Presidents have high levels of executive authority. Does this mean that what President’s and their staff say may be privileged? What about immunity? Can you sue a President?

Executive Privilege

United States v. Nixon

418 U.S. 683 (1974).

  1. Whether the President is immune from the judicial process while in office.
  2. Whether the President is the only individual who can determine the scope of Presidential privilege.
  3. If no to 1, and yes to 2, whether the privilege here was appropriate to be invoked.

There is a fine balance between privileged material and the necessity to have proper criminal judicial system. If the President fails to show how the information is relevant, it may be subject to those other interests.


First, the President is not immune from the judicial process while in office. Second, the President does not get to determine the scope of the privilege, the courts do. Finally, the privilege invoked here is not sufficient to quash the subpoena.


After the Watergate situation, several individuals were charged and indicted for conspiracy and attempt to defraud the United States and obstruct justice. President Nixon was not indicted, but was named as an unindicted coconspirator. In the process of these criminal proceedings, President Nixon was served a subpoena duces tecum to produce tapes and recordings of conversations the President had with staff and other advisors.

The President resisted this subpoena and said that the material was privileged and therefore cannot be presented. The trial court denied the motion to quash. Although President Nixon appealed, the Supreme Court took this case before the Appellate Court could issue a judgment.


Here, the court addresses each question 1-by-1.


First, whether the President is immune from the judicial process during the Presidency. Although the edited casebook does not address this issue, ultimately a President cannot be sued for actions taken during the Presidency. However, the President here is a third-party to the case, and his actions are not at issue. I do want to point out a few other constitutional holdings from other cases regarding immunity. First, a President is immune for actions taken during office. Second, the President is not immune during office for actions taken before office. Finally, the President is not immune from actions taken outside of the scope of the Presidency.

Scope of Privilege

Second, whether the President has the ability to determine the scope of the privilege. This proposal is shot down quickly by the Supreme Court who simply cites Marbury v. Madison. In other words, it is the court’s rule to determine what the law is, not the President’s. However, this statement does present some analysis issues. Ultimately, doesn’t this mean that the courts determine what their scope is?

Does Privilege Prevail?

Finally, whether the cited privilege withstands against the subpoena. The court spends most of its time focusing on this question. Ultimately, they find a balance. First, they want to recognize that the President does have a presumption of privilege. This presumption is necessary as a part of the President’s job. However, there is a competing interest for the efficiency and value of criminal proceedings in the United States. The Court wants to ensure that the guilty are held responsible and the innocent are set free.

Thus, there needs to be a balance. The balance taken by the court is that the President needs to cite expressly why that privileged information should not be disclosed (e.g. foreign intelligence, secrets, etc.). Generalized notions of privilege are not sufficient to overcome a high standard of criminal proceedings.

It is important to note that civil proceedings do not exact as high of a standard and therefore some generalized notions of privilege may be asserted. See Cheney v. United States District Court, 542 U.S. 367 (2004).

Additional Notes

The idea of privilege is that the President does not need to share conversations and documents with the courts. Simply, the communication is privileged (see Civ Pro).

There were two main arguments why this material is privileged. National security and separation of powers.


  1. President’s have some executive privilege. This privilege is assumed.
  2. The privilege is a qualified privilege (the privilege can be overcome in certain circumstances).
  3. Thus, the court weighs the interests of the President v. Criminal efficiency.

W. Va. v. EPA


Can you sue the President? When?

Nixon v. Fitzgerald

457 U.S. 731 (1982).

A President is absolutely immune for actions taken in the capacity of their office.

Clinton v. Jones

520 U.S. 681 (1997).

There is no absolute immunity for a President who takes actions not in the capacity of their office. The President may still be sued while in office.

Can be sued for:

  1. Actions taken while not in office.
  2. Actions taken while in office, but not in their official capacity.

The court reasoned that the distractions would not be too bad for the President.

Trump v. Vance

__ U.S. __ (2020).

The trial and circuit court failed to enjoin the subpoenas. President Trump appealed.


Whether the Supremacy clause categorically precludes a sitting President to be subpoenaed for a state criminal court.


The President is not absolutely immune from state criminal proceedings for subpoenas. Additionally, there is no heightened standard for those subpoenas to meet. Affirmed.


A New York district attorney subpoenaed President Trump’s personal accounting firm, requiring them to reproduce tax returns and related schedules for the President and for the firm. Thus, the President resisted, saying that the Supremacy Clause prevents the President for being subpoenaed for state criminal proceedings.


The present argument is whether there should be a heightened standard in state criminal courts to subpoena a sitting President. History has shown that the President is not exempted in federal criminal cases. Thus, the President argues that state courts are different because they offer a heightened sense of distraction, stigma, and harassment, thus precluding any proceedings at all. The opinion first addresses these arguments, then turn to whether there should be a heightened standard at all.

Complete Preclusion

First, the court denies the distracted part. Throughout history, distraction has never been enough to invoke the standard. Additionally, courts are required to consider, and begin preparing for, criminal proceedings following the President’s tenancy in office.

Second, stigma is not enough to preclude. This is because the President is required to follow proceedings and there is nothing stigmatizing about that. Additionally, there are grand jury secrecy rules that would protect the President.

Finally, harassment is not a viable argument. Although state’s may be politically motivated to target a sitting President, there are several Constitutional protections afforded to the President if those states attempt to file frivolous claims.

Consequently, the court is unanimous that there is no complete protection for the President related to this matter.

Heightened Standard

The Solicitor General argues that a heightened standard is needed to show that the material requested was critical to the investigation and was immediately needed instead of waiting for the end of the President’s term. However, the court rejects these arguments for three reasons. First, the protection would then extend to the President’s private documents, not just official documents. Second, a heightened standard is not necessary for the executive to follow their functions. Finally, public policy favors a jury having access to those documents. Along this final argument, the President is still entitled to the protections afforded to every other citizen, namely the ability to challenge the good faith basis of the subpoena.


The concurrence agrees with the judgement but argues that the court adopts a variety of standards which may be confusing. Thus, only time will tell if the court’s standards will work. As such, the concurrence would have opted to follow a heightened standard (consider the burden, why the state is asking, whether the request can wait, etc.) as proposed in Nixon related to official documents.

Thomas Dissent

Justice Thomas agrees with the President having no absolute immunity, but for textualist reasons rather than functional reasons. His dissent occurs because the court refused to address the merits of this specific subpoena.

Alito Dissent

Alito recognizes the importance of the President and how challenging it may be if a sitting President could be criminally charged. Although this subpoena is only investigatory, allowance of the subpoena would open the door to possible criminal charges by a state court during the President’s term. This would be unprecedented, and the President is privileged to protection against such. Consequently, Alito disagrees with the court providing no protection and would have a heightened standard.

Additional Notes

First, President Trump’s arguments include:

  1. Absolute immunity
  2. Qualified privilege
    1. Distraction
    2. Harassment
    3. Stigma
  3. Supremacy Clause (Federal trumps State)

Second, the Court’s Holding:

  1. The precedent says that the President has to turn over documents. See BurrNixonClinton.

However, the concurrence wishes there was a higher standard.

Alito, in his dissent, recognizes the importance of the President and how challenging it may be if a sitting President could be criminally charged.


  1. Impeachment
    • Bribery
    • Treason
    • High Crimes and Misdemeanor (misconduct)
  2. Privilege
    • Qualified
    • Strongest when National Security is at stake – Judges may need to examine
  3. Immunity
    • Can you sue?
    • For acts as President – Absolute
    • For acts taken before President – No immunity
    • Acts taken by President not acting in capacity – No immunity
    • President’s are not above the law.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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