>snip<
As Justice Stevens wrote, in distinguishing Fitzgerald, “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.” As he continued later in the opinion, “Petitioner’s effort to construct an immunity from suit for unofficial acts grounded purely in the identity of his office is unsupported by precedent.” Again, the implication is that there is some conduct taken even while a President is in office that is beyond the “outer perimeter” of his official duties and thus would support litigation.
>snip<
Consider, for example, the Foreign Gifts and Decorations Act (the statute that implements the Foreign Emoluments Clause), which expressly defines the class of individuals who can violate the statute (and can therefore be held civilly liable for such violations) to include “the President and the Vice President.” To be sure, only the Attorney General is authorized to bring such a civil action, but it’s not at all clear that, were such a matter ever to be pursued, Fitzgerald immunity would apply.
>snip<
Caveat #3: Civil Litigation as a Separation of Powers Mechanism of Last Resort
The last caveat is perhaps the most ethereal. It is also the weakest. But it is there if the Supreme Court were ever to want a hook on which to further narrow Fitzgerald: The majority in that case went out of its way to differentiate ordinary civil litigation from litigation designed
to protect the separation of powers (in part to distinguish earlier cases in which Presidents were successfully dragged into court, including the far more prominent Supreme Court decision vis-à-vis Nixon in 1974).
As Justice Powell concluded,
When judicial action is needed to serve broad public interests—as when the Court acts, not in derogation of the separation of powers,
but to maintain their proper balance, or to vindicate the public interest in an ongoing criminal prosecution—
the exercise of jurisdiction has been held warranted.
In the case of this merely private suit for damages based on a President’s official acts, we hold it is not.
It is possible, although not obvious, that this language could be read to turn at least in part on
the sufficiency of the other mechanisms to which the Fitzgerald Court alluded as protecting the separation of powers, including “[v]igilant oversight by Congress,”
“the need to maintain prestige as an element of Presidential influence,
and a President’s traditional concern for his historical stature.”
Perhaps, in a case in which the Supreme Court were sufficiently concerned about the adequacy of these mechanisms,
the “need[] to serve broad public interests”
might militate in favor of certain types of civil litigation against a sitting President,
rather than, as in Fitzgerald, against it.
This caveat isn’t nearly as obvious (or as strong) as the others, but it is impossible to miss in re-reading the Fitzgerald opinion with Trump in mind.
The successful exploitation of this caveat, if it is possible at all,
would require a plaintiff to argue that there is some high public purpose to the action that distinguishes it from “this merely private suit for damages.”
>snip<
Lots more at
https://www.lawfareblog.com/can-presidents-absolute-immunity-be-trumped
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