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What 'absolute immunity' is - and is not

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As the impeachment hearings proceed against President Donald Trump and as his efforts to block the Manhattan district attorney from obtaining his tax records seem headed to the Supreme Court, his legal team has made an unusual legal claim of “absolute immunity.”

In the impeachment process, the White House has asserted that senior advisers who work with the president have absolute immunity from subpoenas issued by the House of Representatives. In short, they can ignore them so long as the subpoena relates to the adviser’s official duties.

The same doctrine has been raised in the House lawsuit against former White House Counsel Don McGahn. His name appears literally hundreds of times in the report by special counsel Robert Mueller, and McGahn is quoted as stating that Trump tried to thwart Mueller's investigation into Russian interference in the 2016 election. The case was argued in federal court last month, and the Justice Department contended that courts have no power to act in a dispute between Congress and the president. In other words, the House can never invoke the power of the courts against the executive branch because of absolute immunity.

In the investigation of Trump's hush-money payments to porn star Stormy Daniels during the 2016 presidential campaign, Manhattan District Attorney Cyrus Vance has subpoenaed Mazars, the accounting firm that has handled Trump’s personal and business taxes. In response, Trump sued to challenge Mazars’ ability to comply. This is a confounding case: Six of the eight years of returns being sought precede the Trump presidency, and the claims in the case involve possible fraud in the filing of Trump’s business taxes. The claims have nothing to do with the presidency. But in the view of Trump’s legal team, a sitting president is not only immune from indictment or prosecution, he or she also cannot be the subject of a federal or state criminal investigation.

Trump lost this case in the trial court. On appeal to the Second Circuit, Judge Denny Chin asked Trump’s lawyer a seemingly frivolous but, in fact, essential question. Could Trump, as he bragged during his campaign, “shoot somebody on Fifth Avenue” and be immune from criminal investigation? Equivocating, the lawyer explained that the crime could be pursued once the president left office. Challenged by Chin to answer the question he had asked, Trump’s attorney admitted that if Trump shot someone on Fifth Avenue, he absolutely would be immune from criminal investigation so long as he served as president.

What is this about? Is there any guide to the thicket of “absolute immunity”? A few observations might be useful.

First, the Constitution provides for absolute immunity in one specific case: statements made by members of Congress on the floor of the House or Senate. Article I, Section 6, of the Constitution states that “for any Speech or Debate in either House, they [members of Congress] shall not be questioned in any other place.” The 18th century text is a bit dense, but the provision has long been interpreted to mean that nothing a member of Congress says on the floor of the House or Senate can be the basis for personal liability. If a senator makes a defamatory statement on the floor of the Senate, the person defamed has no ability to sue. The senator’s remarks are protected by absolute immunity.

In the judicial branch, judicial immunity is also often described as absolute. So long as the judge has jurisdiction over a legal matter (i.e., it is properly before the judge), he or she cannot be sued by an individual injured by the judge’s rulings.

To a great extent, these rules seem common-sensical. Yes, they protect an individual and cut off the rights of someone defamed or otherwise injured. But the protection of the individual actor is not the rule’s goal; members of Congress and sitting judges are protected in order to safeguard the legal process. It’s in moving to the executive branch that things get very complicated.

The closest precedent to Trump’s several assertions of absolute immunity is, arguably, United States v. Nixon, the 1974 decision ordering President Richard Nixon to turn over the tapes of conversations with his aides that Nixon surreptitiously recorded in the Oval Office. While the Nixon decision doesn’t use the phrase “absolute immunity,” Nixon asserted a claim of “absolute privilege,” meaning that his refusal to turn over the tapes was final and could not be reviewed.

Despite the difference in terms, Nixon’s arguments directly parallel those of the Trump administration. Nixon claimed that “communications between high Government officials and those who advise and assist them in the performance of their duties” must be protected by making them confidential. The Supreme Court did not disagree, but in deciding the Nixon case, it held that neither the need for confidentiality nor the doctrine of separation of powers “can sustain an absolute, unqualified Presidential privilege of immunity from all judicial process under all circumstances.” However, the court stated — in remarks possibly relevant to the current impasse — that if Nixon had claimed a need to protect “military, diplomatic, or sensitive national security secrets” the result might have been different. But those interests were not relevant to the Watergate burglary, and by a vote of 8-0 (Justice William Rehnquist recused himself) the court ordered Nixon to turn over the tapes. Absolute immunity did not apply.

Therefore, it seems hard to find any basis for such a claim by the administration in the Vance case. Not only does the case fail to implicate military, diplomatic or sensitive national security secrets — it fails to implicate the presidency. Most of the tax returns at issue were filed before Trump became president, and all of them implicate only his personal and business taxes — not affairs of state. Applying immunity here would protect the person, not the office, which seems exactly backward.

The remaining claims of absolute immunity have more substance, but the stronger argument may be on the “no” side. In 2008, President George W. Bush asserted that his White House counsel, Harriet Miers, had absolute immunity in a case involving the firing of several U.S. attorneys. The case went to trial and the trial court rejected the absolute immunity claim. However, while an appeal was pending, the parties settled the case, leaving the trial court ruling as the only decision.

If this sufficient to stand as a precedent? Does the Nixon case constitute a simultaneous rejection of the claim of absolute privilege and a careful depiction of executive privilege in cases involving national security?

Those arguments lie ahead of us. But one thing is for sure: the drafters of the Constitution were committed to the creation of an impeachment process. In fact, given the order of the Articles in the Constitution, the drafters actually provided for impeachment (Article 1) before they created the presidency (Article 2). And the terms “impeach” and “impeachment” appear not one, but six times in the seven Articles of the Constitution of 1787. The drafters carefully crafted three coequal branches of government, giving each the power to check the others.

Absolute immunity for a sitting president seems totally inconsistent with the balance the framers struck. 

Mary E. O’Connell is professor emerita at Northeastern University School of Law.

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