The recent U.S. Supreme Court decision conferring broad criminal immunity on a President for his/her official acts was surprising and disturbing for several reasons. The legal protection granted by the court is a form of sovereign immunity, a term from English common law to embody the maxim that “the king can do no wrong.” Our Founding Fathers, fresh from revolting against a tyrannical king, would likely have been appalled by this convoluted judicial concoction conjured by conservative justices who claim to be “originalists”.
In addition to its sweeping scope, the majority ruling is cut largely out of whole cloth supported by almost no precedent. Ironically, the principal case the majority relied upon was about a whistleblower, Nixon v. Fitzgerald, 457 U. S. 731. The 43-page majority opinion cited this case 41 times.
That case involved the most noted whistleblower of the 1970s and 80s–Ernie Fitzgerald. He was an analyst for the U.S. Air Force who repeatedly exposed outrageous waste and fraud in Pentagon purchasing, ranging from a toilet seat that cost taxpayers $500 to a CIA transport plane that incurred a heretofore secret $2 billion cost overrun.
After one of his particularly explosive congressional appearances, President Nixon reportedly directed “Get rid of that son of a bitch!” Days later, the White House engineered a “reorganization” which not coincidentally eliminated Fitzgerald’s position.
With his characteristic tenacity, Ernie fought back, first through the old federal Civil Service Commission, and then through the federal courts, seeking civil damages arguing that Nixon’s revenge violated a couple of statutes as well as his First Amendment rights.
The civil litigation ultimately ended up (in the 1980s, long after Nixon had resigned) before the U.S. Supreme Court. The Court in a contentious 5-4 decision ruled that the President was entitled to immunity from civil liability for official acts. Writing for the majority, Justice Lewis Powell concluded —
“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.”
In the Trump holding, this narrow civil immunity from private lawsuits has morphed into a broad criminal immunity for presidents that President Nixon would have loved. In her stinging dissent, Justice Sonia Sotomayor shredded the majority’s exclusive reliance on the Fitzgerald case, calling it the “one arrow in its quiver.” She and her fellow dissenters pointed out, among other arguments, that –
- “[T]he public interest in a federal criminal prosecution of a former President is vastly greater than the public interest in a private individual’s civil suit. All nine Justices in Fitzgerald explicitly recognized that distinction.”
- Federal criminal prosecutions provide a President with far more “’robust procedural safeguards’ not found in civil suits…The criminal justice system has layers of protections that filter out insubstantial legal claims,’ whereas civil litigation lacks “analogous checks.”
- “It is a far greater danger if the President feels empowered to violate federal criminal law, buoyed by the knowledge of future immunity. I am deeply troubled by the idea, inherent in the majority’s opinion, that our Nation loses something valuable when the President is forced to operate within the confines of federal criminal law.”
In summation, she concluded that “the public interest in a criminal prosecution is far weightier. Applying the Fitzgerald balancing here should yield the opposite result” and that “granting Trump the same immunity from criminal prosecution that Nixon enjoyed from an unlawful termination suit …is plainly wrong.”
Back in the 1980s, after the Court denied Ernie Fitzgerald an avenue for legal relief against whistleblower retaliation, Congress stepped up to create one. Congress paved this legal path for fighting Executive Branch retaliation when it passed whistleblower protection legislation in 1988, which outgoing President Ronald Reagan pocket vetoed. Undeterred, Congress quickly placed a similar bill on the desk of Reagan’s successor. The Whistleblower Protection Act of 1989 was signed into law the next year by President H.W. Bush.
A quarter century ago, Congress felt compelled to fashion remedies to check executive abuses after a judicial immunity ruling. To limit potential damage unleashed by the Trump immunity ruling, Congress will likely have to do so again.
Jeff Ruch is the former Executive Director of PEER and now serves as its Pacific Director. 
