concluding that senior Executive Branch officials, including a former president of the United States, were not absolutely immune from suit for damages by citizen alleging an unconstitutional wiretap
How later courts described this case
- concluding that senior Executive Branch officials, including a former president of the United States, were not absolutely immune from suit for damages by citizen alleging an unconstitutional wiretap
- evidence that Government falsely relied on national security rationale as a pretext to justify politically motivated surveillance
- “In order to accept defendant Nixon’s argument that he, as a former President, is absolutely immune from this suit, we would have to hold that his status as President sets him apart from the other high Executive officials named as defendants to this action. ... we are unable to make that distinction”
- “[A] proper regard for separation of powers does not require that the courts meekly avert their eyes from presidential excesses while invoking a sterile view of three branches of government entirely insulated from each other.”
Written by the judges who cited it.
The opinion
GESELL, District Judge,
concurring:
I concur in the foregoing opinion except as indicated below.
This suit against a President of the United States and high cabinet-level officials brings into sharp focus the practical difficulties presented by the intimation in Butz v. Economou, 438 U.S. 478, 508 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978), which is today accepted by this Court, that the objective and subjective good faith components of the qualified immunity defense can usually be resolved without trial by summary judgment after pretrial discovery. The majority is willing to extend no more protection to top federal officials than is afforded by the normally applicable summary judgment principles. As I see it, this means that if a plaintiff can establish a genuine material issue of fact as to any element of the immunity defense the case will have to proceed to trial. In my view this approach substantially undermines, if not destroys, the immunity doctrine.
We should not close our eyes to the fact that with increasing frequency in this jurisdiction and throughout the country plaintiffs are filing suits seeking damage awards against high government officials in their personal capacities based on alleged constitutional torts. Each such suit almost invariably results in these officials and their colleagues being subjected to extensive discovery into traditionally protected areas, such as their deliberations preparatory to the formulation of government policy and their intimate thought processes and communications at the presidential and cabinet levels. Such discover is wide-ranging, time-consuming, and not without considerable cost to the officials involved. It is not difficult for ingenious plaintiff’s counsel to create a material issue of fact on some element of the immunity defense where subtle questions of constitutional law and a decisionmaker’s mental processes are involved. A sentence from a casual document or a difference in recollection with regard to a particular policy conversation held long ago would usually, under the normal summary judgment standards, be sufficient. In short, if these standards are those to be followed in these cases, trial judges will almost automatically have to send such cases to full trials on the merits.
The effect of this development upon the willingness of individuals to serve their country is obvious. Not only are the personal funds of such officials placed at hazard but many of these cases are political in character, involve highly controversial acts, and will necessarily embroil juries in passing upon the intricacies of executive decisionmaking.
*1215 In order to give the immunity doctrine some genuine force and effect, it appears to me that a plaintiff should be required to make a stronger showing than the Court’s opinion requires on the immunity question before being permitted to proceed to trial. I would hold that the plaintiff must establish after the completion of discovery and before the trial commences, not merely the existence of a genuine dispute as to some material issue of fact but also, by the preponderance of the evidence or through clear and convincing evidence, that the official failed to act with subjective or objective good faith.
The problems involved in this area are particularly acute when one considers whether or not a President of the United States should be forced to go to trial and risk being held personally liable in damages where a private individual citizen claims injury as a result of acts taken by the President within the outer perimeters of his duties. Even accepting the view that the absolute immunity defense does not automatically protect a President, but only attaches to those who perform judicial and prosecutorial functions, certainly a rule should be developed which affords more deference to the Office of the President. Our constitutional traditions and decisions such as United States v. Nixon, 418 U.S. 683 , 94 S.Ct. 3090 , 41 L.Ed.2d 1039 (1974), strongly suggest that in view of a President’s grave, complex and unique responsibilities he should receive substantial protection while in office and thereafter from individual damage suits which necessarily intrude into his mental processes and his day-to-day relations and communications with his most intimate advisors.
In short, I urge a more exacting standard be placed on the showing a plaintiff must make before proceeding to trial in the face of a properly presented qualified immunity claim.