OCTOBER TERM, 1996
Syllabus
CLINTON
v. JONES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT
No. 95-1853. Argued January 13, 1997-Decided May 27,1997
Respondent sued under 42 U. S. C. §§ 1983 and 1985 and Arkansas
law to recover damages from petitioner, the current President of
the United States, alleging,
inter alia, that while he was
Governor of Arkansas, petitioner made "abhorrent" sexual advances
to her, and that her rejection of those advances led to punishment
by her supervisors in the state job she held at the time.
Petitioner promptly advised the Federal District Court that he
would file a motion to dismiss on Presidential immunity grounds,
and requested that all other pleadings and motions be deferred
until the immunity issue was resolved. After the court granted that
request, petitioner filed a motion to dismiss without prejudice and
to toll any applicable statutes of limitation during his
Presidency. The District Judge denied dismissal on immunity grounds
and ruled that discovery could go forward, but ordered any trial
stayed until petitioner's Presidency ended. The Eighth Circuit
affirmed the dismissal denial, but reversed the trial postponement
as the "functional equivalent" of a grant of temporary immunity to
which petitioner was not constitutionally entitled. The court
explained that the President, like other officials, is subject to
the same laws that apply to all citizens, that no case had been
found in which an official was granted immunity from suit for his
unofficial acts, and that the rationale for official immunity is
inapposite where only personal, private conduct by a President is
at issue. The court also rejected the argument that, unless
immunity is available, the threat of judicial interference with the
Executive Branch would violate separation of powers.
Held:
1. This Court need not address two important constitutional
issues not encompassed within the questions presented by the
certiorari petition: (1) whether a claim comparable to petitioner's
assertion of immunity might succeed in a state tribunal, and (2)
whether a court may compel the President's attendance at any
specific time or place. Pp. 689-692.
2. Deferral of this litigation until petitioner's Presidency
ends is not constitutionally required. Pp.692-710.
(a) Petitioner's principal submission-that in all but the most
exceptional cases, the Constitution affords the President temporary
immu-
682
Syllabus
nity from civil damages litigation arising out of events that
occurred before he took office-cannot be sustained on the basis of
precedent. The principal rationale for affording Presidents
immunity from damages actions based on their official acts-i.
e., to enable them to perform their designated functions
effectively without fear that a particular decision may give rise
to personal liability, see,
e. g., Nixon v.
Fitzgerald,
457 U. S. 731, 749, 752, and n. 32-provides no support for an
immunity for
unofficial conduct. Moreover, immunities for
acts clearly
within official capacity are grounded in the
nature of the function performed, not the identity of the actor who
performed it.
Forrester v.
White, 484 U. S. 219, 229.
The Court is also unpersuaded by petitioner's historical evidence,
which sheds little light on the question at issue, and is largely
canceled by conflicting evidence that is itself consistent with
both the doctrine of Presidential immunity as set forth in
Fitzgerald, and rejection of the immunity claim in this
case. Pp. 692-697.
(b) The separation-of-powers doctrine does not require federal
courts to stay all private actions against the President until he
leaves office. Even accepting the unique importance of the
Presidency in the constitutional scheme, it does not follow that
that doctrine would be violated by allowing this action to proceed.
The doctrine provides a self-executing safeguard against the
encroachment or aggrandizement of one of the three coequal branches
of Government at the expense of another.
Buckley v.
Valeo, 424 U. S.
1, 122. But in this case there is no suggestion that the
Federal Judiciary is being asked to perform any function that might
in some way be described as "executive." Respondent is merely
asking the courts to exercise their core Article III jurisdiction
to decide cases and controversies, and, whatever the outcome, there
is no possibility that the decision here will curtail the scope of
the Executive Branch's official powers. The Court rejects
petitioner's contention that this case-as well as the potential
additional litigation that an affirmance of the Eighth Circuit's
judgment might spawn-may place unacceptable burdens on the
President that will hamper the performance of his official duties.
That assertion finds little support either in history, as evidenced
by the paucity of suits against sitting Presidents for their
private actions, or in the relatively narrow compass of the issues
raised in this particular case. Of greater significance, it is
settled that the Judiciary may severely burden the Executive Branch
by reviewing the legality of the President's official conduct, see,
e. g., Youngstown Sheet &
Tube Co. v.
Sawyer, 343 U.
S. 579, and may direct appropriate process to the President
himself, see,
e. g., United States v.
Nixon, 418 U. S. 683. It must
follow that the federal courts have power to determine the legality
of the President's unofficial conduct. The rea-
683
sons for rejecting a categorical rule requiring federal courts
to stay private actions during the President's term apply as well
to a rule that would, in petitioner's words, require a stay "in all
but the most exceptional cases." Pp.697-706.
(c) Contrary to the Eighth Circuit's ruling, the District
Court's stay order was not the "functional equivalent" of an
unconstitutional grant of temporary immunity. Rather, the District
Court has broad discretion to stay proceedings as an incident to
its power to control its own docket. See,
e. g., Landis v.
North American Co., 299 U. S. 248, 254.
Moreover, the potential burdens on the President posed by this
litigation are appropriate matters for that court to evaluate in
its management of the case, and the high respect owed the
Presidency is a matter that should inform the conduct of the entire
proceeding. Nevertheless, the District Court's stay decision was an
abuse of discretion because it took no account of the importance of
respondent's interest in bringing the case to trial, and because it
was premature in that there was nothing in the record to enable a
judge to assess whether postponement of trial after the completion
of discovery would be warranted. Pp.706-708.
(d) The Court is not persuaded of the seriousness of the alleged
risks that this decision will generate a large volume of
politically motivated harassing and frivolous litigation and that
national security concerns might prevent the President from
explaining a legitimate need for a continuance, and has confidence
in the ability of federal judges to deal with both concerns. If
Congress deems it appropriate to afford the President stronger
protection, it may respond with legislation. Pp. 708-710.
72 F.3d
1354, affirmed.
STEVENS, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, SOUTER, THOMAS,
and GINSBURG, JJ., joined. BREYER, J., filed an opinion concurring
in the judgment,
post, p. 710.
Robert S. Bennett argued the cause for petitioner. With him on
the briefs were Carl S. Rauh, Alan Kriegel, Amy R. Sabrin, and
David A. Strauss.
Acting Solicitor General Dellinger argued the cause for the
United States as amicus curiae urging reversal. With him on the
brief were Assistant Attorney General Hunger, Deputy Solicitor
General Kneedler, Malcolm L. Stewart, and Douglas N. Letter.
684
Gilbert K. Davis argued the cause for respondent. With
him on the brief was
Joseph Cammarata. *
JUSTICE STEVENS delivered the opinion of the Court. This case
raises a constitutional and a prudential question concerning the
Office of the President of the United States. Respondent, a private
citizen, seeks to recover damages from the current occupant of that
office based on actions allegedly taken before his term began. The
President submits that in all but the most exceptional cases the
Constitution requires federal courts to defer such litigation until
his term ends and that, in any event, respect for the office
warrants such a stay. Despite the force of the arguments supporting
the President's submissions, we conclude that they must be
rejected.
I
Petitioner, William Jefferson Clinton, was elected to the
Presidency in 1992, and reelected in 1996. His term of office
expires on January 20, 2001. In 1991 he was the Governor of the
State of Arkansas. Respondent, Paula Corbin Jones, is a resident of
California. In 1991 she lived in Arkansas, and was an employee of
the Arkansas Industrial Development Commission.
On May 6, 1994, she commenced this action in the United States
District Court for the Eastern District of Arkansas by filing a
complaint naming petitioner and Danny Ferguson, a former Arkansas
State Police officer, as defendants. The
* John C.
Jeffries, Jr., and
Pamela
S.
Karlan filed a brief for Law Professors as
amicus
curiae urging reversal.
Christopher A. Hansen and
Steven R. Shapiro filed
a brief for the American Civil Liberties Union as
amicus
curiae urging affirmance.
Briefs of amicus curiae were filed for the Coalition of American
Veterans by Laurence A. Elgin; and for Law Professors by Ronald D.
Rotunda, Albert E. Jenner, Jr., Stephen B. Burbank, William Cohen,
Geoffrey P. Miller, Robert F. Nagel, and Richard Parker.
685
complaint alleges two federal claims, and two state-law claims
over which the federal court has jurisdiction because of the
diverse citizenship of the parties.1 As the case comes to us, we
are required to assume the truth of the detailedbut as yet
untested-factual allegations in the complaint.
Those allegations principally describe events that are said to
have occurred on the afternoon of May 8, 1991, during an official
conference held at the Excelsior Hotel in Little Rock, Arkansas.
The Governor delivered a speech at the conference;
respondent-working as a state employee-staffed the registration
desk. She alleges that Ferguson persuaded her to leave her desk and
to visit the Governor in a business suite at the hotel, where he
made "abhorrent" 2 sexual advances that she vehemently rejected.
She further claims that her superiors at work subsequently dealt
with her in a hostile and rude manner, and changed her duties to
punish her for rejecting those advances. Finally, she alleges that
after petitioner was elected President, Ferguson defamed her by
making a statement to a reporter that implied she had accepted
petitioner's alleged overtures, and that various persons authorized
to speak for the President publicly branded her a liar by denying
that the incident had occurred.
Respondent seeks actual damages of $75,000 and punitive damages
of $100,000. Her complaint contains four counts. The first charges
that petitioner, acting under color of state law, deprived her of
rights protected by the Constitution, in violation of Rev. Stat. §
1979, 42 U. S. C. § 1983. The second charges that petitioner and
Ferguson engaged in a conspiracy to violate her federal rights,
also actionable under federal law. See Rev. Stat. § 1980, 42 U. S.
C. § 1985. The third is a state common-law claim for intentional
infliction of emotional distress, grounded primarily on the
incident at the
1 See 28 U. S. C. § 1332. Jurisdiction over the federal claims
is authorized by 28 U. S. C. §§ 1331 and 1343.
2 Complaint' 26.
686
hotel. The fourth count, also based on state law, is for
defamation, embracing both the comments allegedly made to the press
by Ferguson and the statements of petitioner's agents. Inasmuch as
the legal sufficiency of the claims has not yet been challenged, we
assume, without deciding, that each of the four counts states a
cause of action as a matter of law. With the exception of the last
charge, which arguably may involve conduct within the outer
perimeter of the President's official responsibilities, it is
perfectly clear that the alleged misconduct of petitioner was
unrelated to any of his official duties as President of the United
States and, indeed, occurred before he was elected to that
office.3
II
In response to the complaint, petitioner promptly advised the
District Court that he intended to file a motion to dismiss on
grounds of Presidential immunity, and requested the court to defer
all other pleadings and motions until after the immunity issue was
resolved.4 Relying on our cases holding that immunity questions
should be decided at the earliest possible stage of the litigation,
858 F. Supp. 902, 905 (ED Ark. 1994), our recognition of the
"'singular importance of the President's duties,'"
id., at
904 (quoting
Nixon v.
Fitzgerald, 457 U. S. 731, 751
(1982)), and the fact that the question did not require any
analysis of the allegations of the complaint, 858 F. Supp., at 905,
the court granted the request. Petitioner thereupon filed a motion
"to dismiss ... without prejudice and to toll any statutes of
limitation [that may be applicable] until he is no longer
President, at which time the plaintiff
3 As the matter is not before us, see
Jones v.
Clinton, 72 F.3d
1354, 1359, n. 7
(CA8 1996), we do not address the
question whether the President's immunity from damages liability
for acts taken within the "outer perimeter" of his official
responsibilities provides a defense to the fourth count of the
complaint. See
Nixon v.
Fitzgerald, 457 U. S. 731, 756
(1982).
4 Record, Doc. No.9; see 858 F. Supp. 902, 904 (ED Ark.
1994).
687
may refile the instant suit." Record, Doc. No. 17. Extensive
submissions were made to the District Court by the parties and the
Department of Justice.5
The District Judge denied the motion to dismiss on immunity
grounds and ruled that discovery in the case could go forward, but
ordered any trial stayed until the end of petitioner's Presidency.
869 F. Supp. 690 (ED Ark. 1994). Although she recognized that a
"thin majority" in
Nixon v.
Fitzgerald, 457 U. S. 731 (1982), had
held that "the President has absolute immunity from civil damage
actions arising out of the execution of official duties of office,"
she was not convinced that "a President has absolute immunity from
civil causes of action arising prior to assuming the office." 6 She
was, however, persuaded by some of the reasoning in our opinion in
Fitzgerald that deferring the trial if one were required
would be appropriate.7 869 F. Supp., at 699-700. Relying in part on
the fact that respondent had failed to bring her complaint until
two days before the 3-year period of limitations expired, she
concluded that the public interest in avoiding litigation that
might hamper the President in conducting the duties of his office
outweighed any demonstrated need for an immediate trial.
Id., at 698-699.
Both parties appealed. A divided panel of the Court of Appeals
affirmed the denial of the motion to dismiss, but because it
regarded the order postponing the trial until the
5 See App. to Pet. for Cert. 53.
6869 F. Supp., at 698. She explained: "Nowhere in the
Constitution, congressional acts, or the writings of any judge or
scholar, may any credible support for such a proposition be found.
It is contrary to our form of government, which asserts as did the
English in the Magna Carta and the Petition of Right, that even the
sovereign is subject to God and the law."
Ibid.
7 Although, as noted above, the District Court's initial order
permitted discovery to go forward, the court later stayed discovery
pending the outcome of the appeals on the immunity issue. 879 F.
Supp. 86 (ED Ark. 1995).
688
President leaves office as the "functional equivalent" of a
grant of temporary immunity, it reversed that order.
72 F.3d
1354, 1361, n. 9, 1363 (CA8 1996). Writing for the majority,
Judge Bowman explained that "the President, like all other
government officials, is subject to the same laws that apply to all
other members of our society,"
id., at 1358, that he could
find no "case in which any public official ever has been granted
any immunity from suit for his unofficial acts,"
ibid., and
that the rationale for official immunity "is inapposite where only
personal, private conduct by a President is at issue,"
id.,
at 1360. The majority specifically rejected the argument that,
unless immunity is available, the threat of judicial interference
with the Executive Branch through scheduling orders, potential
contempt citations, and sanctions would violate
separation-of-powers principles. Judge Bowman suggested that
"judicial case management sensitive to the burdens of the
presidency and the demands of the President's schedule" would avoid
the perceived danger.
Id., at 1361.
In dissent, Judge Ross submitted that even though the holding in
Fitzgerald involved official acts, the logic of the opinion,
which "placed primary reliance on the prospect that the President's
discharge of his constitutional powers and duties would be impaired
if he were subject to suits for damages," applies with equal force
to this case. 72 F. 3d, at 1367. In his view, "unless exigent
circumstances can be shown," all private actions for damages
against a sitting President must be stayed until the completion of
his term.
Ibid. In this case, Judge Ross saw no reason why
the stay would prevent respondent from ultimately obtaining an
adjudication of her claims.
In response to the dissent, Judge Beam wrote a separate
concurrence. He suggested that a prolonged delay may well create a
significant risk of irreparable harm to respondent because of an
unforeseeable loss of evidence or the possible
689
death of a party.
Id., at 1363-1364. Moreover, he argued
that in civil rights cases brought under § 1983 there is a "public
interest in an ordinary citizen's timely vindication of ... her
most fundamental right against alleged abuse of power by government
officials."
Id., at 1365. In his view, the dissent's concern
about judicial interference with the functioning of the Presidency
was "greatly overstated."
Ibid. Neither the involvement of
prior Presidents in litigation, either as parties or as witnesses,
nor the character of this "relatively uncomplicated civil
litigation," indicated that the threat was serious.
Id., at
1365-1366. Finally, he saw "no basis for staying discovery or trial
of the claims against Trooper Ferguson."
Id., at 1366.8
III
The President, represented by private counsel, filed a petition
for certiorari. The Acting Solicitor General, representing the
United States, supported the petition, arguing that the decision of
the Court of Appeals was "fundamentally mistaken" and created
"serious risks for the institution of the Presidency." 9 In her
brief in opposition to certiorari, respondent argued that this
"one-of-a-kind case is singularly inappropriate" for the exercise
of our certiorari jurisdiction because it did not create any
conflict among the Courts of Appeals, it "does not pose any
conceivable threat to the functioning of the Executive Branch," and
there is no precedent supporting the President's position.10
While our decision to grant the petition, 518 U. S. 1016 (1996),
expressed no judgment concerning the merits of the case, it does
reflect our appraisal of its importance. The
8 Over the dissent of Judge McMillian, the Court of Appeals
denied a suggestion for rehearing en bane.
81
F.3d 78 (CA8 1996).
9 Brief for United States in Support of Petition 5.
10 Brief in Opposition 8, 10, 23.
690
representations made on behalf of the Executive Branch as to the
potential impact of the precedent established by the Court of
Appeals merit our respectful and deliberate consideration.
It is true that we have often stressed the importance of
avoiding the premature adjudication of constitutional questions.ll
That doctrine of avoidance, however, is applicable to the entire
Federal Judiciary, not just to this Court, cf.
Arizonansfor
Official English v.
Arizona, ante, p. 43, and comes into
play after the court has acquired jurisdiction of a case. It does
not dictate a discretionary denial of every certiorari petition
raising a novel constitutional question. It does, however, make it
appropriate to identify two important constitutional issues not
encompassed within the questions presented by the petition for
certiorari that we need not address today. 12
11 As we have explained: '''If there is one doctrine more deeply
rooted than any other in the process of constitutional
adjudication, it is that we ought not to pass on questions of
constitutionality ... unless such adjudication is unavoidable.'
Spector Motor Service v.
McLaughlin, 323 U. S. 101,
105 [(1944)]. It has long been the Court's 'considered practice not
to decide abstract, hypothetical or contingent questions ... or to
decide any constitutional question in advance of the necessity for
its decision ... or to formulate a rule of constitutional law
broader than is required by the precise facts to which it is to be
applied ... or to decide any constitutional question except with
reference to the particular facts to which it is to be applied ...
.'
Alabama State Federation of Labor v.
McAdory,
325 U. S. 450,
461 [(1945)]. 'It is not the habit of the court to decide questions
of a constitutional nature unless absolutely necessary to a
decision of the case.'
Burton v.
United States,
196 U. S. 283,
295
[(1905)]." Rescue Army v.
Municipal Court of Los
Angeles, 331 U.
S. 549, 570, n. 34 (1947).
12The two questions presented in the certiorari petition are:
"1. Whether the litigation of a private civil damages action
against an incumbent President must in all but the most exceptional
cases be deferred until the President leaves office"; and "2.
Whether a district court,
691
First, because the claim of immunity is asserted in a federal
court and relies heavily on the doctrine of separation of powers
that restrains each of the three branches of the Federal Government
from encroaching on the domain of the other two, see,
e. g.,
Buckley v.
Valeo, 424 U. S. 1, 122
(1976) (per curiam), it is not necessary to consider
or decide whether a comparable claim might succeed in a state
tribunal. If this case were being heard in a state forum, instead
of advancing a separation-of-powers argument, petitioner would
presumably rely on federalism and comity concerns, 13 as well as
the interest in protecting federal officials from possible local
prejudice that underlies the authority to remove certain cases
brought against federal officers from a state to a federal court,
see 28 U. S. C. § 1442(a);
Mesa v.
California,
489 U. S. 121,
125-126 (1989). Whether those concerns would present a more
compelling case for immunity is a question that is not before
us.
Second, our decision rejecting the immunity claim and allowing
the case to proceed does not require us to confront the question
whether a court may compel the attendance of the President at any
specific time or place. We assume that the testimony of the
President, both for discovery and for use at trial, may be taken at
the White House at a time that
as a proper exercise of judicial discretion, may stay such
litigation until the President leaves office." Our review is
confined to these issues. See this Court's Rule 14.1(a).
13 Because the Supremacy Clause makes federal law "the supreme
Law of the Land," Art. VI, cl. 2, any direct control by a state
court over the President, who has principal responsibility to
ensure that those laws are "faithfully executed," Art. II, § 3, may
implicate concerns that are quite different from the interbranch
separation-of-powers questions addressed here. Cf.,
e.
g., Hancock v.
Train, 426 U. S. 167, 178-179
(1976);
Mayo v.
United States, 319 U. S. 441, 445
(1943). See L. Tribe, American Constitutional Law 513 (2d ed. 1988)
("[A]bsent explicit congressional consent no state may command
federal officials ... to take action in derogation of their ...
federal responsibilities").
692
will accommodate his busy schedule, and that, if a trial is
held, there would be no necessity for the President to attend in
person, though he could elect to do SO.14
IV
Petitioner's principal submission-that "in all but the most
exceptional cases," Brief for Petitioner i, the Constitution
affords the President temporary immunity from civil damages
litigation arising out of events that occurred before he took
office-cannot be sustained on the basis of precedent.
Only three sitting Presidents have been defendants in civil
litigation involving their actions prior to taking office.
Complaints against Theodore Roosevelt and Harry Truman had been
dismissed before they took office; the dismissals were affirmed
after their respective inaugurations.15 Two companion cases arising
out of an automobile accident were filed against John F. Kennedy in
1960 during the Presidential campaign.16 After taking office, he
unsuccessfully argued that his status as Commander in Chief gave
him a right to a stay under the Soldiers' and Sailors' Civil Relief
Act of 1940, 50 U. S. C. App. §§ 501-525. The motion for a stay was
denied by the District Court, and the matter was settled out of
court.17 Thus, none of those cases sheds any light on the
constitutional issue before us.
The principal rationale for affording certain public servants
immunity from suits for money damages arising out of
14 Although Presidents have responded to written
interrogatories, given depositions, and provided videotaped trial
testimony, see
infra, at 704705, no sitting President has
ever testified, or been ordered to testify, in open court.
15 See
People ex rel. Hurley v.
Roosevelt, 179 N.
Y. 544, 71 N. E. 1137
(1904); DeVault v.
Truman, 354
Mo. 1193, 194 S. W. 2d 29 (1946).
16 See Complaints in
Bailey v.
Kennedy, No.
757,200, and
Hills v.
Kennedy, No. 757,201 (Cal.
Super. Ct., filed Oct. 27, 1960).
17 See 72 F. 3d, at 1362, n. 10.
693
their official acts is inapplicable to unofficial conduct. In
cases involving prosecutors, legislators, and judges we have
repeatedly explained that the immunity serves the public interest
in enabling such officials to perform their designated functions
effectively without fear that a particular decision may give rise
to personal liability. 18 We explained in
Ferri v.
Ackerman, 444
U. S. 193 (1979):
"As public servants, the prosecutor and the judge represent the
interest of society as a whole. The conduct of their official
duties may adversely affect a wide variety of different
individuals, each of whom may be a potential source of future
controversy. The societal interest in providing such public
officials with the maximum ability to deal fearlessly and
impartially with the public at large has long been recognized as an
acceptable justification for official immunity. The point of
immunity for such officials is to forestall an atmosphere of
intimidation that would conflict with their resolve to perform
their designated functions in a principled fashion." Id., at
202-204.
That rationale provided the principal basis for our holding that
a former President of the United States was "entitled to absolute
immunity from damages liability predicated on his official acts,"
Fitzgerald, 457 U. S., at 749. See
id., at 752
(citing
Ferri v.
Ackerman). Our central concern was
to
18 Some of these cases defined the immunities of state and local
officials in actions filed under 42 U. S. C. § 1983. See,
e.
g., Imbler v.
Pachtman, 424 U. S. 409,422-423
(1976) (prosecutorial immunity);
Tenney v.
Brandhove,
341 U. S. 367,
376-377 (1951) (legislative immunity);
Pierson v.
Ray, 386 U. S.
547, 554-555 (1967) (judicial immunity). The rationale
underlying our official immunity jurisprudence in cases alleging
constitutional violations brought against federal officials is
similar. See,
e. g., Butz v.
Economou,
438 U. S. 478,
500-501 (1978).
694
avoid rendering the President "unduly cautious in the discharge
of his official duties." 457 U. S., at 752, n. 32.19
This reasoning provides no support for an immunity for
unofficial conduct. As we explained in
Fitzgerald,
"the sphere of protected action must be related closely to the
immunity's justifying purposes."
Id., at 755. Because of the
President's broad responsibilities, we recognized in that case an
immunity from damages claims arising out of official acts extending
to the "outer perimeter of his authority."
Id., at 757. But
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. See
id., at 759 (Burger, C. J.,
concurring) (noting that "a President, like Members of Congress,
judges, prosecutors, or congressional aides-all having absolute
immunity-are not immune for acts outside official duties"); see
also
id., at 761, n. 4.
Moreover, when defining the scope of an immunity for acts
clearly taken
within an official capacity, we have applied a
functional approach. "Frequently our decisions have held that an
official's absolute immunity should extend only to acts in
performance of particular functions of his office."
Id., at
755. Hence, for example, a judge's absolute immunity does not
extend to actions performed in a purely administra-
19Petitioner draws our attention to dicta in
Fitzgerald,
which he suggests are helpful to his cause. We noted there that
"[b]ecause 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," 457
U. S., at 751, and suggested further that "[c]ognizance of ...
personal vulnerability frequently could distract a President from
his public duties,"
id., at 753. Petitioner argues that in
this aspect the Court's concern was parallel to the issue he
suggests is of great importance in this case, the possibility that
a sitting President might be distracted by the need to participate
in litigation during the pendency of his office. In context,
however, it is clear that our dominant concern was with the
diversion of the President's attention during the decisionmaking
process caused by needless worry as to the possibility of damages
actions stemming from any particular official decision. Moreover,
Fitzgerald did not present the issue raised in this case
because that decision involved claims against a
former
President.
695
tive capacity. See
Forrester v.
White, 484 U. S. 219, 229-230
(1988). As our opinions have made clear, immunities are grounded in
"the nature of the function performed, not the identity of the
actor who performed it."
Id., at 229.
Petitioner's effort to construct an immunity from suit for
unofficial acts grounded purely in the identity of his office is
unsupported by precedent.
V
We are also unpersuaded by the evidence from the historical
record to which petitioner has called our attention. He points to a
comment by Thomas Jefferson protesting the subpoena
duces
tecum Chief Justice Marshall directed to him in the Burr
trial,20 a statement in the diaries kept by Senator William Maclay
of the first Senate debates, in which thenVice President John Adams
and Senator Oliver Ellsworth are recorded as having said that "the
President personally [is] not ... subject to any process whatever,"
lest it be "put ... in the power of a common Justice to exercise
any Authority over him and Stop the Whole Machine of Government,"
21 and to a quotation from Justice Story's Commentaries on the
Constitution.22 None of these sources sheds much light on the
question at hand.23
20 In Jefferson's view, the subpoena jeopardized the separation
of powers by subjecting the Executive Branch to judicial command.
See 10 Works of Thomas Jefferson 404, n. (P. Ford ed. 1905);
Fitzgerald, 457 U. S., at 751,
219 Documentary History of First Federal Congress of the United
States 168 (K. Bowling & H. Veit eds. 1988) (Diary of William
Maclay).
22 See 3 J. Story, Commentaries on the Constitution of the
United States § 1563, pp. 418-419 (1833).
23Jefferson's argument provides little support for petitioner's
position.
As we explain later, the prerogative Jefferson claimed was
denied him by the Chief Justice in the very decision Jefferson was
protesting, and this Court has subsequently reaffirmed that
holding. See
United States v.
Nixon, 418 U. S. 683 (1974). The
statements supporting a similar proposition recorded in Senator
Maclay's diary are inconclusive of the issue before us here for the
same reason. In addition, this material is hardly proof of the
unequivocal common understanding at the time of the founding.
Immediately after mentioning the positions of Adams and
Ellsworth,
696
Respondent, in turn, has called our attention to conflicting
historical evidence. Speaking in favor of the Constitution's
adoption at the Pennsylvania Convention, James Wilsonwho had
participated in the Philadelphia Convention at which the document
was drafted-explained that, although the President "is placed [on]
high," "not a single privilege is annexed to his character; far
from being above the laws, he is amenable to them in his private
character as a citizen, and in his public character by
impeachment." 2 J. Elliot, Debates on the Federal Constitution 480
(2d ed. 1863) (emphasis deleted). This description is consistent
with both the doctrine of Presidential immunity as set forth in
Fitzgerald and rejection of the immunity claim in this case.
With respect to acts taken in his "public character"-that is,
official actsthe President may be disciplined principally by
impeachment, not by private lawsuits for damages. But he is
otherwise subject to the laws for his purely private acts.
In the end, as applied to the particular question before us, we
reach the same conclusion about these historical materials that
Justice Jackson described when confronted with an issue concerning
the dimensions of the President's power.
Maclay went on to point out in his diary that he virulently
disagreed with them, concluding that his opponents' view "[s]hows
clearly how amazingly fond of the old leven many People are." Diary
of Maclay 168.
Finally, Justice Story's comments in his constitutional law
treatise provide no substantial support for petitioner's position.
Story wrote that because the President's "incidental powers" must
include "the power to perform [his duties], without any
obstruction," he "cannot, therefore, be liable to arrest,
imprisonment, or detention, while he is in the discharge of the
duties of his office;
andfor this purpose his person must be
deemed, in civil cases at least, to possess an official
inviolability." 3 Story § 1563, at 418-419 (emphasis added). Story
said only that
"an official inviolability,"
ibid.
(emphasis added), was necessary to preserve the President's ability
to perform the functions of the office; he did not specify the
dimensions of the necessary immunity. While we have held that an
immunity from suits grounded on official acts is necessary to serve
this purpose, see
Fitzgerald, 457 U. S., at 749, it does not
follow that the broad immunity from
all civil damages suits
that petitioner seeks is also necessary.
697
"Just what our forefathers did envision, or would have
envisioned had they foreseen modern conditions, must be divined
from materials almost as enigmatic as the dreams Joseph was called
upon to interpret for Pharoah. A century and a half of partisan
debate and scholarly speculation yields no net result but only
supplies more or less apt quotations from respected sources on each
side .... They largely cancel each other."
Youngstown Sheet
&
Tube Co. v.
Sawyer, 343 U. S. 579, 634-635
(1952) (concurring opinion).
VI
Petitioner's strongest argument supporting his immunity claim is
based on the text and structure of the Constitution. He does not
contend that the occupant of the Office of the President is "above
the law," in the sense that his conduct is entirely immune from
judicial scrutiny.24 The President argues merely for a postponement
of the judicial proceedings that will determine whether he violated
any law. His argument is grounded in the character of the office
that was created by Article II of the Constitution, and relies on
separation-of-powers principles that have structured our
constitutional arrangement since the founding.
As a starting premise, petitioner contends that he occupies a
unique office with powers and responsibilities so vast and
important that the public interest demands that he devote his
undivided time and attention to his public duties. He submits
that-given the nature of the office-the doctrine of separation of
powers places limits on the authority of the
24 For that reason, the argument does not place any reliance on
the English ancestry that informs our common-law jurisprudence; he
does not claim the prerogatives of the monarchs who asserted that
"[t]he King can do no wrong." See 1 W. Blackstone, Commentaries
*246. Although we have adopted the related doctrine of sovereign
immunity, the common-law fiction that "[t]he king ... is not only
incapable of
doing wrong, but even of
thinking
wrong,"
ibid., was rejected at the birth of the Republic.
See,
e. g., Nevada v.
Hall, 440 U. S. 410, 415, and
nn. 7-8 (1979);
Langford v.
United States, 101 U. S. 341, 342-343
(1880).
698
Federal Judiciary to interfere with the Executive Branch that
would be transgressed by allowing this action to proceed.
We have no dispute with the initial premise of the argument.
Former Presidents, from George Washington to George Bush, have
consistently endorsed petitioner's characterization of the
office.25 After serving his term, Lyndon Johnson observed: "Of all
the 1,886 nights I was President, there were not many when I got to
sleep before 1 or 2 a.m., and there were few mornings when I didn't
wake up by 6 or 6:30."26 In 1967, the Twenty-fifth Amendment to the
Constitution was adopted to ensure continuity in the performance of
the powers and duties of the office; 27 one of the sponsors of that
Amendment stressed the importance of providing that "at all times"
there be a President "who has complete control and will be able to
perform" those duties.28 As Justice Jackson has pointed out, the
Presidency concentrates executive authority "in a single head in
whose choice the whole Nation has a part, making him the focus of
public hopes and expectations. In drama, magnitude and finality his
decisions so far overshadow any others that almost alone he fills
the public eye and ear."
Youngstown Sheet &
Tube
Co. v.
Sawyer, 343 U. S., at 653 (concurring opinion).
We have, in short, long recognized the "unique position in the
constitutional scheme" that this office occupies.
Fitzgerald,
25 See,
e. g., A. Tourtellot, The Presidents on
the Presidency 346-374 (1964) (citing comments of, among others,
George Washington, John Quincy Adams, Benjamin Harrison, Theodore
Roosevelt, William Howard Taft, and Woodrow Wilson); H. Finer, The
Presidency: Crisis and Regeneration 35-37 (1960) (citing similar
remarks by a number of Presidents, including James Monroe, James K.
Polk, and Harry Truman).
26 L. Johnson, The Vantage Point 425 (1971).
27The Amendment sets forth,
inter alia, an elaborate
procedure for Presidential succession in the event that the Chief
Executive becomes incapacitated. See U. S. Const., Arndt. 25, §§
3-4.
28111 Congo Rec. 15595 (1965) (remarks of Sen. Bayh).
699
457 U. S., at 749.29 Thus, while we suspect that even in our
modern era there remains some truth to Chief Justice Marshall's
suggestion that the duties of the Presidency are not entirely
"unremitting,"
United States v.
Burr, 25 F. Cas. 30,
34 (No. 14,692d) (CC Va. 1807), we accept the initial premise of
the Executive's argument.
It does not follow, however, that separation-of-powers
principles would be violated by allowing this action to proceed.
The doctrine of separation of powers is concerned with the
allocation of official power among the three coequal branches of
our Government. The Framers "built into the tripartite Federal
Government ... a self-executing safeguard against the encroachment
or aggrandizement of one branch at the expense of the other."
Buckley v.
Valeo, 424 U. S., at 122.30 Thus, for
example, the Congress may not exercise the judicial power to revise
final judgments,
Plaut v.
Spendthrift
29We noted in
Fitzgerald: "Article II, § 1, of the
Constitution provides that '[t]he executive Power shall be vested
in a President of the United States ... .' This grant of authority
establishes the President as the chief constitutional officer of
the Executive Branch, entrusted with supervisory and policy
responsibilities of utmost discretion and sensitivity. These
include the enforcement of federal law-it is the President who is
charged constitutionally to 'take Care that the Laws be faithfully
executed'; the conduct of foreign affairs-a realm in which the
Court has recognized that '[i]t would be intolerable that courts,
without the relevant information, should review and perhaps nullify
actions of the Executive taken on information properly held
secret'; and management of the Executive Brancha task for which
'imperative reasons requir[e] an unrestricted power [in the
President] to remove the most important of his subordinates in
their most important duties.''' 457 U. S., at 749-750 (footnotes
omitted).
30 See
Loving v.
United States, 517 U. S. 748,756-757
(1996);
Mistretta v.
United States, 488 U. S. 361, 382 (1989)
("[C]oncern of encroachment and aggrandizement ... has animated our
separation-of-powers jurisprudence"); The Federalist No. 51, p. 349
(J. Cooke ed. 1961) ("[T]he great security against a gradual
concentration of the several powers in the same department,
consists in giving to those who administer each department the
necessary constitutional means, and personal motives, to resist
encroachments of the others").
700
Farm, Inc., 514 U. S. 211 (1995),31
or the executive power to manage an airport, see
Metropolitan
Washington Airports Authority v.
Citizens for Abatement of
Aircraft Noise, Inc., 501 U. S. 252, 276 (1991)
(holding that "[i]f the power is executive, the Constitution does
not permit an agent of Congress to exercise it").32 See
J.
W Hampton, Jr., &
Co. v.
United States,
276 U. S. 394,
406 (1928) (Congress may not "invest itself or its members with
either executive power or judicial power"). Similarly, the
President may not exercise the legislative power to authorize the
seizure of private property for public use.
Youngstown, 343
U. S., at 588. And, the judicial power to decide cases and
controversies does not include the provision of purely advisory
opinions to the Executive,33 or permit the federal courts to
resolve nonjusticiable questions.34
31 See also
United States v.
Klein, 13 Wall. 128,
147 (1872) (noting that Congress had "inadvertently passed the
limit which separates the legislative from the judicial
power").
32 See also
Bowsher v.
Synar, 478 U. S. 714, 726 (1986)
("structure of the Constitution does not permit Congress to execute
the laws"). Cf.
INS v.
Chadha, 462 U. S. 919, 958
(1983);
Springer v.
Philippine Islands, 277 U. S. 189, 202-203
(1928).
33 See
United States v.
Ferreira, 13 How. 40
(1852);
Hayburn's Case, 2 Dall. 409 (1792). As we explained
in
Chicago &
Southern Air Lines, Inc. v.
Waterman S. S.
Corp., 333 U. S. 103, 113
(1948): "This Court early and wisely determined that it would not
give advisory opinions even when asked by the Chief Executive."
More generally, "we have broadly stated that 'executive or
administrative duties of a nonjudicial nature may not be imposed on
judges holding office under Art. III of the Constitution.'"
Morrison v.
Olson, 487 U. S. 654, 677 (1988)
(quoting
Buckley v.
Valeo, 424 U. S. 1, 123 (1976)
(per curiam)). These restrictions on judicial activities
"help ensure the independence of the Judicial Branch and to prevent
the Judiciary from encroaching into areas reserved for the other
branches." 487 U. S., at 678; see also
Mistretta v.
United States, 488 U. S., at 385.
34 We have long held that the federal courts may not resolve
such matters. See,
e. g., Luther v.
Borden, 7 How. 1
(1849). As we explained in
Nixon v.
United States,
506 U. S. 224
(1993): "A controversy is nonjusticiable-i.
e., involves a
political question-where there is a 'textually demon-
701
Of course the lines between the powers of the three branches are
not always neatly defined. See
Mistretta v.
United
States, 488 U. S.
361, 380-381 (1989).35 But in this case there is no suggestion
that the Federal Judiciary is being asked to perform any function
that might in some way be described as "executive." Respondent is
merely asking the courts to exercise their core Article III
jurisdiction to decide cases and controversies. Whatever the
outcome of this case, there is no possibility that the decision
will curtail the scope of the official powers of the Executive
Branch. The litigation of questions that relate entirely to the
unofficial conduct of the individual who happens to be the
President poses no perceptible risk of misallocation of either
judicial power or executive power.
Rather than arguing that the decision of the case will produce
either an aggrandizement of judicial power or a narrowing of
executive power, petitioner contends that-as a byproduct of an
otherwise traditional exercise of judicial power-burdens will be
placed on the President that will hamper the performance of his
official duties. We have recognized that "[e]ven when a branch does
not arrogate power to itself ... the separation-of-powers doctrine
requires that a branch not impair another in the performance of its
constitutional duties."
Loving v.
United States,
517 U. S. 748,
757 (1996); see also
Nixon v.
Administrator of General
Services, 433 U.
S. 425, 443 (1977). As a factual matter, petitioner contends
that this particular case-as well as the potential
strable constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and
manageable standards for resolving it ... .'
Baker v.
Carr, 369 U.
S. 186,217 (1962). But the courts must, in the first instance,
interpret the text in question and determine whether and to what
extent the issue is textually committed. See
ibid.; Powell
v.
McCormack, 395 U. S. 486, 519
(1969)."
Id., at 228.
35 See also Olson, 487 U. S., at 693-694; Nixon v. Administrator
of General Services,
433 U. S. 425, 443
(1977); United States v. Nixon,
418 U. S. 683, 707
(1974); Youngstown Sheet & Tube Co. v. Sawyer,
343 U. S. 579, 635 (1952)
(Jackson, J., concurring).
702
additional litigation that an affirmance of the Court of Appeals
judgment might spawn-may impose an unacceptable burden on the
President's time and energy, and thereby impair the effective
performance of his office.
Petitioner's predictive judgment finds little support in either
history or the relatively narrow compass of the issues raised in
this particular case. As we have already noted, in the more than
200- year history of the Republic, only three sitting Presidents
have been subjected to suits for their private actions.36 See
supra, at 692. If the past is any indicator, it seems
unlikely that a deluge of such litigation will ever engulf the
Presidency. As for the case at hand, if properly managed by the
District Court, it appears to us highly unlikely to occupy any
substantial amount of petitioner's time.
Of greater significance, petitioner errs by presuming that
interactions between the Judicial Branch and the Executive, even
quite burdensome interactions, necessarily rise to the level of
constitutionally forbidden impairment of the Executive's ability to
perform its constitutionally mandated functions. "[O]ur ... system
imposes upon the Branches a degree of overlapping responsibility, a
duty of interdependence as well as independence the absence of
which 'would preclude the establishment of a Nation capable of
governing itself effectively.'"
Mistretta, 488 U. S., at 381
(quoting
Buck-
36 In
Fitzgerald, we were able to discount the lack of
historical support for the proposition that official-capacity
actions against the President posed a serious threat to the office
on the ground that a right to sue federal officials for damages as
a result of constitutional violations had only recently been
recognized. See 457 U. S., at 753, n. 33;
Bivens v.
Six
Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). The
situation with respect to suits against the President for actions
taken in his private capacity is quite different because such suits
may be grounded on legal theories that have always been applicable
to any potential defendant. Moreover, because the President has
contact with far fewer people in his private life than in his
official capacity, the class of potential plaintiffs is
considerably smaller and the risk of litigation less intense.
703
ley, 424 U. S., at 121). As Madison explained, separation
of powers does not mean that the branches "ought to have no
partial agency in, or no
controul over the acts of
each other." 37 The fact that a federal court's exercise of its
traditional Article III jurisdiction may significantly burden the
time and attention of the Chief Executive is not sufficient to
establish a violation of the Constitution. Two long-settled
propositions, first announced by Chief Justice Marshall, support
that conclusion.
First, we have long held that when the President takes official
action, the Court has the authority to determine whether he has
acted within the law. Perhaps the most dramatic example of such a
case is our holding that President Truman exceeded his
constitutional authority when he issued an order directing the
Secretary of Commerce to take possession of and operate most of the
Nation's steel mills in order to avert a national catastrophe.
Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.
S. 579 (1952). Despite the serious impact of that decision on
the ability of the Executive Branch to accomplish its assigned
mission, and the substantial time that the President must
necessarily have devoted to the matter as a result of judicial
involvement, we exercised our Article III jurisdiction to decide
whether his official conduct conformed to the law. Our holding was
an application of the principle established in
Marbury v.
Madison, 1 Cranch 137 (1803), that "[i]t is emphatically the
province and duty of the judicial department to say what the law
is."
Id., at 177.
Second, it is also settled that the President is subject to
judicial process in appropriate circumstances. Although Thomas
Jefferson apparently thought otherwise, Chief Justice Marshall,
when presiding in the treason trial of Aaron Burr, ruled that a
subpoena
duces tecum could be directed
37The Federalist No. 47, pp. 325-326 (J. Cooke ed. 1961)
(emphasis in original). See
Mistretta, 488 U. S., at 381;
Nixon v.
Administrator of General Services, 433 U.
S., at 442, n. 5.
704
to the President.
United States v.
Burr, 25 F.
Cas. 30 (No. 14,692d) (CC Va. 1807).38 We unequivocally and
emphatically endorsed Marshall's position when we held that
President Nixon was obligated to comply with a subpoena commanding
him to produce certain tape recordings of his conversations with
his aides.
United States v.
Nixon, 418 U. S. 683
(1974). As we explained, "neither the doctrine of separation of
powers, nor the need for confidentiality of high-level
communications, without more, can sustain an absolute, unqualified
Presidential privilege of immunity from judicial process under all
circumstances."
Id., at 706.39
Sitting Presidents have responded to court orders to provide
testimony and other information with sufficient frequency that such
interactions between the Judicial and Executive Branches can
scarcely be thought a novelty. President Monroe responded to
written interrogatories, see Rotunda, Presidents and Ex-Presidents
as Witnesses: A Brief Historical Footnote, 1975 U. Ill. L. Forum 1,
5-6, President Nixonas noted above-produced tapes in response to a
subpoena
38 After the decision was rendered, Jefferson expressed his
distress in a letter to a prosecutor at the trial, noting that
"[t]he Constitution enjoins [the President's] constant agency in
the concerns of 6. millions of people." 10 Works of Thomas
Jefferson 404, n. (P. Ford ed. 1905). He asked: "Is the law
paramount to this, which calls on him on behalf of a single one?"
Ibid.; see also
Fitzgerald, 457 U. S., at 751-752, n.
31 (quoting Jefferson's comments at length). For Chief Justice
Marshall, the answer-quite plainly-was yes.
39 Of course, it does not follow that a court may "'proceed
against the president as against an ordinary individual,'"
United States v.
Nixon, 418 U. S., at 715 (quoting
United States v.
Burr, 25 F. Cas. 187, 192 (No.
14,694)
(CC Va. 1807)). Special caution is appropriate if
the materials or testimony sought by the court relate to a
President's official activities, with respect to which "[t]he
interest in preserving confidentiality is weighty indeed and
entitled to great respect." 418 U. S., at 712. We have made clear
that in a criminal case the powerful interest in the "fair
administration of criminal justice" requires that the evidence be
given under appropriate circumstances lest the "very integrity of
the judicial system" be eroded.
Id., at 709, 711-712.
705
duces tecum, see
United States v.
Nixon,
President Ford complied with an order to give a deposition in a
criminal trial,
United States v.
Fromme, 405 F. Supp.
578 (ED Cal. 1975), and President Clinton has twice given
videotaped testimony in criminal proceedings, see
United
States v.
McDougal, 934 F. Supp. 296 (ED Ark. 1996);
United States v.
Branscum, No. LRP-CR-96-49 (ED Ark.,
June 7, 1996). Moreover, sitting Presidents have also voluntarily
complied with judicial requests for testimony. President Grant gave
a lengthy deposition in a criminal case under such circumstances, 1
R. Rotunda & J. Nowak, Treatise on Constitutional Law § 7.1 (2d
ed. 1992), and President Carter similarly gave videotaped testimony
for use at a criminal trial,
id., § 7.1(b) (Supp. 1997).
In sum, "[i]t is settled law that the separation-of-powers
doctrine does not bar every exercise of jurisdiction over the
President of the United States."
Fitzgerald, 457 U. S., at
753-754. If the Judiciary may severely burden the Executive Branch
by reviewing the legality of the President's official conduct, and
if it may direct appropriate process to the President himself, it
must follow that the federal courts have power to determine the
legality of his unofficial conduct. The burden on the President's
time and energy that is a mere byproduct of such review surely
cannot be considered as onerous as the direct burden imposed by
judicial review and the occasional invalidation of his official
actions.40 We therefore hold that the doctrine of separation of
powers does not
40 There is, no doubt, some truth to Learned Hand's comment that
a lawsuit should be "dread[ed] ... beyond almost anything else
short of sickness and death." 3 Association of the Bar of the City
of New York, Lectures on Legal Topics 105 (1926). We recognize that
a President, like any other official or private citizen, may become
distracted or preoccupied by pending litigation. Presidents and
other officials face a variety of demands on their time, however,
some private, some political, and some as a result of official
duty. While such distractions may be vexing to those subjected to
them, they do not ordinarily implicate constitutional
separation-of-powers concerns.
706
require federal courts to stay all private actions against the
President until he leaves office.
The reasons for rejecting such a categorical rule apply as well
to a rule that would require a stay "in all but the most
exceptional cases." Brief for Petitioner i. Indeed, if the Framers
of the Constitution had thought it necessary to protect the
President from the burdens of private litigation, we think it far
more likely that they would have adopted a categorical rule than a
rule that required the President to litigate the question whether a
specific case belonged in the "exceptional case" subcategory. In
all events, the question whether a specific case should receive
exceptional treatment is more appropriately the subject of the
exercise of judicial discretion than an interpretation of the
Constitution. Accordingly, we turn to the question whether the
District Court's decision to stay the trial until after petitioner
leaves office was an abuse of discretion.
VII
The Court of Appeals described the District Court's
discretionary decision to stay the trial as the "functional
equivalent" of a grant of temporary immunity. 72 F. 3d, at 1361, n.
9. Concluding that petitioner was not constitutionally entitled to
such an immunity, the court held that it was error to grant the
stay.
Ibid. Although we ultimately conclude that the stay
should not have been granted, we think the issue is more difficult
than the opinion of the Court of Appeals suggests.
Strictly speaking the stay was not the functional equivalent of
the constitutional immunity that petitioner claimed, because the
District Court ordered discovery to proceed. Moreover, a stay of
either the trial or discovery might be justified by considerations
that do not require the recognition of any constitutional immunity.
The District Court has broad discretion to stay proceedings as an
incident to its power to control its own docket. See,
e.
g., Landis v.
North
707
American Co., 299 U. S. 248, 254
(1936). As we have explained, "[e]specially in cases of
extraordinary public moment, [a plaintiff] may be required to
submit to delay not immoderate in extent and not oppressive in its
consequences if the public welfare or convenience will thereby be
promoted."
Id., at 256. Although we have rejected the
argument that the potential burdens on the President violate
separation-of-powers principles, those burdens are appropriate
matters for the District Court to evaluate in its management of the
case. The high respect that is owed to the office of the Chief
Executive, though not justifying a rule of categorical immunity, is
a matter that should inform the conduct of the entire proceeding,
including the timing and scope of discovery.41
Nevertheless, we are persuaded that it was an abuse of
discretion for the District Court to defer the trial until after
the President leaves office. Such a lengthy and categorical stay
takes no account whatever of the respondent's interest in bringing
the case to trial. The complaint was filed within the statutory
limitations period-albeit near the end of that period-and delaying
trial would increase the danger of
41 Although these claims are in fact analytically distinct, the
District Court does not appear to have drawn that distinction.
Rather than basing its decision on particular factual findings that
might have buttressed an exercise of discretion, the District Court
instead suggested that a discretionary stay was supported by the
legal conclusion that such a stay was required by
Fitzgerald. See 869 F. Supp., at 699. We therefore reject
petitioner's argument that we lack jurisdiction over respondent's
cross-appeal from the District Court's alternative holding that its
decision was "also permitted,"
inter alia, "under the equity
powers of the Court."
Ibid. The Court of Appeals correctly
found that pendent appellate jurisdiction over this issue was
proper. See 72 F. 3d, at 1357, n. 4. The District Court's legal
ruling that the President was protected by a temporary immunity
from trial-but not discovery-was "inextricably intertwined,"
Swint v.
Chambers County Comm'n, 514 U. S. 35, 51 (1995),
with its suggestion that a discretionary stay having the same
effect might be proper; indeed, "review of the [latter] decision
[is] necessary to ensure meaningful review of the [former],"
ibid.
708
prejudice resulting from the loss of evidence, including the
inability of witnesses to recall specific facts, or the possible
death of a party.
The decision to postpone the trial was, furthermore, premature.
The proponent of a stay bears the burden of establishing its need.
Id., at 255. In this case, at the stage at which the
District Court made its ruling, there was no way to assess whether
a stay of trial after the completion of discovery would be
warranted. Other than the fact that a trial may consume some of the
President's time and attention, there is nothing in the record to
enable a judge to assess the potential harm that may ensue from
scheduling the trial promptly after discovery is concluded. We
think the District Court may have given undue weight to the concern
that a trial might generate unrelated civil actions that could
conceivably hamper the President in conducting the duties of his
office. If and when that should occur, the court's discretion would
permit it to manage those actions in such fashion (including
deferral of trial) that interference with the President's duties
would not occur. But no such impingement upon the President's
conduct of his office was shown here.
VIII
We add a final comment on two matters that are discussed at
length in the briefs: the risk that our decision will generate a
large volume of politically motivated harassing and frivolous
litigation, and the danger that national security concerns might
prevent the President from explaining a legitimate need for a
continuance.
We are not persuaded that either of these risks is serious.
Most frivolous and vexatious litigation is terminated at the
pleading stage or on summary judgment, with little if any personal
involvement by the defendant. See Fed. Rules Civ. Proc. 12, 56.
Moreover, the availability of sanctions provides a significant
deterrent to litigation directed at the President in his unofficial
capacity for purposes of political
709
gain or harassment.42 History indicates that the likelihood that
a significant number of such cases will be filed is remote.
Although scheduling problems may arise, there is no reason to
assume that the district courts will be either unable to
accommodate the President's needs or unfaithful to the
tradition-especially in matters involving national securityof
giving "the utmost deference to Presidential responsibilities."43
Several Presidents, including petitioner, have given testimony
without jeopardizing the Nation's security. See
supra, at
704-705. In short, we have confidence in the ability of our federal
judges to deal with both of these concerns.
If Congress deems it appropriate to afford the President
stronger protection, it may respond with appropriate legislation.
As petitioner notes in his brief, Congress has enacted more than
one statute providing for the deferral of civil litigation to
accommodate important public interests. Brief for Petitioner 34-36.
See,
e. g., 11 U. S. C. § 362 (litigation against
debtor stayed upon filing of bankruptcy petition); Soldiers' and
Sailors' Civil Relief Act of 1940, 50 U. S. C. App. §§ 501-525
(provisions governing,
inter alia, tolling or stay of civil
claims by or against military personnel during course of active
duty). If the Constitution embodied the rule that
42 See,
e. g., Fed. Rule Civ. Proc. 11; 28 U. S. C. §
1927;
Chambers v.
NASCa, Inc., 501 U. S. 32, 50 (1991)
(noting that "if in the informed discretion of the court, neither
the statute nor the Rules are up to the task, the court may safely
rely on its inherent power" in imposing appropriate sanctions).
Those sanctions may be set at a level "sufficient to deter
repetition of such conduct or comparable conduct by others
similarly situated." Fed. Rule Civ. Proc. 11 (c)(2). As Rule 11
indicates, sanctions may be appropriate where a claim is "presented
for any improper purpose, such as to harass," including any claim
based on "allegations and other factual contentions [lacking]
evidentiary support" or unlikely to prove wellgrounded after
reasonable investigation. Rules l1(b)(l), (3).
43 United States v.
Nixon, 418 U. S., at 710-711;
see also
Fitzgerald, 457 U. S., at 753 ("Courts
traditionally have recognized the President's constitutional
responsibilities and status as factors counseling judicial
deference and restraint").
710
BREYER, J., concurring in judgment
the President advocates, Congress, of course, could not repeal
it. But our holding today raises no barrier to a statutory response
to these concerns.
The Federal District Court has jurisdiction to decide this case.
Like every other citizen who properly invokes that jurisdiction,
respondent has a right to an orderly disposition of her claims.
Accordingly, the judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE BREYER, concurring in the judgment.
I agree with the majority that the Constitution does not
automatically grant the President an immunity from civil lawsuits
based upon his private conduct. Nor does the "doctrine of
separation of powers ... require federal courts to stay" virtually
"all private actions against the President until he leaves office."
Ante, at 705-706. Rather, as the Court of Appeals stated,
the President cannot simply rest upon the claim that a private
civil lawsuit for damages will "interfere with the constitutionally
assigned duties of the Executive Branch ... without detailing any
specific responsibilities or explaining how or the degree to which
they are affected by the suit."
72 F.3d
1354, 1361 (CA8 1996). To obtain a postponement the President
must "bea[r] the burden of establishing its need."
Ante, at
708.
In my view, however, once the President sets forth and explains
a conflict between judicial proceeding and public duties, the
matter changes. At that point, the Constitution permits a judge to
schedule a trial in an ordinary civil damages action (where
postponement normally is possible without overwhelming damage to a
plaintiff) only within the constraints of a constitutional
principle-a principle that forbids a federal judge in such a case
to interfere with the President's discharge of his public duties. I
have no doubt that the Constitution contains such a principle
applicable to civil suits, based upon Article II's vesting of the
entire "executive Power" in a single individual, implemented
through the Con-
711
stitution's structural separation of powers, and revealed both
by history and case precedent.
I recognize that this case does not require us now to apply the
principle specifically, thereby delineating its contours; nor need
we now decide whether lower courts are to apply it directly or
categorically through the use of presumptions or rules of
administration. Yet I fear that to disregard it now may appear to
deny it. I also fear that the majority's description of the
relevant precedents de-emphasizes the extent to which they support
a principle of the President's independent authority to control his
own time and energy, see,
e. g., ante, at 693, 694
(describing the "central concern" of
Nixon v.
Fitzgerald, 457 U. S. 731 (1982), as
"to avoid rendering the President 'unduly cautious' ");
ante, at 695, 696, and n. 23 (describing statements by
Story, Jefferson, Adams, and Ellsworth as providing "little" or "no
substantial support" for the President's position). Further, if the
majority is wrong in predicting the future infrequency of private
civil litigation against sitting Presidents,
ante, at 702,
acknowledgment and future delineation of the constitutional
principle will prove a practically necessary institutional
safeguard. For these reasons, I think it important to explain how
the Constitution's text, history, and precedent support this
principle of judicial noninterference with Presidential functions
in ordinary civil damages actions.
I
The Constitution states that the "executive Power shall be
vested in a President." Art. II, § 1. This constitutional
delegation means that a sitting President is unusually busy, that
his activities have an unusually important impact upon the lives of
others, and that his conduct embodies an authority bestowed by the
entire American electorate. He (along with his constitutionally
subordinate Vice President) is the only official for whom the
entire Nation votes, and is the only elected officer to represent
the entire Nation both domestically and abroad.
712
BREYER, J., concurring in judgment
This constitutional delegation means still more. Article II
makes a single President responsible for the actions of the
Executive Branch in much the same way that the entire Congress is
responsible for the actions of the Legislative Branch, or the
entire Judiciary for those of the Judicial Branch. It thereby
creates a constitutional equivalence between a single President, on
the one hand, and many legislators, or judges, on the other.
The Founders created this equivalence by consciously deciding to
vest Executive authority in one person rather than several. They
did so in order to focus, rather than to spread, Executive
responsibility thereby facilitating accountability. They also
sought to encourage energetic, vigorous, decisive, and speedy
execution of the laws by placing in the hands of a single,
constitutionally indispensable, individual the ultimate authority
that, in respect to the other branches, the Constitution divides
among many. Compare U. S. Const., Art. II, § 1 (vesting power in "a
President"), with U. S. Const., Art. I, § 1 (vesting power in "a
Congress" that "consist[s] of a Senate and House of
Representatives"), and U. S. Const., Art. III, § 1 (vesting power
in a "supreme Court" and "inferior Courts").
The authority explaining the nature and importance of this
decision is legion. See,
e. g., J. Locke, Second
Treatise of Civil Government § 144 (J. Gough ed. 1947)
(desirability of a perpetual Executive); 1 W. Blackstone,
Commentaries *242*243 (need for single Executive); The Federalist
No. 70, p. 423 (C. Rossiter ed. 1961) (A. Hamilton) (Executive
"[e]nergy" needed for security, "steady administration of the
laws," "protection of property," "justice," and protection of
"liberty"); Ellsworth, The Landholder, VI, in Essays on the
Constitution 161, 163 (P. Ford ed. 1892) ("supreme executive should
be one person, and unfettered otherwise than by the laws he is to
execute");
Morrison v.
Olson, 487 U. S. 654, 698-699
(1988) (SCALIA, J., dissenting) (describing history);
id.,
at 705 (describing textual basis);
id., at 729
(describing
713
policy arguments). See also The Federalist No. 71, at 431 (A.
Hamilton); P. Kurland, Watergate and the Constitution 135 (1978)
(President is "sole indispensable man in government" and "should
not be called" from his duties "at the instance of any other ...
branch of government"); Calabresi, Some Normative Arguments for the
Unitary Executive, 48 Ark. L. Rev. 23, 37-47 (1995). Cf. T.
Roosevelt, An Autobiography 372 (1913).
For present purposes, this constitutional structure means that
the President is not like Congress, for Congress can function as if
it were whole, even when up to half of its members are absent, see
U. S. Const., Art. I, § 5, cl. 1. It means that the President is
not like the Judiciary, for judges often can designate other
judges,
e. g., from other judicial circuits, to sit
even should an entire court be detained by personal litigation. It
means that, unlike Congress, which is regularly out of session, U.
S. Const., Art. I, §§ 4, 5, 7, the President never adjourns.
More importantly, these constitutional objectives explain why a
President, though able to delegate duties to others, cannot
delegate ultimate responsibility or the active obligation to
supervise that goes with it. And the related constitutional
equivalence between President, Congress, and the Judiciary means
that judicial scheduling orders in a private civil case must not
only take reasonable account of, say, a particularly busy schedule,
or a job on which others critically depend, or an underlying
electoral mandate. They must also reflect the fact that
interference with a President's ability to carry out his public
responsibilities is constitutionally equivalent to interference
with the ability of the entirety of Congress, or the Judicial
Branch, to carry out its public obligations.
II
The leading case regarding Presidential immunity from suit is
Nixon v.
Fitzgerald. Before discussing
Fitzgerald, it is helpful to understand the historical
precedent on which it
714
BREYER, J., concurring in judgment
relies. While later events have called into question some of the
more extreme views on Presidential immunity, the essence of the
constitutional principle remains true today. The historical
sources, while not in themselves fully determinative, in
conjunction with this Court's precedent inform my judgment that the
Constitution protects the President from judicial orders in private
civil cases to the extent that those orders could significantly
interfere with his efforts to carry out his ongoing public
responsibilities.
A
Three of the historical sources this Court cited in
Fitzgerald, 457 U. S., at 749, 750-752, n. 31-a commentary
by Joseph Story, an argument attributed to John Adams and Oliver
Ellsworth, and a letter written by Thomas Jeffersoneach make clear
that this is so.
First, Joseph Story wrote in his Commentaries:
"There are ... incidental powers, belonging to the executive
department, which are necessarily implied from the nature of the
functions, which are confided to it. Among those, must necessarily
be included the power to perform them, without any obstruction or
impediment whatsoever. The president cannot, therefore, be liable
to arrest, imprisonment, or detention, while he is in the discharge
of the duties of his office; and for this purpose his person
must be deemed, in civil cases at least, to possess an official
inviolability." 3 J. Story, Commentaries on the Constitution of
the United States § 1563, pp. 418-419 (1833) (emphasis added),
quoted in Fitzgerald, supra, at 749.
As interpreted by this Court in
Nixon v.
Fitzgerald, the words "for this purpose" would seem to refer
to the President's need for "official inviolability" in order to
"perform" the duties of his office without "obstruction or
impediment." As so read, Story's commentary does not explicitly
define the
715
contours of "official inviolability." But it does suggest that
the "inviolability" is time bound ("while ... in the discharge of
the duties of his office"); that it applies in private lawsuits
(for it attaches to the President's "person" in "civil cases"); and
that it is functional ("necessarily implied from the nature of the
[President's] functions").
Since
Fitzgerald did not involve a physical constraint,
the Court's reliance upon Justice Story's commentary makes clear,
in the Court's view, that the commentary does not limit the scope
of "inviolability" to an immunity from a physical imprisonment,
physical detention, or physical "arrest"-a now abandoned procedure
that permitted the arrest of certain civil case defendants
(e. g., those threatened by bankruptcy) during a civil
proceeding.
I would therefore read Story's commentary to mean what it says,
namely, that Article II implicitly grants an "official
inviolability" to the President "while he is in the discharge of
the duties of his office," and that this inviolability must be
broad enough to permit him "to perform" his official duties without
"obstruction or impediment." As this Court has previously held, the
Constitution may grant this kind of protection implicitly; it need
not do so explicitly. See
Fitzgerald, supra, at 750, n. 31;
United States v.
Nixon, 418 U. S. 683, 705-706,
n. 16 (1974); cf.
McCulloch v.
Maryland, 4 Wheat.
316, 406 (1819).
Second, during the first Congress, then-Vice President John
Adams and then-Senator Oliver Ellsworth expressed a view of an
applicable immunity far broader than any currently asserted.
Speaking of a sitting President, they said that the" 'President,
personally, was not the subject to any process whatever .... For
[that] would ... put it in the power of a common justice to
exercise any authority over him and stop the whole machine of
Government.'" 457 U. S., at 751, n. 31 (quoting Journal of William
Maclay 167 (E. Maclay ed. 1890) (Sept. 26 journal entry reporting
exchange between Sen. Maclay, Adams, and Ellsworth)). They
716
BREYER, J., concurring in judgment
included in their claim a kind of immunity from criminal, as
well as civil, process. They responded to a counterargument-that
the President "was not above the laws," and would have to be
arrested if guilty of crimes-by stating that the President would
first have to be impeached, and could then be prosecuted. 9
Documentary History of First Federal Congress of United States 168
(K. Bowling & H. Veit eds. 1988) (Diary of William Maclay).
This Court's rejection of Adams' and Ellsworth's views in the
context of criminal proceedings, see
ante, at 703-704, does
not deprive those views of authority here. See
Fitzgerald,
supra, at 751-752, n. 31. Nor does the fact that Senator
William Maclay, who reported the views of Adams and Ellsworth,
"went on to point out in his diary that he virulently disagreed
with them."
Ante, at 696, n. 23. Maclay, unlike Adams and
Ellsworth, was not an important political figure at the time of the
constitutional debates. See Diary of William Maclay xi-xiii.
Third, in 1807, a sitting President, Thomas Jefferson, during a
dispute about whether the federal courts could subpoena his
presence in a criminal case, wrote the following to United States
Attorney George Hay:
"The leading principle of our Constitution is the independence
of the Legislature, executive and judiciary of each other, and none
are more jealous of this than the judiciary. But would the
executive be independent of the judiciary, if he were subject to
the commands of the latter, & to imprisonment for
disobedience; if the several courts could bandy him from pillar to
post, keep him constantly trudging from north to south & east
to west, and withdraw him entirely from his constitutional duties?"
10 Works of Thomas Jefferson 404, n. (P. Ford ed. 1905) (letter of
June 20,1807, from President Thomas Jefferson to United States
Attorney George Hay), quoted in Fitzgerald, supra, at 751,
n. 31.
717
Three days earlier Jefferson had written to the same
correspondent:
"To comply with such calls would leave the nation without an
executive branch, whose agency, nevertheless, is understood to be
so constantly necessary, that it is the sole branch which the
constitution requires to be always in function. It could not then
mean that it should be withdrawn from its station by any
co-ordinate authority." 10 Works of Thomas Jefferson, at 401
(letter of June 17, 1807, from Thomas Jefferson to George Hay).
Jefferson, like Adams and Ellsworth, argued strongly for an
immunity from both criminal and civil judicial process-an immunity
greater in scope than any immunity, or any special scheduling
factor, now at issue in the civil case before us. The significance
of his views for present purposes lies in his conviction that the
Constitution protected a sitting President from litigation that
would "withdraw" a President from his current "constitutional
duties." That concern may not have applied to Mr. Fitzgerald's 1982
case against a
former President, but it is at issue in the
current litigation.
Precedent that suggests to the contrary-that the Constitution
does
not offer a sitting President significant protections
from potentially distracting civil litigation-consists of the
following: (1) In several instances sitting Presidents have given
depositions or testified at criminal trials, and (2) this Court has
twice authorized the enforcement of subpoenas seeking documents
from a sitting President for use in a criminal case.
I agree with the majority that these precedents reject any
absolute Presidential immunity from all court process. But they do
not cast doubt upon Justice Story's basic conclusion that "in civil
cases," a sitting President "possess[es] an official inviolability"
as necessary to permit him to "perform" the duties of his office
without "obstruction or impediment."
718
BREYER, J., concurring in judgment
The first set of precedents tells us little about what the
Constitution commands, for they amount to voluntary actions on the
part of a sitting President. The second set of precedents amounts
to a search for documents, rather than a direct call upon
Presidential time. More important, both sets of precedents involve
criminal proceedings in which the President participated as
a witness. Criminal proceedings, unlike private civil proceedings,
are public acts initiated and controlled by the Executive Branch;
see
United States v.
Nixon, 418 U. S., at 693-696;
they are not normally subject to postponement, see U. S. Const.,
Amdt. 6; and ordinarily they put at risk, not a private citizen's
hope for monetary compensation, but a private citizen's freedom
from enforced confinement, 418 U. S., at 711-712, and n. 19;
Fitzgerald, 457 U. S., at 754, n. 37. See also
id.,
at 758, n. 41. Nor is it normally possible in a criminal case,
unlike many civil cases, to provide the plaintiff with interest to
compensate for scheduling delay. See,
e. g., Winter v.
Cerro Gordo County Conservation Bd., 925
F.2d 1069, 1073 (CA8 1991);
Foley v.
Lowell,
948 F.2d
10, 17-18 (CA1 1991);
Wooten v.
McClendon, 272
Ark. 61, 62-63, 612 S. W. 2d 105, 106 (1981).
The remaining precedent to which the majority refers does not
seem relevant in this case. That precedent,
Youngstown Sheet
&
Tube Co. v.
Sawyer, 343 U. S. 579, 585
(1952), concerns
official action. And any Presidential time
spent dealing with, or action taken in response to, that kind of
case
is part of a President's official duties. Hence court
review in such circumstances could not interfere with, or distract
from, official duties. Insofar as a court orders a President, in
any such a proceeding, to act or to refrain from action, it
defines, or determines, or clarifies the legal scope of an official
duty. By definition (if the order itself is lawful), it cannot
impede, or obstruct, or interfere with the President's basic
taskthe lawful exercise of his Executive authority. Indeed, if
constitutional principles counsel caution when judges consider an
order that directly requires the President properly
719
to carry out his official duties, see
Franklin v.
Massachusetts, 505 U. S. 788, 827 (1992)
(SCALIA, J., concurring in part and concurring in judgment)
(describing the "apparently unbroken historical tradition ...
implicit in the separation of powers" that a President may not be
ordered by the Judiciary to perform particular Executive acts);
id., at 802-803 (plurality opinion of O'CONNOR, J.), so much
the more must those principles counsel caution when such an order
threatens to
interfere with the President's properly
carrying out those duties.
B
Case law, particularly,
Nixon v.
Fitzgerald,
strongly supports the principle that judges hearing a private civil
damages action against a sitting President may not issue orders
that could significantly distract a President from his official
duties. In
Fitzgerald, the Court held that former President
Nixon was absolutely immune from civil damages lawsuits based upon
any conduct within the "outer perimeter" of his official
responsibilities. 457 U. S., at 756. The holding rested upon six
determinations that are relevant here.
First, the Court found that the Constitution assigns the
President
singularly important duties (thus warranting an
"absolute," rather than a "qualified," immunity).
Id., at
750-751. Second, the Court held that "recognition of immunity" does
not require a "specific textual basis" in the Constitution.
Id., at 750, n. 31. Third, although physical constraint of
the President was not at issue, the Court nevertheless considered
Justice Story's constitutional analysis, discussed
supra, at
714-715, "persuasive." 457 U. S., at 749. Fourth, the Court
distinguished contrary precedent on the ground that it involved
criminal, not civil, proceedings.
Id., at 754, and n. 37.
Fifth, the Court's concerns encompassed the fact that "the sheer
prominence of the President's office" could make him "an easily
identifiable target for suits for civil damages."
Id., at
752-753. Sixth, and most important, the Court rested its conclusion
in important part upon
720
BREYER, J., concurring in judgment
the fact that civil lawsuits "could distract a President from
his public duties, to the detriment of not only the President and
his office but also the Nation that the Presidency was designed to
serve."
Id., at 753.
The majority argues that this critical, last-mentioned, feature
of the case is dicta.
Ante, at 694, n. 19. In the majority's
view, since the defendant was a
former President, the
lawsuit could not have
distracted him from his official
duties; hence the case must rest entirely upon an alternative
concern, namely, that a President's fear of civil lawsuits based
upon his official duties could
distort his official
decisionmaking. The majority, however, overlooks the fact that
Fitzgerald set forth a single immunity (an absolute
immunity) applicable
both to sitting
and former
Presidents. Its reasoning focused upon both. Its key paragraph,
explaining why the President enjoys an absolute immunity rather
than a qualified immunity, contains seven sentences, four of which
focus primarily upon time and energy
distraction and three
of which focus primarily upon official decision
distortion.
Indeed, that key paragraph begins by stating:
"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." 457
U. S., at 751.
Moreover, the Court, in numerous other cases, has found the
problem of time and energy distraction a critically important
consideration militating in favor of a grant of immunity. See,
e. g., Harlow v.
Fitzgerald, 457 U. S. 800, 817-818
(1982) (qualified immunity for Presidential assistants based in
part on "costs of trial" and "burdens of broad-reaching discovery"
that are "peculiarly disruptive of effective government");
Imbler v.
Pachtman, 424 U. S. 409, 423 (1976)
(absolute immunity of prosecutors based in part upon concern about
"deflection of the prosecutor's energies from his public duties");
Tenney v.
Brandhove, 341 U. S. 367, 377 (1951)
(absolute im-
721
munity for legislators avoids danger they will "be subjected to
the cost and inconvenience and distractions of a trial"). Indeed,
cases that provide public officials, not with immunity, but with
special protective procedures such as interlocutory appeals, rest
entirely upon a "time and energy distraction" rationale. See
Behrens v.
Pelletier, 516 U. S. 299, 306, 308
(1996) ("[G]overnment official['s] right ... to avoid standing
trial [and] to avoid the burdens of such
pretrial matters as
discovery" are sufficient to support an immediate appeal from
"denial of a claim of qualified immunity" (citations and internal
quotation marks omitted));
Mitchell v.
Forsyth,
472 U. S. 511,
526 (1985) ("[E]ntitlement not to stand trial or face the other
burdens of litigation ... is effectively lost if a case is
erroneously permitted to go to trial" (citing
Harlow, supra,
at 818)).
It is not surprising that the Court's immunity-related case law
should rely on
both distraction and distortion, for the
ultimate rationale underlying those cases embodies both concerns.
See
Pierson v.
Ray, 386 U. S. 547, 554 (1967)
(absolute judicial immunity is needed because of "burden" of
litigation, which leads to "intimidation");
Bradley v.
Fisher, 13 Wall. 335, 349 (1872) (without absolute immunity
a judge's "office [would] be degraded and his usefulness
destroyed," and he would be forced to shoulder "burden" of keeping
full records for use in defending against suits). The cases
ultimately turn on an assessment of the threat that a civil damages
lawsuit poses to a public official's ability to perform his job
properly. And, whether they provide an absolute immunity, a
qualified immunity, or merely a special procedure, they ultimately
balance consequent potential public harm against private need.
Distraction and distortion are equally important ingredients of
that potential public harm. Indeed, a lawsuit that significantly
distracts an official from his public duties can distort the
content of a public decision just as can a threat of potential
future liability. If the latter concern can justify an "absolute"
immunity in the case of a Pres-
722
BREYER, J., concurring in judgment
ident no longer in office, where distraction is no longer a
consideration, so can the former justify, not immunity, but a
postponement, in the case of a sitting President.
III
The majority points to the fact that private plaintiffs have
brought civil damages lawsuits against a sitting President only
three times in our Nation's history; and it relies upon the threat
of sanctions to discourage, and "the court's discretion" to manage,
such actions so that "interference with the President's duties
would not occur."
Ante, at 708. I am less sanguine. Since
1960, when the last such suit was filed, the number of civil
lawsuits filed annually in Federal District Courts has increased
from under 60,000 to about 240,000, see Administrative Office of
the United States Courts, Statistical Tables for the Federal
Judiciary 27 (1995); Annual Report of the Director of the
Administrative Office of the United States Courts-1960, p. 224
(1961); the number of federal district judges has increased from
233 to about 650, see Administrative Office of United States
Courts, Judicial Business of United States Courts 7 (1994); Annual
Report of the Director of the Administrative Office of the United
States Courts
1960, supra, at 205; the time and expense
associated with both discovery and trial have increased, see,
e. g., Bell, Varner, & Gottschalk, Automatic
Disclosure in DiscoveryThe Rush To Reform, 27 Ga. L. Rev. 1, 9-11
(1992); see also S. Rep. No. 101-416, p. 1 (1990); Judicial
Improvements Act of 1990, Pub. L. 101-650, 104 Stat. 5089; an
increasingly complex economy has led to increasingly complex sets
of statutes, rules, and regulations that often create potential
liability, with or without fault. And this Court has now made clear
that such lawsuits may proceed against a sitting President. The
consequence, as the Court warned in
Fitzgerald, is that a
sitting President, given "the visibility of his office," could well
become "an easily identifiable target for suits for civil damages,"
457 U. S., at 753. The threat of sanctions
723
could well discourage much unneeded litigation,
ante, at
708709, but some lawsuits (including highly intricate and
complicated ones) could resist ready evaluation and disposition;
and individual district court procedural rulings could pose a
significant threat to the President's official functions.
I concede the possibility that district courts, supervised by
the Courts of Appeals and perhaps this Court, might prove able to
manage private civil damages actions against sitting Presidents
without significantly interfering with the discharge of
Presidential duties-at least if they manage those actions with the
constitutional problem in mind. Nonetheless, predicting the future
is difficult, and I am skeptical. Should the majority's optimism
turn out to be misplaced, then, in my view, courts will have to
develop administrative rules applicable to such cases (including
postponement rules of the sort at issue in this case) in order to
implement the basic constitutional directive. A Constitution that
separates powers in order to prevent one branch of Government from
significantly threatening the workings of another could not grant a
single judge more than a very limited power to second-guess a
President's reasonable determination (announced in open court) of
his scheduling needs, nor could it permit the issuance of a trial
scheduling order that would significantly interfere with the
President's discharge of his duties-in a private civil damages
action the trial of which might be postponed without the plaintiff
suffering enormous harm. As Madison pointed out in The Federalist
No. 51: "The great security against a gradual concentration of the
several powers in the same department consists in giving to those
who administer each department the necessary constitutional means
and personal motives to resist encroachments of the others.
The
provision for defense must in this, as in all other cases, be made
commensurate to the danger of attack." Id., at 321-322
(emphasis added). I agree with the majority's determination that a
constitutional defense must await a more specific showing of need;
I do not agree with what I
724
BREYER, J., concurring in judgment
believe to be an understatement of the "danger." And I believe
that ordinary case-management principles are unlikely to prove
sufficient to deal with private civil lawsuits for damages unless
supplemented with a constitutionally based requirement that
district courts schedule proceedings so as to avoid significant
interference with the President's ongoing discharge of his official
responsibilities.
IV
This case is a private action for civil damages in which, as the
District Court here found, it is possible to preserve evidence and
in which later payment of interest can compensate for delay. The
District Court in this case determined that the Constitution
required the postponement of trial during the sitting President's
term. It may well be that the trial of this case cannot take place
without significantly interfering with the President's ability to
carry out his official duties. Yet, I agree with the majority that
there is no automatic temporary immunity and that the President
should have to provide the District Court with a reasoned
explanation of why the immunity is needed; and I also agree that,
in the absence of that explanation, the court's postponement of the
trial date was premature. For those reasons, I concur in the
result.
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