 1890) (Sept. 26 journal entry reporting exchange between Sen. Maclay, Adams, and Ellsworth)). They
Third, in 1807, a sitting President, Thomas Jefferson, during a dispute about whether the federal courts could subpoena his presence in a criminal case, wrote the following to United States Attorney George Hay:
“The leading principle of our Constitution is the independence of the Legislature, executive and judiciary of each other, and none are more jealous of this than the judiciary. But would the executive be independent of the judiciary, if he were subject to the commands of the latter, & to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south & east to west, and withdraw him entirely from his constitutional duties?” 10 Works of Thomas Jefferson 404, n. (P. Ford ed. 1905) (letter of June 20, 1807, from President Thomas Jefferson to United States Attorney George Hay), quoted in Fitzgerald, supra, at 751, n. 31.
“To comply with such calls would leave the nation without an executive branch, whose agency, nevertheless, is understood to be so constantly necessary, that it is the sole branch which the constitution requires to be always in function. It could not then mean that it should be withdrawn from its station by any co-ordinate authority.” 10 Works of Thomas Jefferson, at 401 (letter of June 17, 1807, from Thomas Jefferson to George Hay).
Jefferson, like Adams and Ellsworth, argued strongly for an immunity from both criminal and civil judicial process—an immunity greater in scope than any immunity, or any special scheduling factor, now at issue in the civil case before us. The significance of his views for present purposes lies in his conviction that the Constitution protected a sitting President from litigation that would “withdraw” a President from his current “constitutional duties.” That concern may not have applied to Mr. Fitzgerald‘s 1982 case against a former President, but it is at issue in the current litigation.
Precedent that suggests to the contrary—that the Constitution does not offer a sitting President significant protections from potentially distracting civil litigation—consists of the following: (1) In several instances sitting Presidents have given depositions or testified at criminal trials, and (2) this Court has twice authorized the enforcement of subpoenas seeking documents from a sitting President for use in a criminal case.
I agree with the majority that these precedents reject any absolute Presidential immunity from all court process. But they do not cast doubt upon Justice Story‘s basic conclusion that “in civil cases,” a sitting President “possess[es] an official inviolability” as necessary to permit him to “perform” the duties of his office without “obstruction or impediment.”
The remaining precedent to which the majority refers does not seem relevant in this case. That precedent, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952), concerns official action. And any Presidential time spent dealing with, or action taken in response to, that kind of case is part of a President‘s official duties. Hence court review in such circumstances could not interfere with, or distract from, official duties. Insofar as a court orders a President, in any such a proceeding, to act or to refrain from action, it defines, or determines, or clarifies the legal scope of an official duty. By definition (if the order itself is lawful), it cannot impede, or obstruct, or interfere with the President‘s basic task—the lawful exercise of his Executive authority. Indeed, if constitutional principles counsel caution when judges consider an order that directly requires the President properly
B
Case law, particularly, Nixon v. Fitzgerald, strongly supports the principle that judges hearing a private civil damages action against a sitting President may not issue orders that could significantly distract a President from his official duties. In Fitzgerald, the Court held that former President Nixon was absolutely immune from civil damages lawsuits based upon any conduct within the “outer perimeter” of his official responsibilities. 457 U.S., at 756. The holding rested upon six determinations that are relevant here.
First, the Court found that the Constitution assigns the President singularly important duties (thus warranting an “absolute,” rather than a “qualified,” immunity). Id., at 750-751. Second, the Court held that “recognition of immunity” does not require a “specific textual basis” in the Constitution. Id., at 750, n. 31. Third, although physical constraint of the President was not at issue, the Court nevertheless considered Justice Story‘s constitutional analysis, discussed supra, at 714-715, “persuasive.” 457 U.S., at 749. Fourth, the Court distinguished contrary precedent on the ground that it involved criminal, not civil, proceedings. Id., at 754, and n. 37. Fifth, the Court‘s concerns encompassed the fact that “the sheer prominence of the President‘s office” could make him “an easily identifiable target for suits for civil damages.” Id., at 752-753. Sixth, and most important, the Court rested its conclusion in important part upon
The majority argues that this critical, last-mentioned, feature of the case is dicta. Ante, at 694, n. 19. In the majority‘s view, since the defendant was a former President, the lawsuit could not have distracted him from his official duties; hence the case must rest entirely upon an alternative concern, namely, that a President‘s fear of civil lawsuits based upon his official duties could distort his official decisionmaking. The majority, however, overlooks the fact that Fitzgerald set forth a single immunity (an absolute immunity) applicable both to sitting and former Presidents. Its reasoning focused upon both. Its key paragraph, explaining why the President enjoys an absolute immunity rather than a qualified immunity, contains seven sentences, four of which focus primarily upon time and energy distraction and three of which focus primarily upon official decision distortion. Indeed, that key paragraph begins by stating:
“Because of the singular importance of the President‘s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.” 457 U.S., at 751.
Moreover, the Court, in numerous other cases, has found the problem of time and energy distraction a critically important consideration militating in favor of a grant of immunity. See, e. g., Harlow v. Fitzgerald, 457 U.S. 800, 817-818 (1982) (qualified immunity for Presidential assistants based in part on “costs of trial” and “burdens of broad-reaching discovery” that are “peculiarly disruptive of effective government“); Imbler v. Pachtman, 424 U.S. 409, 423 (1976) (absolute immunity of prosecutors based in part upon concern about “deflection of the prosecutor‘s energies from his public duties“); Tenney v. Brandhove, 341 U.S. 367, 377 (1951) (absolute im-
It is not surprising that the Court‘s immunity-related case law should rely on both distraction and distortion, for the ultimate rationale underlying those cases embodies both concerns. See Pierson v. Ray, 386 U.S. 547, 554 (1967) (absolute judicial immunity is needed because of “burden” of litigation, which leads to “intimidation“); Bradley v. Fisher, 13 Wall. 335, 349 (1872) (without absolute immunity a judge‘s “office [would] be degraded and his usefulness destroyed,” and he would be forced to shoulder “burden” of keeping full records for use in defending against suits). The cases ultimately turn on an assessment of the threat that a civil damages lawsuit poses to a public official‘s ability to perform his job properly. And, whether they provide an absolute immunity, a qualified immunity, or merely a special procedure, they ultimately balance consequent potential public harm against private need. Distraction and distortion are equally important ingredients of that potential public harm. Indeed, a lawsuit that significantly distracts an official from his public duties can distort the content of a public decision just as can a threat of potential future liability. If the latter concern can justify an “absolute” immunity in the case of a Pres-
III
The majority points to the fact that private plaintiffs have brought civil damages lawsuits against a sitting President only three times in our Nation‘s history; and it relies upon the threat of sanctions to discourage, and “the court‘s discretion” to manage, such actions so that “interference with the President‘s duties would not occur.” Ante, at 708. I am less sanguine. Since 1960, when the last such suit was filed, the number of civil lawsuits filed annually in Federal District Courts has increased from under 60,000 to about 240,000, see Administrative Office of the United States Courts, Statistical Tables for the Federal Judiciary 27 (1995); Annual Report of the Director of the Administrative Office of the United States Courts—1960, p. 224 (1961); the number of federal district judges has increased from 233 to about 650, see Administrative Office of United States Courts, Judicial Business of United States Courts 7 (1994); Annual Report of the Director of the Administrative Office of the United States Courts—1960, supra, at 205; the time and expense associated with both discovery and trial have increased, see, e. g., Bell, Varner, & Gottschalk, Automatic Disclosure in Discovery—The Rush To Reform, 27 Ga. L. Rev. 1, 9-11 (1992); see also S. Rep. No. 101-416, p. 1 (1990); Judicial Improvements Act of 1990,
I concede the possibility that district courts, supervised by the Courts of Appeals and perhaps this Court, might prove able to manage private civil damages actions against sitting Presidents without significantly interfering with the discharge of Presidential duties—at least if they manage those actions with the constitutional problem in mind. Nonetheless, predicting the future is difficult, and I am skeptical. Should the majority‘s optimism turn out to be misplaced, then, in my view, courts will have to develop administrative rules applicable to such cases (including postponement rules of the sort at issue in this case) in order to implement the basic constitutional directive. A Constitution that separates powers in order to prevent one branch of Government from significantly threatening the workings of another could not grant a single judge more than a very limited power to second-guess a President‘s reasonable determination (announced in open court) of his scheduling needs, nor could it permit the issuance of a trial scheduling order that would significantly interfere with the President‘s discharge of his duties—in a private civil damages action the trial of which might be postponed without the plaintiff suffering enormous harm. As Madison pointed out in The Federalist No. 51: “The great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack.” Id., at 321-322 (emphasis added). I agree with the majority‘s determination that a constitutional defense must await a more specific showing of need; I do not agree with what I
IV
This case is a private action for civil damages in which, as the District Court here found, it is possible to preserve evidence and in which later payment of interest can compensate for delay. The District Court in this case determined that the Constitution required the postponement of trial during the sitting President‘s term. It may well be that the trial of this case cannot take place without significantly interfering with the President‘s ability to carry out his official duties. Yet, I agree with the majority that there is no automatic temporary immunity and that the President should have to provide the District Court with a reasoned explanation of why the immunity is needed; and I also agree that, in the absence of that explanation, the court‘s postponement of the trial date was premature. For those reasons, I concur in the result.