Presidential Immunity

The Constitution says nothing directly about presidential immunity, though it provides that an impeached official remains liable to indictment and trial under ordinary law. In Nixon v. Fitzgerald, decided June 24, 1982, the Supreme Court held that a President has absolute immunity from civil damages suits for acts within the outer perimeter of official responsibility. In Clinton v. Jones in 1997 it held that a sitting President has no immunity from civil suits over conduct before taking office, and in Trump v. Vance in 2020 it held that a sitting President must comply with a state criminal grand jury subpoena.

The Justice Department's Office of Legal Counsel concluded in 1973 and again in 2000 that a sitting President cannot be indicted or prosecuted, a policy that binds federal prosecutors but has never been tested in court. In Trump v. United States, decided July 1, 2024, the Court held 6 to 3 that a former President has absolute immunity from criminal prosecution for actions within his core constitutional powers, at least presumptive immunity for other official acts, and no immunity for unofficial acts, and that evidence of official acts may not be used to prove unofficial conduct.

The 2024 decision drew sharply different reactions. Supporters said it protects the presidency from politically motivated prosecutions and allows Presidents to act decisively without fear of later charges, and it followed a long line of decisions protecting the President's independence. Critics, including the three dissenting justices, said it places the President above the law in important respects, and members of Congress introduced proposals, including constitutional amendments, to reverse it. Lower courts continue to apply the decision to define which acts count as official.