It’s time to think hard about Nixon v. Fitzgerald.

Fitzgerald isn’t really part of the national security law canon; it’s a 1982 Supreme Court decision that is often cited for the proposition that the President has “absolute immunity” (meaning he cannot be sued in his personal capacity) for any acts he undertakes while he is President.

We’re about to experience a flood of litigation testing what the case really means.

For most of American history, a sitting President’s immunity from civil litigation has been a subject of academic curiosity, but little real-world interest. Presidents get sued daily, of course, but usually in their capacity as head of the federal government, where—for the most part—Congress has waived any immunity. They generally don’t get sued in a manner that seeks to hold them personally liable.

Fitzgerald is one of the reasons. Although the Court held 15 years after deciding Fitzgerald, in Clinton v. Jones, that the same principle didn’t immunize a sitting President from civil litigation (in federal court, anyway) arising out of acts he took before assuming office, the working assumption for the past 35 years has been that inauguration is a bright constitutional line, and that the President is categorically free from civil liability for misdeeds that take place on the far side of his oath.

The problem is that Fitzgerald does not quite say what it’s cited to mean—and neither does Jones. And Donald Trump’s peculiar personality and bizarre mixing of his personal and official personas seems sure to test the parameters of the extant doctrine.

Consider: He is already being sued for incitement to violence at a campaign rally. He has, according to more than a dozen women, sexually harassed or assaulted them—and one of his accusers is now suing him for defamation after he claimed that she fabricated the charges. He says things about people using his Twitter account, like that they illegally “wire tapped” him, that might normally give rise to a defamation suit. And he is, well, careless about certain ethics rules and business practices in a fashion that might normally create exposure—even while maintaining giant business holdings as President.

Recently, Quinta Jurecic wrote a lengthy post on Trump’s two Twitter personas as a modern presentation of the medieval notion of the “King’s Two Bodies.” Fitzgerald and Jones are legal manifestations of the same idea: That the executive has a human form no different from any other person’s and an institutional form that is untouchable.

But on a closer reading of both cases, we think that the doctrine of absolute presidential immunity has some important caveats—some of which may bear prominently upon some of the current suits against President Trump and some of which may give rise to others. When you’re in Jones land and when you’re in Fitzgerald land turns out not be clear. And we think it likely that just how much immunity the president will receive under existing doctrine will depend more upon the nature of the specific claims than most commentators appear to have realized.

The Fitzgerald Ruling

In Fitzgerald, the Court faced the question of whether a discharged former Air Force employee could pursue a civil damages suit against former President Richard Nixon based upon a claim that he was fired at President Nixon’s specific behest in direct retaliation for his whistleblowing testimony before a congressional committee. The Supreme Court ruled, by a 5-to-4 vote, that Fitzgerald’s claims were barred by President Nixon’s absolute immunity from suit. The language of the decision is famously broad.

Writing for the Court, Justice Lewis Powell spent some time walking through the origins of official immunity doctrines, and the genesis of the Court’s prior recognitions of absolute immunity for judges when acting in their judicial capacity and prosecutors when acting in their prosecutorial capacities (along with the Constitution’s codification of comparable immunity for legislators). In light of those immunity doctrines and the unique structural role and constitutional status of the President of the United States, the Court concluded that Nixon was “entitled to absolute immunity from damages liability predicated on his official acts. We consider this immunity a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.” And although Justice White, in what for him was an unusually acerbic dissent, accused the majority of derogating its judicial role, Powell fired back that other mechanisms existed to ensure presidential fealty to legal constraints:

A rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive. There remains the constitutional remedy of impeachment. In addition, there are formal and informal checks on Presidential action that do not apply with equal force to other executive officials. The President is subjected to constant scrutiny by the press. Vigilant oversight by Congress also may serve to deter Presidential abuses of office, as well as to make credible the threat of impeachment. Other incentives to avoid misconduct may include a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a President’s traditional concern for his historical stature.

What activity does Fitzgerald cover? Powell isn’t entirely clear, though he does make clear that the zone of coverage is capacious: “In view of the special nature of the President's constitutional office and functions,” he writes, “we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.” In other words, as long the action for which he is facing suit is within the broadest understanding of his function as President, the President is off the hook.

Since it was handed down, Fitzgerald has generally been understood to immunize the President from civil liability for just about anything he does while he holds office, even if, as in Nixon, the suit is filed sometime after his tenure has ended. But the decision doesn’t quite say that. Instead, it includes three important caveats that were not relevant in Fitzgerald’s case but which could prove important in future litigation.

Caveat #1: The “Outer Perimeter” as Constraint

Justice Powell’s suggestion that immunity applies to “acts within the ‘outer perimeter’ of [the President’s] official responsibility” is normally cited as we did above, to show how capacious such presidential immunity is (and should be). But there’s a flip side to that point, which is that it implies that there is a perimeter—in other words, that the President is not categorically immune to all civil litigation for conduct taking place while he is in office. Powell simply borrowed this phrase from the Court’s far-less-interesting discussion of official immunity in an earlier 1959 ruling. In other words, absolute immunity under Fitzgerald comes with an (admittedly broad) scope-of-employment requirement—pursuant to which it’s at least possible that some actions a sitting President takes would not be within the outer perimeter of his official responsibility.

To be sure, Nixon v. Fitzgerald itself rejected the possibility that any violation of a statute or constitutional provision would, ipso facto, fall outside the outer perimeter of the President’s duties, since “Adoption of this construction thus would deprive absolute immunity of its intended effect.” In Fitzgerald’s case, then, the fact that the President had “the authority to prescribe reorganizations and reductions in force” as part of his broader authority over the Air Force brought any wrongful acts in Fitzgerald’s termination “well within the outer perimeter of his authority.”

But in Clinton v. Jones, where one of Paula Jones’s claims was a state-law defamation claim that encompassed statements made after Clinton assumed office, the Eighth Circuit went out of its way to note that it was “not free from doubt” whether defamation fell within the outer perimeter of the President’s official duties (but left the ultimate issue for the district court on remand). Thus, there certainly is at least the specter of daylight between a President’s liability for misconduct undertaken pursuant to his official duties (even liberally construed), and misconduct that is far less obviously connected to some statutory or constitutional authority.

Notably, the more general holding in Clinton v. Jones, also contrary to common belief, is not quite predicated on the conduct’s having taken place before President Clinton took office. Rather, the court distinguishes Fitzgerald on grounds that the conduct alleged in Jones’s suit was not plausibly encompassed within the President’s official duties. That it preceded his presidency was evidence of that reality, but it was the reality it supported that controlled the outcome. 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.

Caveat #2: The Absence of an Express Act of Congress

The second caveat from Fitzgerald appears on the face of Justice Powell’s opinion—which expressly reserves the question of whether the same separation of powers concerns motivating the President’s absolute immunity would apply in cases in which Congress had expressly subjected the President to suit. (It had not done so in Nixon itself.) As Powell wrote in footnote 27, “we need not address directly the immunity question as it would arise if Congress expressly had created a damages action against the President of the United States,” since, one imagines, the separation of powers concerns would run in multiple directions in such a circumstance.

Thus, Fitzgerald’s absolute immunity for acts within the “outer perimeter” of a President’s official duties does not necessarily apply—though it may—in the face of a statute expressly authorizing suits against the President. Such statutes are, understandably, rare. But they are not a null set. 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. And more significantly, it’s easy to imagine Congress authorizing more such suits (whether mischievously or otherwise) were Democrats to retake power in the legislature.

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.”

Applying the Caveats to Different Kinds of Suits

With these caveats in mind, it seems to us that the applicability of Fitzgerald-like absolute immunity could vary quite a bit depending upon the specific type of lawsuit being pursued against a sitting President. Consider four different types of claims:

Personnel-Related Decisions and Other Exercises of Presidential Power

If Fitzgerald is clear about any category of litigation, it’s with respect to claims arising out of the President’s decisions, rightly or wrongly, when it comes to Executive Branch personnel. Thus, it seems to us that the heartland of the absolute immunity contemplated by the Fitzgerald Court is claims arising out of allegedly wrongful employment decisions made by the President. More generally, we think it’s quite clear that the Court is not going to open the door to suits against the President for actions taken pursuant to his constitutional or statutory powers to act. Fitzgerald immunity is going to be robust in the areas of military affairs (no wrongful death suits for military strikes are going to fly against Trump), for any regulatory actions, or executive orders. And no, no tourist is going to successfully sue Trump because she slipped and fell on the White House grounds (we’ll leave more technical discussions of the government’s potential liability under the Federal Tort Claims Act for another time).

Ethical Violations

Ethical violations are, in our view, more of a gray area. As noted above, some federal ethics laws (like the Foreign Gifts and Decorations Act) apply by their express terms to the President, and may therefore provide an important means of sidestepping the immunity recognized in Fitzgerald. But most federal ethics laws (including, notoriously, the anti-nepotism laws) do not expressly bind the President. And if the relevant decisions were somehow tied to any of the President’s official responsibilities, that would seem to bring them within Fitzgerald’s bailiwick—even if the unethical official conduct had personal, pecuniary motives. The question here would be just how far the “outer perimeter” of a President’s official duties truly extends, and whether Congress were to move to authorize a wider variety of suits against presidents in ethics matters.

Defamation

Speech-related misconduct is, to us, a harder case for immunity. Yes, speaking is, often, an integral part of the President’s discharge of his official duties. But libel and slander do not flow from those official duties in quite the same manner that wrongful termination flows from personnel supervision. Indeed, we think the Eighth Circuit was onto something in Clinton v. Jones in suggesting that a defamation claim against a sitting President could very well involve conduct falling outside the “outer perimeter” of the his official duties, especially if the defamatory statements came in an unofficial context (like, for example, Twitter), as opposed to in a more formal, official setting. This is particularly the case if, as Quinta points out in her “King’s Two Bodies” article, the Twitter account used is Trump’s personal one (@realDonaldTrump), which predates his presidency, instead of the official presidential account (@POTUS), which is also at his disposal. (Indeed, an argument from the government that the President’s personal Twitter account isn’t subject to the Presidential Records Act might only bolster this argument.) Consider this question: If Trump were to respond to this article by tweeting, “Steve Vladeck and Benjamin Wittes are perpetrators of #FakeNews—and they molest children” from an account associated with his personal capacity, not his presidency, would Fitzgerald really immunize that act absolutely?

Other Intentional Torts

The same theory under which certain defamations may fall outside Fitzgerald’s “outer perimeter” might extend to many other intentional torts, including assault, battery, false imprisonment, and so on. Were a sitting President ever to commit some kind of sexual misconduct while in office, for example, we have a hard time seeing the argument that such actions would fall within the “outer perimeter” of his official duties—even if the civil suit would, for obvious reasons, take an understandable back seat to the far more likely impeachment and later criminal proceedings at that point. The key, again, is that Fitzgerald’s absolute immunity, particularly as caveated by Jones, still recognizes that there are some things a President does while he is President that simply are not part of his official duties—and for which he cannot therefore invoke the Constitution as a categorical shield from civil liability.

Ask yourself this: If a woman claimed a sexual assault in the Oval Office and Access Hollywood then released a tape of President Trump boasting that he grabbed women “by the pussy” at the White House, and that, “when you’re president, they let you get away with it,” do you really think that the Supreme Court would interpret Fitzgerald to mean that he’s right? We, at least, are skeptical.

Conclusion

Although we flagged some of the cases brought thus far against President Trump at the top, we’ve gotten this far without analyzing any of the numerous civil suits currently pending against him in which absolute immunity under Nixon has, or likely will, come up. That’s intentional. Our point is not to take a position on the strengths or weaknesses of the arguments in any one case, but to make a larger point about the doctrine—and the ever-increasing significance of its less-than-categorical immunity rule.

As we said at the top, we think the next few years is very likely to see a lot of probing of the edges of the Fitzgerald doctrine. That probing has already begun.