Absolute immunity

Although the U.S. president is frequently sued in his governmental capacity, he normally is not sued in his personal capacity as being personally liable.[11] In 1982, the Supreme Court held in Nixon v. Fitzgerald that the president enjoys absolute immunity from civil litigation for official acts undertaken while in office.[11] The Court suggested that this immunity was broad (though not limitless), applying to acts within the "outer perimeter" of the president's official duties.[11] Fifteen years after Fitzgerald, the Supreme Court held in Clinton v. Jones that the president does not possess absolute immunity from civil litigation surrounding acts he carried out that were not part of his official duties (which is often incorrectly presented as referring only to acts carried out before becoming president).[12][13] The 2020 Supreme Court decision in Trump v. Vance held that the president is subject to subpoenas in criminal prosecutions for personal conduct with the same legal threshold as anyone else.

The extent to which presidential immunity applies to criminal offenses is disputed. There are non-contemporaneous reports that Ulysses S. Grant was arrested for speeding while in office, although the historicity of this narrative is unclear.[14] There have been criminal investigations of three sitting presidents (Richard Nixon, Bill Clinton, and Donald Trump), but no prosecutions. (Trump was indicted two years after leaving office.) Memoranda from the Office of Legal Counsel issued in 1973 and 2000 internally prohibit the Department of Justice from prosecuting a president, which some legal scholars have criticized but others have endorsed.[15]

In 1976, the Supreme Court ruled in Imbler v. Pachtman that prosecutors cannot be sued for injuries caused by their official actions during trial.[16] For instance, a prosecutor cannot be sued for purposely withholding exculpatory evidence, even if that act results in a wrongful conviction.[17] Absolute prosecutorial immunity also exists for acts closely related to the criminal process' judicial phase.[16]

However, the Supreme Court has held that prosecutors do not enjoy absolute immunity when they act as investigators by engaging in activities associated more closely with police functions.[17] Further, the U.S. Court of Appeals for the First Circuit held in a 2019 decision that a prosecutor is not entitled to absolute prosecutorial discretion when performing purely administrative functions concerning a criminal prosecution.[18] Additionally, the Seventh Circuit has ruled that a prosecutor is not immune from liability for fabricating evidence during pre-trial investigations and then introducing that evidence at trial.[17]

Absolute judicial immunity applies when judges act in their judicial capacity.[19] A judge enjoys this immunity when they exceed their jurisdiction, but not when they act without any jurisdiction.[20] Judicial immunity also extends to non-judges when they act in a judicial or quasi-judicial capacity, such as a court-appointed referee in an equitable distribution case.[21] Determining whether someone is acting in a judicial capacity and thus deserves absolute immunity requires using a functional test; that is, one must determine whether the person is acting functionally similarly to a judge.[22]

In 2019, the Trump administration resisted efforts by House Democrats to compel Trump aides to testify, asserting that close aides to the president enjoy absolute immunity from providing testimony to Congress.[23] But a federal judge ruled against the administration, stating that close presidential advisors—even those working in national security—do not possess absolute immunity from testifying in congressional inquiries,[24] though these officials may invoke executive privilege whenever it is appropriate.[25] The U.S. Department of Justice is appealing the decision.[26] Previously, both Republican and Democratic presidential administrations had asserted absolute immunity in contexts like this, but the doctrine has been mostly untested in the judiciary.[23]