Absolute immunity

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]

Types
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
Although the U.S. president is frequently sued 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 in office.[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.

The extent to which presidential immunity applies to criminal offenses is disputed. There are non-
contemporaneous reports that Ulysses S. Grant was arrested for speeding while in office, although the
historicity of this narrative is unclear.[14] There have been criminal investigations of three sitting presidents
(Richard Nixon, Bill Clinton, and Donald Trump), but no prosecutions. (Trump was indicted two years
after leaving office.) Memoranda from the Office of Legal Counsel issued in 1973 and 2000 internally
prohibit the Department of Justice from prosecuting a president, which some legal scholars have criticized
but others have endorsed.[15]

In defense against federal criminal prosecution for his alleged 2020 election subversion, in January 2024
Donald Trump argued to the DC Circuit Court of Appeals that a president enjoys absolute immunity for
criminal acts conducted while in office. The next month, a three-judge panel of the court unanimously ruled
against Trump. It was the first time an appeals court had addressed such a presidential immunity matter,
since no other sitting or former president had ever been criminally indicted.[16]

Prosecutorial immunity
In 1976, the Supreme Court ruled in Imbler v. Pachtman that prosecutors cannot be sued for injuries caused
by their official actions during trial.[17] For instance, a prosecutor cannot be sued for purposely withholding
exculpatory evidence, even if that act results in a wrongful conviction.[18] Absolute prosecutorial immunity
also exists for acts closely related to the criminal process' judicial phase.[17]

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.[18] Further, the U.S.
Court of Appeals for the First Circuit held in a 2019 decision that a prosecutor is not entitled to absolute
prosecutorial discretion when performing purely administrative functions concerning a criminal
prosecution.[19] 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.[18]

Judicial immunity
Absolute judicial immunity applies when judges act in their judicial capacity.[4] 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
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
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
Sovereign immunity
Qualified immunity

Notes
1. "Absolute Immunity" (https://biotech.law.lsu.edu/map/AbsoluteImmunity.html).
biotech.law.lsu.edu. Retrieved 2020-02-22.
2. Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982).
3. "Qualified immunity" (https://www.law.cornell.edu/wex/qualified_immunity). LII / Legal
Information Institute. Retrieved 2020-03-16.
4. Imbler v. Pachtman, 424 U.S. 409, 418 (1976).
5. Buckley v. Fitzsimmons, 509 U.S. 259 (1993).
6. See Butz v. Economou, 438 U.S. 478, 513-17 (1978).
7. Nixon v. Fitzgerald, 457 U.S. 731 (1982).
8. Harlow v. Fitzgerald, 457 U.S. 800, 802 (1982).
9. Rehberg v. Paulk, 566 U.S. 356 (2012).
10. "Connecticut Court Rules That Lawyers Can't Be Sued for Fraud" (https://www.insurancejour
nal.com/news/east/2013/05/21/292839.htm). Insurance Journal. 2013-05-21. Retrieved
2020-02-22.
11. "Can a President's Absolute Immunity be Trumped?" (https://www.lawfaremedia.org/article/c
an-presidents-absolute-immunity-be-trumped). Lawfare. 2017-05-09. Retrieved 2020-02-22.
12. Can a President’s Absolute Immunity be Trumped? (https://www.lawfaremedia.org/article/can
-presidents-absolute-immunity-be-trumped) "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.' "
13. 520 U.S. 681 (1997).
14. "Was General Grant Arrested for Speeding in Washington, D.C.?" (https://www.nps.gov/articl
es/000/was-general-grant-arrested-for-speeding-in-washington-d-c.htm). Research by Ryan
Semmes. Ulysses S. Grant National Historic Site (National Park Service). Retrieved
2023-05-03.
15. Prakash, Saikrishna Bangalore (November 2021). "Prosecuting and Punishing Our
Presidents" (https://texaslawreview.org/prosecuting-and-punishing-our-presidents/). Texas
Law Review. 100 (1): 55–113. SSRN 4039230 (https://papers.ssrn.com/sol3/papers.cfm?abs
tract_id=4039230). EBSCOhost 154035452 (http://search.ebscohost.com/login.aspx?direct=t
rue&scope=site&db=a9h&AN=154035452). Retrieved 31 March 2023.
16. Alan Feuer; Charlie Savage (February 6, 2024). "Federal Appeals Court Rejects Trump's
Claim of Absolute Immunity" (https://www.nytimes.com/2024/02/06/us/politics/trump-immunit
y-appeals-court.html). The New York Times.
17. "How Broad Is Prosecutorial Immunity?" (https://www.scotusblog.com/2009/11/how-broad-is-
prosecutorial-immunity/). SCOTUSblog. 2009-11-03. Retrieved 2020-03-16.
18. Balko, Radley (January 30, 2014). "7th Circuit pokes a hole in prosecutorial immunity" (http
s://www.washingtonpost.com/news/opinions/wp/2014/01/30/7th-circuit-pokes-a-hole-in-pros
ecutorial-immunity/). The Washington Post. Retrieved March 15, 2020.
19. "First Circuit: Prosecutor Not Entitled to Absolute Immunity When Performing Purely
Administrative Duty | Criminal Legal News" (https://www.criminallegalnews.org/news/2019/s
ep/17/first-circuit-prosecutor-not-entitled-absolute-immunity-when-performing-purely-adminis
trative-duty/). www.criminallegalnews.org. Retrieved 2020-03-16.
20. Stump v. Sparkman, 435 U.S. at 356-57.
21. Sharp v. Gulley, 120 NC App 878 (1995).
22. Butz v. Economou, 438 U.S. 478 (1978).
23. Tau, Byron (2019-11-26). "Judge Rejects White House Claims of Immunity for Close Aides"
(https://www.wsj.com/articles/judge-rejects-white-house-claims-of-immunity-for-close-aides-1
1574722684). Wall Street Journal. ISSN 0099-9660 (https://www.worldcat.org/issn/0099-966
0). Retrieved 2020-02-22.
24. Savage, Charlie (2019-11-25). "Donald McGahn Must Testify to Congress, Judge Rules;
Administration Will Appeal" (https://www.nytimes.com/2019/11/25/us/politics/mcgahn-testimo
ny-ruling.html). The New York Times. ISSN 0362-4331 (https://www.worldcat.org/issn/0362-4
331). Retrieved 2020-02-22.
25. Durkee, Alison. " "Presidents Are Not Kings": Federal Judge Destroys Trump's "Absolute
Immunity" Defense Against Impeachment" (https://www.vanityfair.com/news/2019/11/mcgahn
-testify-subpoena-absolute-immunity-ruling). Vanity Fair. Retrieved 2020-02-22.
26. Savage, Charlie (2019-11-25). "Donald McGahn Must Testify to Congress, Judge Rules;
Administration Will Appeal" (https://www.nytimes.com/2019/11/25/us/politics/mcgahn-testimo
ny-ruling.html). The New York Times. ISSN 0362-4331 (https://www.worldcat.org/issn/0362-4
331). Retrieved 2020-02-22.
27. Taddei, John P. Beyond Absolute Immunity: Alternative Protections for Prosecutors Against
Ultimately. 106 Northwestern University Law Review 1883, 1883.
28. Johns, Margaret Z., Reconsidering Absolute Prosecutorial Immunity, 2005 B.Y.U. Law
Review 53, 56.

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