Part One - The Structure of Government · Module 6A

The Federal Executive Power, Part III: Immunity from Suit and Impeachment

Whether a President can be sued, and what is left when he cannot. Fitzgerald grants absolute immunity for official acts; Clinton v. Jones refuses it for unofficial ones and predicts, wrongly, that the burden will be slight. Impeachment is the remedy the Constitution supplies where the courts decline to sit.

Topics

Immunity of a sitting or former President from civil suit. Absolute immunity for acts within the outer perimeter of official responsibility, and the absence of immunity for unofficial conduct. Temporary immunity, deferral, and the burdens litigation places on the office. Impeachment: the standard, the process, the role of the Chief Justice, and the relationship between impeachment and criminal prosecution.

Reading list

3 of 3 readings published

Opinion (edited) Clinton v. Jones 520 U.S. 681 (1997)
Note Nixon v. Fitzgerald 457 U.S. 731 (1982)
Note Impeachment
Current case Lee v. Trump No. 21-cv-00400 (D.D.C. Mar. 31, 2026) (Mehta, J.) (whether the immunity recognized in *Trump v. United States* reaches conduct undertaken as an office-seeker rather than as an office-holder).

Classroom visuals

Slides for this module PDF

This module in Canvas

Modules · Quizzes · Discussion boards · Files and recordings

How to read this list

A case named without a marker is assigned as an opinion and is to be read in its entirety. Opinion (edited) means the Professor has cut it for length; the text on this site is the assigned text. Note means the case is not assigned as an opinion at all — its holding, its facts to the extent they matter, and its place in the doctrinal line are given in a note written for this course, and you are responsible for that note exactly as you are responsible for an assigned opinion. Most modules close with a Current case, a recent decision chosen because it shows the doctrine you have just read being applied at its live edge; current cases are assigned as opinions. You are responsible for all assigned required materials, including the notes, questions, problems and commentary that accompany the cases, whether or not we discuss them in class.

Notes

Nixon v. Fitzgerald

457 U.S. 731 (1982) · Westlaw

A management analyst lost his Air Force job after testifying to Congress about cost overruns and sued the former President personally for damages. The Court, 5–4, held that a President enjoys absolute immunity from civil damages liability for acts within the “outer perimeter” of official duties — not because the text says so, but because of the office’s unique exposure and the fear that damages actions would distort presidential decisionmaking. Note what the holding is not: it says nothing about suits over unofficial conduct (that is Clinton v. Jones), nothing about injunctions, and — until 2024 — it was carefully cabined to civil damages rather than criminal process. Hold that boundary in mind while reading Trump v. United States, which quotes Fitzgerald’s functional reasoning and extends it into criminal territory the 1982 Court expressly reserved. Ask yourself whether the “outer perimeter” concept was built to bear that weight.

A note on impeachment

The Constitution’s textual check on a lawless President is not a lawsuit; it is impeachment (Art. I, §§ 2–3; Art. II, § 4). The House impeaches by majority vote for “Treason, Bribery, or other high Crimes and Misdemeanors”; the Senate convicts — removal, and optional disqualification — only by two-thirds. Three Presidents have been impeached (Johnson, Clinton, Trump twice); none has been convicted, and Nixon resigned before the House could vote. Two structural points matter for this module. First, the Senate’s practice treats impeachment as a political judgment courts will not review — Nixon v. United States (the judge, not the President) held a challenge to Senate trial procedures nonjusticiable, which means the “sole Power” clauses are among the few places where judicial review runs out. Second, every immunity case you read — Fitzgerald, Clinton v. Jones, Trump v. United States — implicitly prices the impeachment remedy: the more the Court trusts impeachment to police presidential misconduct, the more comfortably it can wall off other remedies. Whether that trust is empirically earned, given the two-thirds arithmetic of a partisan Senate, is a question you should carry through the rest of the course.