https://www.dailybreeze.com/2017/05/30/can-a-private-citizen-sue-the-president-of-the-united-states/Absolute immunity
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Can a private citizen sue the president of the…
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Can a private citizen sue the president of the United States?

By RON SOKOL | RonSEsq@aol.com | Daily Breeze
PUBLISHED: May 30, 2017 at 6:43 p.m. | UPDATED: September 6, 2017 at 4:17 a.m.
Q I have two questions. First, there are some things President Trump has done that really hurt me economically, and I firmly believe they are illegal. Can I sue him?
— M.T., San Pedro
A A private citizen can sue the president for conduct carried out prior to his inauguration, or which is genuinely independent of the presidential office. A private citizen cannot validly sue the president, however, when he is acting on the authority of the office of the president. If that is the case, the president is protected by the doctrine of absolute immunity.
Q Second question: If I can’t sue the president now, can I sue him once he’s out of office?Top Stories00:1101:00GOP hardliners make more demands ofRep. McCarthy
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— M.T., San Pedro
A The immunity from suit continues for actions undertaken while he held office as president. The fact that he has since left the office does not change the law in this regard.
Q I was injured at a Veterans Administration hospital, and plan to file a claim. The lawyer says there are a bunch of hoops to jump through. Can you explain?
— C.L., Lawndale
A The lawyer is referring to the Federal Tort Claims Act, which sets forth the rules and deadlines for pursuing the U.S. government in court. Typically, you have two years from the incident to submit a claim. A standard form you can use (SF 95) is available at the website of the General Services Administration (GSA.gov). Once you submit the form to the proper agency, the government then has six months to act.
If the claim is denied — or the agency does not act during the six months, at which point the claim is deemed denied — then you have six months to file a lawsuit in federal court. Your lawyer is entitled to 20 percent of any settlement or recovery prior to suing, and 25 percent after suing.
Ron Sokol is a Manhattan Beach attorney with more than 30 years of experience. His column, which appears on Wednesdays, presents a summary of the law and should not be construed as legal advice. Email questions and comments to him at RonSEsq@aol.com or write to him at Ask the Lawyer, Daily Breeze, 21250 Hawthorne Blvd., Suite 170, Torrance, CA 90503.
Ron Sokol | Ask the Lawyer
Ron Sokol is a Manhattan Beach attorney who writes a question-and answer column on legal issues
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In United States law, absolute immunity is a type of sovereign immunity for government officials that confers complete immunity from criminal prosecution and suits for damages, so long as officials are acting within the scope of their duties.[1] The Supreme Court of the United States has consistently held that government officials deserve some type of immunity from lawsuits for damages,[2] and that the common law recognized this immunity.[2] The Court reasons that this immunity is necessary to protect public officials from excessive interference with their responsibilities and from “potentially disabling threats of liability.”[2]
Absolute immunity contrasts with qualified immunity, which sometimes applies when certain officials may have violated constitutional rights or federal law.[3]
Contents
Types[edit]
In the United States, absolute civil immunity applies to the following people and circumstances:
- lawmakers engaged in the legislative process;[4]
- judges acting in their judicial capacity;[4]
- government prosecutors while making charging decisions;[5]
- executive officers while performing adjudicative functions;[6]
- the President of the United States;[7]
- Presidential aides who first show that the functions of their office are so sensitive as to require absolute immunity, and who then show that they were performing those functions when performing the act at issue;[8]
- witnesses while testifying in court (although they are still subject to perjury);[9]
- lawyers in certain circumstances related to fraud[10]
Presidential immunity[edit]
Although the U.S. president is sued daily in his governmental capacity, he normally is not sued in his personal capacity as being personally liable.[11] In 1982, the Supreme Court held in Nixon v. Fitzgerald that the president enjoys absolute immunity from civil litigation for official acts undertaken while he or she is president.[11] The Court suggested that this immunity was broad (though not limitless), applying to acts within the “outer perimeter” of the president’s official duties.[11] Fifteen years after Fitzgerald, the Supreme Court held in Clinton v. Jones that the president does not possess absolute immunity from civil litigation surrounding acts he carried out that were not part of his official duties (which is often incorrectly presented as referring only to acts carried out before becoming president).[12][13] The 2020 Supreme Court decision in Trump v. Vance held that the president is subject to subpoenas in criminal prosecutions for personal conduct with the same legal threshold as anyone else.
There is also widespread agreement that no one is above the law and that the president does not have immunity for words and acts carried out while president that are not part of official duties, for example speeding (President Grant), rape, acceptance of assets or objects from foreign countries, or incitement to prevent Congress’s certification of election results and the peaceful transition of power.[14] However, since 1973, the Office of Legal Counsel of the Department of Justice has established the policy that a sitting president may be investigated for crimes but that prosecution for these and other possible crimes must wait until the president is no longer in office.[15]
Prosecutorial immunity[edit]
“Prosecutorial immunity” redirects here. Not to be confused with Immunity from prosecution.
In 1976, the Supreme Court ruled in Imbler v. Pachtman that prosecutors cannot be sued for injuries caused by their official actions during trial.[16] For instance, a prosecutor cannot be sued for purposely withholding exculpatory evidence, even if that act results in a wrongful conviction.[17] Absolute prosecutorial immunity also exists for acts closely related to the criminal process’ judicial phase.[16]
However, the Supreme Court has held that prosecutors do not enjoy absolute immunity when they act as investigators by engaging in activities associated more closely with police functions.[17]Further, the U.S. Court of Appeals for the First Circuit recently held that a prosecutor is not entitled to absolute prosecutorial discretion when performing purely administrative functions concerning a criminal prosecution.[18] Additionally, the Seventh Circuit has ruled that a prosecutor is not immune from liability for fabricating evidence during pre-trial investigations and then introducing that evidence at trial.[17]
Judicial immunity[edit]
Main article: Judicial immunity
Absolute judicial immunity applies when judges act in their judicial capacity.[19] A judge enjoys this immunity when they exceed their jurisdiction, but not when they act without any jurisdiction.[20]Judicial immunity also extends to non-judges when they act in a judicial or quasi-judicial capacity, such as a court-appointed referee in an equitable distribution case.[21] Determining whether someone is acting in a judicial capacity and thus deserves absolute immunity requires using a functional test; that is, one must determine whether the person is acting functionally similarly to a judge.[22]
Testimonial immunity[edit]
In 2019, the Trump administration resisted efforts by House Democrats to compel Trump aides to testify, asserting that close aides to the president enjoy absolute immunity from providing testimony to Congress.[23] But a federal judge ruled against the administration, stating that close presidential advisors—even those working in national security—do not possess absolute immunity from testifying in congressional inquiries,[24] though these officials may invoke executive privilege whenever it is appropriate.[25] The U.S. Department of Justice is appealing the decision.[26]Previously, both Republican and Democratic presidential administrations had asserted absolute immunity in contexts like this, but the doctrine has been mostly untested in the judiciary.[23]
Controversy[edit]
Some scholars urge courts to reconsider the scope of certain forms of absolute immunity, particularly prosecutorial immunity.[27] They insist that absolute prosecutorial immunity is not supported by either public policy or history, and that applying this doctrine in everyday situations is needlessly unworkable.[28] Meanwhile, others push back, arguing that prosecutorial immunity is necessary to protect public servants from frivolous lawsuits.[27]
See also[edit]
Notes[edit]
- ^ “Absolute Immunity”. biotech.law.lsu.edu. Retrieved 2020-02-22.
- ^ Jump up to: a b c Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982).
- ^ “Qualified immunity”. LII / Legal Information Institute. Retrieved 2020-03-16.
- ^ Jump up to: a b Imbler v. Pachtman, 424 U.S. 409, 418 (1976).
- ^ Buckley v. Fitzsimmons, 509 U.S. 259 (1993).
- ^ See Butz v. Economou, 438 U.S. 478, 513-17 (1978).
- ^ Nixon v. Fitzgerald, 457 U.S. 731 (1982).
- ^ Harlow v. Fitzgerald, 457 U.S. 800, 802 (1982).
- ^ Rehberg v. Paulk, 566 U.S. 356 (2012).
- ^ “Connecticut Court Rules That Lawyers Can’t Be Sued for Fraud”. Insurance Journal. 2013-05-21. Retrieved 2020-02-22.
- ^ Jump up to: a b c “Can a President’s Absolute Immunity be Trumped?”. Lawfare. 2017-05-09. Retrieved 2020-02-22.
- ^ Notably, the more general holding in Clinton v. Jones, […] contrary to common belief, is not quite predicated on the conduct’s having taken place before President Clinton took office. Rather, the court distinguishes Fitzgerald on grounds that the conduct alleged in Jones’s suit was not plausibly encompassed within the President’s official duties. That it preceded his presidency was evidence of that reality, but it was the reality it supported that controlled the outcome. As Justice Stevens wrote, in distinguishing Fitzgerald, “we have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity.” Can a President’s Absolute Immunity be Trumped?
- ^ 520 U.S. 681 (1997).
- ^ [1]
- ^ [2]
- ^ Jump up to: a b “How Broad Is Prosecutorial Immunity?”. SCOTUSblog. 2009-11-03. Retrieved 2020-03-16.
- ^ Jump up to: a b c Balko, Radley (January 30, 2014). “7th Circuit pokes a hole in prosecutorial immunity”. The Washington Post. Retrieved March 15, 2020.
- ^ “First Circuit: Prosecutor Not Entitled to Absolute Immunity When Performing Purely Administrative Duty | Criminal Legal News”. www.criminallegalnews.org. Retrieved 2020-03-16.
- ^ Imbler v. Pachtman, 424 U.S. 409, 418 (1976).
- ^ Stump v. Sparkman, 435 U.S. at 356-57.
- ^ Sharp v. Gulley, 120 NC App 878 (1995).
- ^ Butz v. Economou, 438 U.S. 478 (1978).
- ^ Jump up to: a b Tau, Byron (2019-11-26). “Judge Rejects White House Claims of Immunity for Close Aides”. Wall Street Journal. ISSN 0099-9660. Retrieved 2020-02-22.
- ^ Savage, Charlie (2019-11-25). “Donald McGahn Must Testify to Congress, Judge Rules; Administration Will Appeal”. The New York Times. ISSN 0362-4331. Retrieved 2020-02-22.
- ^ Durkee, Alison. “”Presidents Are Not Kings”: Federal Judge Destroys Trump’s “Absolute Immunity” Defense Against Impeachment”. Vanity Fair. Retrieved 2020-02-22.
- ^ Savage, Charlie (2019-11-25). “Donald McGahn Must Testify to Congress, Judge Rules; Administration Will Appeal”. The New York Times. ISSN 0362-4331. Retrieved 2020-02-22.
- ^ Jump up to: a b Taddei, John P. Beyond Absolute Immunity: Alternative Protections for Prosecutors Against Ultimately. 106 Northwestern University Law Review 1883, 1883.
- ^ Johns, Margaret Z., Reconsidering Absolute Prosecutorial Immunity, 2005 B.Y.U. Law Review 53, 56.
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