In respondent's civil damages action in Federal District Court
based on his alleged unlawful discharge from employment in the
Department of the Air Force, petitioners, White House aides to
former President Nixon, were codefendants with him and were claimed
to have participated in the same alleged conspiracy to violate
respondent's constitutional and statutory rights as was involved in
Nixon v. Fitzgerald, ante p.
457 U. S. 731.
After extensive pretrial discovery, the District Court denied the
motions of petitioners and the former President for summary
judgment, holding,
inter alia, that petitioners were not
entitled to absolute immunity from suit. Independently of the
former President, petitioners appealed the denial of their immunity
defense, but the Court of Appeals dismissed the appeal.
Held:
1. Government officials whose special functions or
constitutional status requires complete protection from suits for
damages -- including certain officials of the Executive Branch,
such as prosecutors and similar officials,
see Butz v.
Economou, 438 U. S. 478, and
the President,
Nixon v. Fitzgerald, ante p.
457 U. S. 731 --
are entitled to the defense of absolute immunity. However,
executive officials in general are usually entitled to only
qualified or good faith immunity. The recognition of a qualified
immunity defense for high executives reflects an attempt to balance
competing values: not only the importance of a damages remedy to
protect the rights of citizens, but also the need to protect
officials who are required to exercise discretion and the related
public interest in encouraging the vigorous exercise of official
authority.
Scheuer v. Rhodes, 416 U.
S. 232. Federal officials seeking absolute immunity from
personal liability for unconstitutional conduct must bear the
burden of showing that public policy requires an exemption of that
scope. Pp.
457 U. S.
806-808.
2. Public policy does not require a blanket recognition of
absolute immunity for Presidential aides.
Cf. Butz, supra.
Pp.
457 U. S.
808-813.
(a) The rationale of
Gravel v. United States,
408 U. S. 606 --
which held the Speech and Debate Clause derivatively applicable to
the "legislative acts" of a Senator's aide that would have been
privileged if performed by the Senator himself -- does not mandate
"derivative" absolute
Page 457 U. S. 801
immunity for the President's chief aides. Under the "functional"
approach to immunity law, immunity protection extends no further
than its justification warrants. Pp.
457 U. S.
809-811.
(b) While absolute immunity might be justified for aides
entrusted with discretionary authority in such sensitive areas as
national security or foreign policy, a "special functions"
rationale does not warrant a blanket recognition of absolute
immunity for all Presidential aides in the performance of all their
duties. To establish entitlement to absolute immunity, a
Presidential aide first must show that the responsibilities of his
office embraced a function so sensitive as to require a total
shield from liability. He then must demonstrate that he was
discharging the protected function when performing the act for
which liability is asserted. Under the record in this case, neither
petitioner has made the requisite showing for absolute immunity.
However, the possibility that petitioners, on remand, can satisfy
the proper standards is not foreclosed. Pp.
457 U. S.
811-813.
3. Petitioners are entitled to application of the qualified
immunity standard that permits the defeat of insubstantial claims
without resort to trial. Pp.
457 U. S.
813-820.
(a) The previously recognized "subjective" aspect of qualified
or "good faith" immunity -- whereby such immunity is not available
if the official asserting the defense "took the action with the
malicious intention to cause a deprivation of constitutional rights
or other injury,"
Wood v. Strickland, 420 U.
S. 308,
420 U. S. 322
-- frequently has proved incompatible with the principle that
insubstantial claims should not proceed to trial. Henceforth,
government officials performing discretionary functions generally
are shielded from liability for civil damages insofar as their
conduct does not violate "clearly established" statutory or
constitutional rights of which a reasonable person would have
known. Pp.
457 U. S.
815-819.
(b) The case is remanded for the District Court's
reconsideration of the question whether respondent's pretrial
showings were insufficient to withstand petitioners' motion for
summary judgment. Pp.
457 U. S.
819-820.
Vacated and remanded.
POWELL, J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, BLACKMUN, REHNQUIST, STEVENS, and
O'CONNOR, JJ., joined. BRENNAN, J., filed a concurring opinion, in
which MARSHALL and BLACKMUN, JJ., joined,
post, p.
457 U. S. 820.
BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., filed a separate
concurring statement,
post, p.
457 U. S. 821.
REHNQUIST, J., filed a concurring opinion,
post, p.
457 U. S. 822.
BURGER, C.J., filed a dissenting opinion,
post, p.
457 U. S.
822.
Page 457 U. S. 802
JUSTICE POWELL delivered the opinion of the Court.
The issue in this case is the scope of the immunity available to
the senior aides and advisers of the President of the United States
in a suit for damages based upon their official acts.
I
In this suit for civil damages, petitioners Bryce Harlow and
Alexander Butterfield are alleged to have participated in a
conspiracy to violate the constitutional and statutory rights of
the respondent A. Ernest Fitzgerald. Respondent avers that
petitioners entered the conspiracy in their capacities as senior
White House aides to former President Richard M. Nixon. As the
alleged conspiracy is the same as that involved in
Nixon v.
Fitzgerald, ante p.
457 U. S. 731, the
facts need not be repeated in detail.
Respondent claims that Harlow joined the conspiracy in his role
as the Presidential aide principally responsible for congressional
relations. [
Footnote 1] At the
conclusion of discovery, the
Page 457 U. S. 803
supporting evidence remained inferential. As evidence of
Harlow's conspiratorial activity, respondent relies heavily on a
series of conversations in which Harlow discussed Fitzgerald's
dismissal with Air Force Secretary Robert Seamans. [
Footnote 2] The other evidence most
supportive of Fitzgerald's claims consists of a recorded
conversation in which the President later voiced a tentative
recollection that Harlow was "all for canning" Fitzgerald.
[
Footnote 3]
Disputing Fitzgerald's contentions, Harlow argues that
exhaustive discovery has adduced no direct evidence of his
involvement
Page 457 U. S. 804
in any wrongful activity. [
Footnote 4] He avers that Secretary Seamans advised him
that considerations of efficiency required Fitzgerald's removal by
a reduction in force, despite anticipated adverse congressional
reaction. Harlow asserts he had no reason to believe that a
conspiracy existed. He contends that he took all his actions in
good faith. [
Footnote 5]
Petitioner Butterfield also is alleged to have entered the
conspiracy not later than May, 1969. Employed as Deputy Assistant
to the President and Deputy Chief of Staff to H.R. Haldeman,
[
Footnote 6] Butterfield
circulated a White House memorandum in that month in which he
claimed to have learned that Fitzgerald planned to "blow the
whistle" on some "shoddy purchasing practices" by exposing these
practices to public view. [
Footnote
7] Fitzgerald characterizes this memorandum as evidence
Page 457 U. S. 805
that Butterfield had commenced efforts to secure Fitzgerald's
retaliatory dismissal. As evidence that Butterfield participated in
the conspiracy to conceal his unlawful discharge and prevent his
reemployment, Fitzgerald cites communications between Butterfield
and Haldeman in December, 1969, and January, 1970. After the
President had promised at a press conference to inquire into
Fitzgerald's dismissal, Haldeman solicited Butterfield's
recommendations. In a subsequent memorandum emphasizing the
importance of "loyalty," Butterfield counseled against offering
Fitzgerald another job in the administration at that time.
[
Footnote 8]
For his part, Butterfield denies that he was involved in any
decision concerning Fitzgerald's employment status until Haldeman
sought his advice in December, 1969 -- more than a month after
Fitzgerald's termination had been scheduled and announced publicly
by the Air Force. Butterfield states that he never communicated his
views about Fitzgerald to any official of the Defense Department.
He argues generally that nearly eight years of discovery have
failed to turn up any evidence that he caused injury to Fitzgerald.
[
Footnote 9]
Together with their codefendant Richard Nixon, petitioners
Harlow and Butterfield moved for summary judgment on February 12,
1980. In denying the motion, the District Court upheld the legal
sufficiency of Fitzgerald's
Bivens (Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U. S. 388
(1971)) claim under the First Amendment and his "inferred"
statutory causes of action under 5 U.S.C. § 7211 (1976 ed., Supp.
IV) and 18 U.S.C. § 1505. [
Footnote 10] The court
Page 457 U. S. 806
found that genuine issues of disputed fact remained for
resolution at trial. It also ruled that petitioners were not
entitled to absolute immunity. App. to Pet. for Cert. 1a-3a.
Independently of former President Nixon, petitioners invoked the
collateral order doctrine and appealed the denial of their immunity
defense to the Court of Appeals for the District of Columbia
Circuit. The Court of Appeals dismissed the appeal without opinion.
Id. at 11a-12a. Never having determined the immunity
available to the senior aides and advisers of the President of the
United States, we granted certiorari. 452 U.S. 959 (1981).
[
Footnote 11]
II
As we reiterated today in
Nixon v. Fitzgerald, ante p.
457 U. S. 731, our
decisions consistently have held that government officials are
entitled to some form of immunity from suits for damages. As
recognized at common law, public officers require this protection
to shield them from undue interference with their duties and from
potentially disabling threats of liability.
Page 457 U. S. 807
Our decisions have recognized immunity defenses of two kinds.
For officials whose special functions or constitutional status
requires complete protection from suit, we have recognized the
defense of "absolute immunity." The absolute immunity of
legislators, in their legislative functions,
see, e.g.,
Eastland v. United States Servicemen's Fund, 421 U.
S. 491 (1975), and of judges, in their judicial
functions,
see, e.g., Stump v. Sparkman, 435 U.
S. 349 (1978), now is well settled. Our decisions also
have extended absolute immunity to certain officials of the
Executive Branch. These include prosecutors and similar officials,
see Butz v. Economou, 438 U. S. 478,
438 U. S.
508-512 (1978), executive officers engaged in
adjudicative functions,
id. at
438 U. S.
513-517, and the President of the United States,
see
Nixon v. Fitzgerald, ante p.
457 U. S. 731.
For executive officials in general, however, our cases make
plain that qualified immunity represents the norm. In
Scheuer
v. Rhodes, 416 U. S. 232
(1974), we acknowledged that high officials require greater
protection than those with less complex discretionary
responsibilities. Nonetheless, we held that a governor and his
aides could receive the requisite protection from qualified or good
faith immunity.
Id. at
416 U. S.
247-248. In
Butz v. Economou, supra, we
extended the approach of
Scheuer to high federal officials
of the Executive Branch. Discussing in detail the considerations
that also had underlain our decision in
Scheuer, we
explained that the recognition of a qualified immunity defense for
high executives reflected an attempt to balance competing values:
not only the importance of a damages remedy to protect the rights
of citizens, 438 U.S. at
438 U. S.
504-505, but also
"the need to protect officials who are required to exercise
their discretion and the related public interest in encouraging the
vigorous exercise of official authority."
Id. at
438 U. S. 506.
Without discounting the adverse consequences of denying high
officials an absolute immunity from private lawsuits alleging
constitutional violations -- consequences found sufficient in
Spalding v. Vilas, 161 U. S. 483
(1896), and
Barr v. Matteo, 360 U.
S. 564
Page 457 U. S. 808
(1959), to warrant extension to such officials of absolute
immunity from suits at common law -- we emphasized our expectation
that insubstantial suits need not proceed to trial:
"Insubstantial lawsuits can be quickly terminated by federal
courts alert to the possibilities of artful pleading. Unless the
complaint states a compensable claim for relief . . . , it should
not survive a motion to dismiss. Moreover, the Court recognized in
Scheuer that damages suits concerning constitutional
violations need not proceed to trial, but can be terminated on a
properly supported motion for summary judgment based on the defense
of immunity. . . . In responding to such a motion, plaintiffs may
not play dog in the manger; and firm application of the Federal
Rules of Civil Procedure will ensure that federal officials are not
harassed by frivolous lawsuits."
438 U.S. at
438 U. S.
507-608 (citations omitted).
Butz continued to acknowledge that the special
functions of some officials might require absolute immunity. But
the Court held that
"federal officials who seek absolute exemption from personal
liability for unconstitutional conduct must bear the burden of
showing that public policy requires an exemption of that
scope."
Id. at
438 U. S. 506.
This we reaffirmed today in
Nixon v. Fitzgerald, ante at
457 U. S.
747.
III
A
Petitioners argue that they are entitled to a blanket protection
of absolute immunity as an incident of their offices as
Presidential aides. In deciding this claim, we do not write on an
empty page. In
Butz v. Economou, supra, the Secretary of
Agriculture -- a Cabinet official directly accountable to the
President -- asserted a defense of absolute official immunity from
suit for civil damages. We rejected his claim. In so doing, we did
not question the power or the importance of the Secretary's office.
Nor did we doubt the importance to the
Page 457 U. S. 809
President of loyal and efficient subordinates in executing his
duties of office. Yet we found these factors, alone, to be
insufficient to justify absolute immunity. "[T]he greater power of
[high] officials," we reasoned, "affords a greater potential for a
regime of lawless conduct." 438 U.S. at
438 U. S. 506.
Damages actions against high officials were therefore "an important
means of vindicating constitutional guarantees."
Ibid.
Moreover, we concluded that it would be
"untenable to draw a distinction for purposes of immunity law
between suits brought against state officials under [42 U.S.C.] §
1983 and suits brought directly under the Constitution against
federal officials."
Id. at
438 U. S.
504.
Having decided in
Butz that Members of the Cabinet
ordinarily enjoy only qualified immunity from suit, we conclude
today that it would be equally untenable to hold absolute immunity
an incident of the office of every Presidential subordinate based
in the White House. Members of the Cabinet are direct subordinates
of the President, frequently with greater responsibilities, both to
the President and to the Nation, than White House staff. The
considerations that supported our decision in
Butz apply
with equal force to this case. It is no disparagement of the
offices held by petitioners to hold that Presidential aides, like
Members of the Cabinet, generally are entitled only to a qualified
immunity.
B
In disputing the controlling authority of
Butz,
petitioners rely on the principles developed in
Gravel v.
United States, 408 U. S. 606
(1972). [
Footnote 12] In
Gravel, we endorsed the view that
"it is literally impossible . . . for Members of Congress to
perform
Page 457 U. S. 810
their legislative tasks without the help of aides and
assistants,"
and that "the day-to-day work of such aides is so critical to
the Members' performance that they must be treated as the latter's
alter egos. . . ."
Id. at
408 U. S.
616-617. Having done so, we held the Speech and Debate
Clause derivatively applicable to the "legislative acts" of a
Senator's aide that would have been privileged if performed by the
Senator himself.
Id. at
408 U. S.
621-622.
Petitioners contend that the rationale of
Gravel
mandates a similar "derivative" immunity for the chief aides of the
President of the United States. Emphasizing that the President must
delegate a large measure of authority to execute the duties of his
office, they argue that recognition of derivative absolute immunity
is made essential by all the considerations that support absolute
immunity for the President himself.
Petitioners' argument is not without force. Ultimately, however,
it sweeps too far. If the President's aides are derivatively immune
because they are essential to the functioning of the Presidency, so
should the Members of the Cabinet -- Presidential subordinates some
of whose essential roles are acknowledged by the Constitution
itself [
Footnote 13] -- be
absolutely immune. Yet we implicitly rejected such derivative
immunity in
Butz. [
Footnote 14] Moreover, in general, our cases have
followed a "functional" approach to immunity law. We have
recognized
Page 457 U. S. 811
that the judicial, prosecutorial, and legislative functions
require absolute immunity. But this protection has extended no
further than its justification would warrant. In
Gravel,
for example, we emphasized that Senators and their aides were
absolutely immune only when performing "acts legislative in
nature," and not when taking other acts even "in their official
capacity." 408 U.S. at
408 U. S. 625
.
See Hutchinson v. Proxmire, 443 U.
S. 111,
443 U. S.
125-133 (1979). Our cases involving judges [
Footnote 15] and prosecutors
[
Footnote 16] have followed
a similar line. The undifferentiated extension of absolute
"derivative" immunity to the President's aides therefore could not
be reconciled with the "functional" approach that has characterized
the immunity decisions of this Court, indeed including
Gravel itself. [
Footnote 17]
C
Petitioners also assert an entitlement to immunity based on the
"special functions" of White House aides. This form
Page 457 U. S. 812
of argument accords with the analytical approach of our cases.
For aides entrusted with discretionary authority in such sensitive
areas as national security or foreign policy, absolute immunity
might well be justified to protect the unhesitating performance of
functions vital to the national interest. [
Footnote 18] But a "special functions" rationale
does not warrant a blanket recognition of absolute immunity for all
Presidential aides in the performance of all their duties. This
conclusion too follows from our decision in
Butz, which
establishes that an executive official's claim to absolute immunity
must be justified by reference to the public interest in the
special functions of his office, not the mere fact of high station.
[
Footnote 19]
Butz also identifies the location of the burden of
proof. The burden of justifying absolute immunity rests on the
official asserting the claim. 438 U.S. at
438 U. S. 506.
We have not, of course, had occasion to identify how a Presidential
aide might carry this burden. But the general requisites are
familiar in our cases. In order to establish entitlement to
absolute immunity
Page 457 U. S. 813
a Presidential aide first must show that the responsibilities of
his office embraced a function so sensitive as to require a total
shield from liability. [
Footnote
20] He then must demonstrate that he was discharging the
protected function when performing the act for which liability is
asserted. [
Footnote 21]
Applying these standards to the claims advanced by petitioners
Harlow and Butterfield, we cannot conclude on the record before us
that either has shown that "public policy requires [for any of the
functions of his office] an exemption of [absolute] scope."
Butz, 438 U.S. at
438 U. S. 506. Nor, assuming that petitioners did have
functions for which absolute immunity would be warranted, could we
now conclude that the acts charged in this lawsuit -- if taken at
all -- would lie within the protected area. We do not, however,
foreclose the possibility that petitioners, on remand, could
satisfy the standards properly applicable to their claims.
IV
Even if they cannot establish that their official functions
require absolute immunity, petitioners assert that public policy at
least mandates an application of the qualified immunity standard
that would permit the defeat of insubstantial claims without resort
to trial. We agree.
A
The resolution of immunity questions inherently requires a
balance between the evils inevitable in any available
alternative.
Page 457 U. S. 814
In situations of abuse of office, an action for damages may
offer the only realistic avenue for vindication of constitutional
guarantees.
Butz v. Economou, supra, at
438 U. S. 506;
see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.
at
403 U. S. 410
("For people in Bivens' shoes, it is damages or nothing"). It is
this recognition that has required the denial of absolute immunity
to most public officers. At the same time, however, it cannot be
disputed seriously that claims frequently run against the innocent,
as well as the guilty -- at a cost not only to the defendant
officials, but to society as a whole. [
Footnote 22] These social costs include the expenses
of litigation, the diversion of official energy from pressing
public issues, and the deterrence of able citizens from acceptance
of public office. Finally, there is the danger that fear of being
sued will "dampen the ardor of all but the most resolute, or the
most irresponsible [public officials], in the unflinching discharge
of their duties."
Gregoire v. Biddle, 177 F.2d 579, 581
(CA2 1949),
cert. denied, 339 U.S. 949 (1950).
In identifying qualified immunity as the best attainable
accommodation of competing values, in
Butz, supra, at
438 U. S.
507-508, as in
Scheuer, 416 U.S. at
416 U. S.
245-248, we relied on the assumption that this standard
would permit "[i]nsubstantial lawsuits [to] be quickly terminated."
438 U.S. at
438 U. S.
507-508;
see Hanrahan v. Hampton, 446 U.
S. 754,
446 U. S. 765
(1980) (POWELL, J., concurring in part and dissenting in part).
[
Footnote 23] Yet
petitioners advance persuasive arguments that the dismissal of
insubstantial lawsuits without trial -- a factor presupposed in the
balance of competing interests struck by
Page 457 U. S. 815
our prior cases -- requires an adjustment of the "good faith"
standard established by our decisions.
B
Qualified or "good faith" immunity is an affirmative defense
that must be pleaded by a defendant official.
Gomez v.
Toledo, 446 U. S. 635
(1980). [
Footnote 24]
Decisions of this Court have established that the "good faith"
defense has both an "objective" and a "subjective" aspect. The
objective element involves a presumptive knowledge of and respect
for "basic, unquestioned constitutional rights."
Wood v.
Strickland, 420 U. S. 308,
420 U. S. 322
(1975). The subjective component refers to "permissible
intentions."
Ibid. Characteristically, the Court has
defined these elements by identifying the circumstances in which
qualified immunity would
not be available. Referring both
to the objective and subjective elements, we have held that
qualified immunity would be defeated if an official
"
knew or reasonably should have known that the action
he took within his sphere of official responsibility would violate
the constitutional rights of the [plaintiff],
or if he
took the action
with the malicious intention to cause a
deprivation of constitutional rights or other injury. . . ."
Ibid. (emphasis added). [
Footnote 25]
The subjective element of the good faith defense frequently has
proved incompatible with our admonition in
Butz
Page 457 U. S. 816
that insubstantial claims should not proceed to trial. Rule 56
of the Federal Rules of Civil Procedure provides that disputed
questions of fact ordinarily may not be decided on motions for
summary judgment. [
Footnote
26] And an official's subjective good faith has been considered
to be a question of fact that some courts have regarded as
inherently requiring resolution by a jury. [
Footnote 27]
In the context of
Butz' attempted balancing of
competing values, it now is clear that substantial costs attend the
litigation of the subjective good faith of government officials.
Not only are there the general costs of subjecting officials to the
risks of trial -- distraction of officials from their governmental
duties, inhibition of discretionary action, and deterrence of able
people from public service. There are special costs to "subjective"
inquiries of this kind. Immunity generally is available only to
officials performing discretionary functions. In contrast with the
thought processes accompanying "ministerial" tasks, the judgments
surrounding discretionary action almost inevitably are influenced
by the decisionmaker's experiences, values, and emotions. These
variables explain in part why questions of subjective intent so
rarely can be decided by summary judgment. Yet they also frame a
background
Page 457 U. S. 817
in which there often is no clear end to the relevant evidence.
Judicial inquiry into subjective motivation therefore may entail
broad-ranging discovery and the deposing of numerous persons,
including an official's professional colleagues. [
Footnote 28] Inquiries of this kind can be
peculiarly disruptive of effective government. [
Footnote 29]
Consistently with the balance at which we aimed in
Butz, we conclude today that bare allegations of malice
should not suffice to subject government officials either to the
costs of
Page 457 U. S. 818
trial or to the burdens of broad-reaching discovery. We
therefore hold that government officials performing discretionary
functions, generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.
See Procunier v. Navarette, 434 U.
S. 555,
434 U. S. 565
(1978);
Wood v. Strickland, 420 U.S. at 322. [
Footnote 30]
Reliance on the objective reasonableness of an official's
conduct, as measured by reference to clearly established law,
[
Footnote 31] should avoid
excessive disruption of government and permit the resolution of
many insubstantial claims on summary judgment. On summary judgment,
the judge appropriately may determine not only the currently
applicable law, but whether that law was clearly established at the
time an action occurred. [
Footnote 32] If the law at that time was not clearly
established, an official could not reasonably be expected to
anticipate subsequent legal developments, nor could he fairly be
said to "know" that the law forbade conduct not previously
identified as unlawful. Until this threshold immunity question is
resolved, discovery should not be allowed. If the law was clearly
established, the immunity defense ordinarily
Page 457 U. S. 819
should fail, since a reasonably competent public official should
know the law governing his conduct. Nevertheless, if the official
pleading the defense claims extraordinary circumstances and can
prove that he neither knew nor should have known of the relevant
legal standard, the defense should be sustained. But again, the
defense would turn primarily on objective factors.
By defining the limits of qualified immunity essentially in
objective terms, we provide no license to lawless conduct. The
public interest in deterrence of unlawful conduct and in
compensation of victims remains protected by a test that focuses on
the objective legal reasonableness of an official's acts. Where an
official could be expected to know that certain conduct would
violate statutory or constitutional rights, he should be made to
hesitate; and a person who suffers injury caused by such conduct
may have a cause of action. [
Footnote 33] But where an official's duties legitimately
require action in which clearly established rights are not
implicated, the public interest may be better served by action
taken "with independence and without fear of consequences."
Pierson v. Ray, 386 U. S. 547,
386 U. S. 554
(1967). [
Footnote 34]
C
In this case, petitioners have asked us to hold that the
respondent's pretrial showings were insufficient to survive their
motion for summary judgment. [
Footnote 35] We think it appropriate,
Page 457 U. S. 820
however, to remand the case to the District Court for its
reconsideration of this issue in light of this opinion. [
Footnote 36] The trial court is more
familiar with the record so far developed, and also is better
situated to make any such further findings as may be necessary.
V
The judgment of the Court of Appeals is vacated, and the case is
remanded for further action consistent with this opinion.
So ordered.
[
Footnote 1]
Harlow held this position from the beginning of the Nixon
administration on January 20, 1969, through November 4, 1969. On
the latter date, he was designated as Counselor to the President, a
position accorded Cabinet status. He served in that capacity until
December 9, 1970, when he returned to private life. Harlow later
resumed the duties of Counselor for the period from July 1, 1973,
through April 14, 1974. Respondent appears to allege that Harlow
continued in a conspiracy against him throughout the various
changes of official assignment.
[
Footnote 2]
The record reveals that Secretary Seamans called Harlow in May,
1969, to inquire about likely congressional reaction to a draft
reorganization plan that would cause Fitzgerald's dismissal.
According to Seamans' testimony,
"[w]e [the Air Force] didn't ask [Harlow] to pass judgment on
the action itself. We just asked him what the impact would be in
the relationship with the Congress."
App. 153a, 164a-165a (deposition of Robert Seamans). Through an
aide, Harlow responded that "this was a very sensitive item on the
Hill, and that it would be [his] recommendation that [the Air
Force] not proceed to make such a change at that time."
Id. at 152a. But the Air Force persisted. Seamans spoke to
Harlow on at least one subsequent occasion during the spring of
1969. The record also establishes that Secretary Seamans called
Harlow on November 4, 1969, shortly after the public announcement
of Fitzgerald's impending dismissal, and again in December, 1969.
See id. at 186a.
[
Footnote 3]
See id. at 284a (transcript of a recorded conversation
between Richard Nixon and Ronald Ziegler, February 26, 1973). In a
conversation with the President on January 31, 1973, John
Ehrlichman also recalled that Harlow had discussed the Fitzgerald
case with the President.
See id. at 218a-221a (transcript
of recorded conversation between Richard Nixon and John Ehrlichman,
January 31, 1973). In the same conversation, the President himself
asserted that he had spoken to Harlow about the Fitzgerald matter,
see id. at 218a, but the parties continue to dispute
whether Mr. Nixon -- at the most relevant moments in the discussion
-- was confusing Fitzgerald's case with that of another dismissed
employee. The President explicitly stated at one point that he
previously had been confused.
See id. at 220a.
[
Footnote 4]
See Defendants Memorandum of Points and Authorities in
Support of Their Motion for Summary Judgment in Civ. No. 74-178
(DC), p. 7 (Feb. 12, 1980).
[
Footnote 5]
In support of his version of events, Harlow relies particularly
on the deposition testimony of Air Force Secretary Seamans, who
stated that he regarded abolition of Fitzgerald's position as
necessary "to improve the efficiency" of the Financial Management
Office of the Air Force, and that he never received any White House
instruction regarding the Fitzgerald case. App. 159a-160a. Harlow
also disputes the probative value of Richard Nixon's recorded
remark that Harlow had supported Fitzgerald's firing. Harlow
emphasizes the tentativeness of the President's statement. To the
President's query whether Harlow was "all for canning [Fitzgerald],
wasn't he?", White House Press Secretary Ronald Ziegler in fact
gave a negative reply: "No, I think Bryce may have been the other
way."
Id. at 284a. The President did not respond to
Ziegler's comment.
[
Footnote 6]
The record establishes that Butterfield worked from an office
immediately adjacent to the oval office. He had almost daily
contact with the President until March, 1973, when he left the
White House to become Administrator of the Federal Aviation
Administration.
[
Footnote 7]
Id. at 274a. Butterfield reported that this information
had been referred to the Federal Bureau of Investigation. In the
memorandum, Butterfield reported that he had received the
information
"by word of several mouths, but allegedly from a senior AFL-CIO
official originally. . . . Evidently, Fitzgerald attended a recent
meeting of the National Democratic Coalition and, while there,
revealed his intentions to a labor representative who, fortunately
for us, was unsympathetic."
Ibid.
[
Footnote 8]
Id. at 99a-100a, 180a-181a. This memorandum, quoted in
Nixon v. Fitzgerald, ante at
457 U. S.
735-736, was not sent to the Defense Department.
[
Footnote 9]
See Memorandum in Support of Summary Judgment,
supra, at 26. The history of Fitzgerad's litigation is
recounted in
Nixon v. Fitzgerald, ante p.
457 U. S. 731.
Butterfield was named as a defendant in the initial civil action
filed by Fitzgerald in 1974. Harlow was named for the first time in
respondent's second amended complaint of July 5 1978.
[
Footnote 10]
The first of these statutes, 5 U.S.C. § 7211 (1976 ed., Supp.
IV), provides generally that
"[t]he right of employees . . . to . . . furnish information to
either House of Congress, or to a committee or Member thereof, may
not be interfered with or denied."
The second, 18 U.S.C. § 1505, is a criminal statute making it a
crime to obstruct congressional testimony. Neither expressly
creates a private right to sue for damages. Petitioners argue that
the District Court erred in finding that a private cause of action
could be inferred under either statute, and that "special factors"
present in the context of the federal employer-employee
relationship preclude the recognition of respondent's
Bivens action under the First Amendment. The legal
sufficiency of respondent's asserted causes of action is not,
however, a question that we view as properly presented for our
decision in the present posture of this case.
See n 36,
infra.
[
Footnote 11]
As in
Nixon v. Fitzgerald, ante p.
457 U. S. 731, our
jurisdiction has been challenged on the basis that the District
Court's order denying petitioners' claim of absolute immunity was
not an appealable final order and that the Court of Appeals'
dismissal of petitioners' appeal establishes that this case was
never "in" the Court of Appeals within the meaning of 28 U.S.C. §
1254. As the discussion in
Nixon establishes our
jurisdiction in this case as well, we need not consider those
challenges in this opinion.
[
Footnote 12]
Petitioners also claim support from other cases that have
followed
Gravel in holding that congressional employees
are derivatively entitled to the legislative immunity provided to
United States Senators and Representatives under the Speech and
Debate Clause.
See Eastland v. United States Servicemen's
Fund, 421 U. S. 491
(1975);
Doe v. McMillan, 412 U. S. 306
(1973).
[
Footnote 13]
See U.S.Const., Art. II, § 2 ("The President . . . may
require the Opinion, in writing, of the principal Officer in each
of the executive Departments, upon any Subject relating to the
Duties of their respective Offices . . .").
[
Footnote 14]
THE CHIEF JUSTICE,
post at
457 U. S. 828,
argues that senior Presidential aides work "more intimately with
the President on a daily basis than does a Cabinet officer," and
that
Butz therefore is not controlling. In recent years,
however, such men as Henry Kissinger and James Schlesinger have
served in both Presidential advisory and Cabinet positions.
Kissinger held both posts simultaneously. In our view, it is
impossible to generalize about the role of "offices" in an
individual President's administration without reference to the
functions that particular officeholders are assigned by the
President.
Butz v. Economou cannot be distinguished on
this basis.
[
Footnote 15]
See, e.g., Supreme Court of Virginia v. Consumers Union of
United States, 446 U. S. 719,
446 U. S.
731-737 (1980);
Stump v. Sparkman, 435 U.
S. 349,
435 U. S. 362
(1978).
[
Footnote 16]
In
Imbler v. Pachtman, 424 U.
S. 409,
424 U. S.
430-431 (1976), this Court reserved the question whether
absolute immunity would extend to "those aspects of the
prosecutor's responsibility that cast him in the role of an
administrator or investigative officer." Since that time, the
Courts of Appeals generally have ruled that prosecutors do not
enjoy absolute immunity for acts taken in those capacities.
See, e.g., Mancini v. Lester, 630 F.2d 990, 992 (CA3
1980);
Forsyth v. Kleindienst, 599 F.2d 1203, 1213-1214
(CA3 1979). This Court at least implicitly has drawn the same
distinction in extending absolute immunity to executive officials
when they are engaged in quasi-prosecutorial functions.
See
Butz v. Economou, 438 U.S. at
438 U. S.
615-517.
[
Footnote 17]
Our decision today in
Nixon v. Fitzgerald, ante p.
457 U. S. 731, in
no way abrogates this general rule. As we explained in that
opinion, the recognition of absolute immunity for all of a
President's acts in office derives in principal part from factors
unique to his constitutional responsibilities and station. Suits
against other officials -- including Presidential aides --
generally do not invoke separation of powers considerations to the
same extent as suits against the President himself.
[
Footnote 18]
Cf. United States v. Nixon, 418 U.
S. 683,
418 U. S.
710-711 (1974) ("[C]ourts have traditionally shown the
utmost deference to Presidential responsibilities" for foreign
policy and military affairs, and claims of privilege in this area
would receive a higher degree of deference than invocations of "a
President's generalized interest in confidentiality");
Katz v.
United States, 389 U. S. 347,
389 U. S. 364
(1967) (WHITE, J., concurring) ("We should not require the warrant
procedure and the magistrate's judgment if the President of the
United States
or his chief legal officer, the Attorney
General, has considered the requirements of national security
and authorized electronic surveillance as reasonable") (emphasis
added).
[
Footnote 19]
Gravel v. United States, 408 U.
S. 606 (1972), points to a similar conclusion. We fairly
may assume that some aides are assigned to act as Presidential
"alter egos,"
id. at
408 U. S.
616-617, in the exercise of functions for which absolute
immunity is "essential for the conduct of the public business,"
Butz, supra, at
438 U. S. 507.
Cf. Gravel, supra, at
408 U. S. 620
(derivative immunity extends only to acts within the "central role"
of the Speech and Debate Clause in permitting free legislative
speech and debate). By analogy to
Gravel, a derivative
claim to Presidential immunity would be strongest in such "central"
Presidential domains as foreign policy and national security, in
which the President could not discharge his singularly vital
mandate without delegating functions nearly as sensitive as his
own.
[
Footnote 20]
Here as elsewhere the relevant judicial inquiries would
encompass considerations of public policy, the importance of which
should be confirmed either by reference to the common law or, more
likely, our constitutional heritage and structure.
See Nixon v.
Fitzgerald, ante at
457 U. S.
747-748.
[
Footnote 21]
The need for such an inquiry is implicit in
Butz v.
Economou, supra, at
438 U. S.
508-517;
see Imbler v. Pachtman, supra, at
424 U. S.
430-431. Cases involving immunity under the Speech and
Debate Clause have inquired explicitly into whether particular acts
and activities qualified for the protection of the Clause.
See,
e.g., Hutchinson v. Proxmire, 443 U.
S. 111 (1979);
Doe v. McMillan, 412 U.
S. 306 (1973);
Gravel v. United States,
supra.
[
Footnote 22]
See generally Schuck, Suing Our Servants: The Court,
Congress, and the Liability of Public Officials for Damages, 1980
S.Ct.Rev. 281, 324-327.
[
Footnote 23]
The importance of this consideration hardly needs emphasis. This
Court has noted the risk imposed upon political officials who must
defend their actions and motives before a jury.
See Lake
Country Estates, Inc. v. Tahoe Regional Planning Agency,
440 U. S. 391,
440 U. S. 405
(1979);
Tenney v. Brandhove, 341 U.
S. 367,
341 U. S.
377-378 (1951). As the Court observed in
Tenney: "In times of political passion, dishonest or
vindictive motives are readily attributed . . . , and as readily
believed."
Id. at
341 U. S. 378.
[
Footnote 24]
Although
Gomez presented the question in the context of
an action under 42 U.S.C. § 1983, the Court's analysis indicates
that "immunity" must also be pleaded as a defense in actions under
the Constitution and laws of the United States.
See 446
U.S. at
446 U. S. 640.
Gomez did not decide which party bore the burden of proof
on the issue of good faith.
Id. at
446 U. S. 642
(REHNQUIST, J., concurring).
[
Footnote 25]
In
Wood, the Court explicitly limited its holding to
the circumstances in which a school board member, "in the specific
context of school discipline," 420 U.S. at
420 U. S. 322,
would be stripped of claimed immunity in an action under 1983.
Subsequent cases, however, have quoted the
Wood
formulation as a general statement of the qualified immunity
standard.
See, e.g., Procunier v. Navarette, 434 U.
S. 555,
434 U. S.
562-563, 566 (1978), quoted in
Baker v.
McCollan, 443 U. S. 137,
443 U. S. 139
(1979).
[
Footnote 26]
Rule 56(c) states that summary judgment
"shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law."
In determining whether summary judgment is proper, a court
ordinarily must look at the record in the light most favorable to
the party opposing the motion, drawing all inferences most
favorable to that party.
E.g., Poller v. Columbia Broadcasting
System, Inc., 368 U. S. 464,
368 U. S. 473
(1962).
[
Footnote 27]
E.g., Landrum v. Moats, 576 F.2d 1320, 1329 (CA8 1978);
Duchesne v. Sugarman, 566 F.2d 817, 832-833 (CA2 1977);
cf. Hutchinson v. Proxmire, 443 U.S. at
443 U. S. 120,
n. 9 (questioning whether the existence of "actual malice," as an
issue of fact, may properly be decided on summary judgment in a
suit alleging libel of a public figure).
[
Footnote 28]
In suits against a President's closest aides, discovery of this
kind frequently could implicate separation of powers concerns. As
the Court recognized in
United States v. Nixon, 418 U.S.
at
418 U. S.
708:
"A President and those who assist him must be free to explore
alternatives in the process of shaping policies and making
decisions, and to do so in a way many would be unwilling to express
except privately. These are the considerations justifying a
presumptive privilege for Presidential communications. The
privilege is fundamental to the operation of Government and
inextricably rooted in the separation of powers under the
Constitution."
[
Footnote 29]
As Judge Gesell observed in his concurring opinion in
Halperin v. Kissinger, 196 U.S.App.D.C. 285, 307, 606 F.2d
1192, 1214 (1979),
aff'd in pertinent part by an equally
divided Court, 452 U. S. 713
(1981):
"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 [
sic] 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 [to force a trial]. . . . The effect of
this development upon the willingness of individuals to serve their
country is obvious."
[
Footnote 30]
This case involves no issue concerning the elements of the
immunity available to state officials sued for constitutional
violations under 42 U.S.C. § 1983. We have found previously,
however, that it would be
"untenable to draw a distinction for purposes of immunity law
between suits brought against state officials under § 1983 and
suits brought directly under the Constitution against federal
officials."
Butz v. Economou, 438 U.S. at
438 U. S.
504.
Our decision in no way diminishes the absolute immunity
currently available to officials whose functions have been held to
require a protection of this scope.
[
Footnote 31]
This case involves no claim that Congress has expressed its
intent to impose "no fault" tort liability on high federal
officials for violations of particular statutes or the
Constitution.
[
Footnote 32]
As in
Procunier v. Navarette, 434 U.S. at
434 U. S. 565,
we need not define here the circumstances under which "the state of
the law" should be "evaluated by reference to the opinions of this
Court, of the Courts of Appeals, or of the local District
Court."
[
Footnote 33]
Cf. Procunier v. Navarette, supra, at
434 U. S. 565,
quoting
Wood v. Strickland, 420 U.S. at
420 U. S. 322
("Because they could not reasonably have been expected to be aware
of a constitutional right that had not yet been declared,
petitioners did not act with such disregard for the established law
that their conduct
cannot reasonably be characterized as being
in good faith'").
[
Footnote 34]
We emphasize that our decision applies only to suits for civil
damages arising from actions within the scope of an official's
duties and in "objective" good faith. We express no view as to the
conditions in which injunctive or declaratory relief might be
available.
[
Footnote 35]
In
Butz, we admonished that "insubstantial" suits
against high public officials should not be allowed to proceed to
trial. 438 U.S. at
438 U. S. 507.
See Schuck,
supra, n 22, at 324-327. We reiterate this admonition.
Insubstantial lawsuits undermine the effectiveness of government as
contemplated by our constitutional structure, and "firm application
of the Federal Rules of Civil Procedure" is fully warranted in such
cases. 438 U.S. at
438 U. S.
508.
[
Footnote 36]
Petitioners also have urged us, prior to the remand, to rule on
the legal sufficiency of respondent's "implied" causes of action
under 5 U.S.C. § 7211 (1976 ed., Supp. IV) and 18 U.S.C. § 1505 and
his
Bivens claim under the First Amendment. We do not view
petitioners' argument on the statutory question as insubstantial.
Cf. Merrill Lynch, Pierce, Fenner & Smith, Inc. v.
Curran, 456 U. S. 353,
456 U. S.
377-378 (1982) (controlling question in implication of
statutory causes of action is whether Congress affirmatively
intended to create a damages remedy);
Middlesex County Sewerage
Auth. v. National Sea Clammers Assn., 453 U. S.
1 (1981) (same);
Texas Industries, Inc. v. Radcliff
Materials, Inc., 451 U. S. 630,
451 U. S.
638-639 (1981) (same). Nor is the
Bivens
question.
Cf. Bush v. Lucas, 647 F.2d 573, 576 (CA5 1981)
(holding that the "unique relationship between the Federal
Government and its civil service employees is a special
consideration which counsels hesitation in inferring a
Bivens remedy"). As in
Nixon v. Fitzgerald, ante
p.
457 U. S. 731,
however, we took jurisdiction of the case only to resolve the
immunity question under the collateral order doctrine. We therefore
think it appropriate to leave these questions for fuller
consideration by the District Court and, if necessary, by the Court
of Appeals.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN
join, concurring.
I agree with the substantive standard announced by the Court
today, imposing liability when a public official defendant
Page 457 U. S. 821
"knew or should have known" of the constitutionally violative
effect of his actions.
Ante at
457 U. S. 815,
457 U. S. 819.
This standard would not allow the official who
actually
knows that he was violating the law to escape liability for
his actions, even if he could not "reasonably have been expected"
to know what he actually did know.
Ante at
457 U. S. 819,
n. 33. Thus the clever and unusually well-informed violator of
constitutional rights will not evade just punishment for his
crimes. I also agree that this standard applies "across the board,"
to all "government officials performing discretionary functions."
Ante at
457 U. S. 818.
I write separately only to note that, given this standard, it seems
inescapable to me that some measure of discovery may sometimes be
required to determine exactly what a public official defendant did
"know" at the time of his actions. In this respect, the issue
before us is very similar to that addressed in
Herbert v.
Lando, 441 U. S. 153
(1979), in which the Court observed that
"[t]o erect an impenetrable barrier to the plaintiff's use of
such evidence on his side of the case is a matter of some
substance, particularly when defendants themselves are prone to
assert their goo[d f]aith. . . ."
Id. at
441 U. S. 170.
Of course, as the Court has already noted,
ante at
457 U. S.
818-819, summary judgment will be readily available to
public official defendants whenever the state of the law was so
ambiguous at the time of the alleged violation that it could not
have been "known" then, and thus liability could not ensue. In my
view, summary judgment will also be readily available whenever the
plaintiff cannot prove, as a threshold matter, that a violation of
his constitutional rights actually occurred. I see no reason why
discovery of defendants' "knowledge" should not be deferred by the
trial judge pending decision of any motion of defendants for
summary judgment on grounds such as these.
Cf. Herbert v.
Lando, supra, at
441 U. S. 180,
n. 4 (POWELL, J., concurring).
JUSTICE BRENNAN, JUSTICE WHITE, JUSTICE MARSHALL, and JUSTICE
BLACKMUN, concurring.
We join the Court's opinion but, having dissented in
Nixon
Page 457 U. S. 822
v. Fitzgerald, ante p.
457 U. S. 731, we
disassociate ourselves from any implication in the Court's opinion
in the present case that
Nixon v. Fitzgerald was correctly
decided.
JUSTICE REHNQUIST, concurring.
At such time as a majority of the Court is willing to reexamine
our holding in
Butz v. Economou, 438 U.
S. 478 (1978), I shall join in that undertaking with
alacrity. But until that time comes, I agree that the Court's
opinion in this case properly disposes of the issues presented, and
I therefore join it.
CHIEF JUSTICE BURGER, dissenting.
The Court today decides in
Nixon v. Fitzgerald, ante p.
457 U. S. 731,
what has been taken for granted for 190 years, that it is implicit
in the Constitution that a President of the United States has
absolute immunity from civil suits arising out of official acts as
Chief Executive. I agree fully that absolute immunity for official
acts of the President is, like executive privilege, "fundamental to
the operation of Government and inextricably rooted in the
separation of powers under the Constitution."
United States v.
Nixon, 418 U. S. 683,
418 U. S. 708
(1974). [
Footnote 2/1]
In this case, the Court decides that senior aides of the
President do not have derivative immunity from the President. I am
at a loss, however, to reconcile this conclusion with our holding
in
Gravel v. United States, 408 U.
S. 606 (1972). The Court reads
Butz v.
Economou, 438 U. S. 478
(1978), as resolving that question; I do not. Butz is clearly
distinguishable. [
Footnote 2/2]
Page 457 U. S. 823
In
Gravel, we held that it is implicit in the
Constitution that aides of Members of Congress have absolute
immunity for acts performed for Members in relation to their
legislative function. We viewed the aides' immunity as deriving
from the Speech or Debate Clause, which provides that "for any
Speech or Debate
in either House, [Senators and
Representatives] shall not be questioned in any other Place." Art.
I, § 6, cl. 1 (emphasis added). Read literally, the Clause would,
of course, limit absolute immunity only to the Member and only to
speech and debate within the Chamber. But we have read much more
into this plain language. The Clause says nothing about
"legislative acts" outside the Chambers, but we concluded that the
Constitution grants absolute immunity for legislative acts not only
"in either House" but in committees and conferences and in reports
on legislative activities.
Nor does the Clause mention immunity for congressional aides.
Yet, going far beyond any words found in the Constitution itself,
we held that a Member's aides who implement policies and decisions
of the Member are entitled to the same absolute immunity as a
Member. It is hardly an overstatement to say that we thus avoided a
"literalistic approach,"
Gravel, supra, at
408 U. S. 617,
and instead looked to the structure of the Constitution and the
evolution of the function of the Legislative Branch. In short, we
drew this immunity for legislative aides from a functional analysis
of the legislative process in the context of the Constitution taken
as a whole and in light of 20th-century realities. Neither
Presidents nor Members of Congress can, as they once did, perform
all their constitutional duties personally. [
Footnote 2/3]
Page 457 U. S. 824
We very properly recognized in
Gravel that the central
purpose of a Member's absolute immunity would be "diminished and
frustrated" if the legislative aides were not also protected by the
same broad immunity. Speaking for the Court in
Gravel,
JUSTICE WHITE agreed with the Court of Appeals that
"it is literally impossible, in view of the complexities of the
modern legislative process, with Congress almost constantly in
session and matters of legislative concern constantly
proliferating, for Members of Congress to perform their legislative
tasks
without the help of aides and assistants; that the
day-to-day work of such aides
is so critical to the Members'
performance that they must be treated as the latter's
alter egos; and that, if they are not so recognized, the
central role of the Speech or Debate Clause -- to prevent
intimidation of legislators by the Executive and accountability
before a possibly hostile judiciary . . . -- will inevitably be
diminished and frustrated."
408 U.S. at
408 U. S.
616-617 (emphasis added). I joined in that analysis and
continue to agree with it, for without absolute immunity for these
"elbow aides," who are indeed "alter egos," a Member could not
effectively discharge all of the assigned constitutional functions
of a modern legislator.
The Court has made this reality a matter of our constitutional
jurisprudence. How can we conceivably hold that a President of the
United States, who represents a vastly larger constituency than
does any Member of Congress, should not have "alter egos" with
comparable immunity? To perform the constitutional duties assigned
to the Executive would be "literally impossible, in view of the
complexities of the modern [Executive] process, . . . without the
help of
Page 457 U. S. 825
aides and assistants." [
Footnote
2/4]
Id. at
408 U. S. 616.
These words reflect the precise analysis of
Gravel, and
this analysis applies with at least as much force to a President.
The primary layer of senior aides of a President -- like a
Senator's "alter egos" -- are literally at a President's elbow,
with offices a few feet or at most a few hundred feet from his own
desk. The President, like a Member of Congress, may see those
personal aides many times in one day. They are indeed the
President's "arms" and "fingers" to aid in performing his
constitutional duty to see "that the laws [are] faithfully
executed." Like a Member of Congress, but on a vastly greater
scale, the President cannot personally implement a fraction of his
own policies and day-to-day decisions. [
Footnote 2/5]
For some inexplicable reason, the Court declines to recognize
the realities in the workings of the Office of a President, despite
the Court's cogent recognition in
Gravel concerning the
realities of the workings of 20th-century Members of Congress.
Absent equal protection for a President's aides, how will
Presidents be free from the risks of "intimidation . . . by
[Congress] and accountability before a possibly hostile
Page 457 U. S. 826
judiciary?"
Gravel, 408 U.S. at
408 U. S. 617.
Under today's holding in this case, the functioning of the
Presidency will inevitably be "diminished and frustrated."
Ibid.
Precisely the same public policy considerations on which the
Court now relies in
Nixon v. Fitzgerald, and that we
relied on only recently in
Gravel, are fully applicable to
senior Presidential aides. The Court's opinion in
Nixon v.
Fitzgerald correctly points out that, if a President were
subject to suit, awareness of personal vulnerability to suit
"frequently 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."
Ante at
457 U. S. 753.
This same negative incentive will permeate the inner workings of
the Office of the President if the Chief Executive's "alter egos"
are not protected derivatively from the immunity of the President.
In addition, exposure to civil liability for official acts will
result in constant judicial questioning, through judicial
proceedings and pretrial discovery, into the inner workings of the
Presidential Office beyond that necessary to maintain the
traditional checks and balances of our constitutional structure.
[
Footnote 2/6]
I challenge the Court and the dissenters in
Nixon v.
Fitzgerald who join in the instant holding to say that the
effectiveness of Presidential aides will not "inevitably be
diminished and frustrated,"
Gravel, supra, at
408 U. S. 617,
if they must weigh every act and decision in relation to the risks
of future
Page 457 U. S. 827
lawsuits. The
Gravel Court took note of the burdens on
congressional aides: the stress of long hours, heavy
responsibilities, constant exposure to harassment of the political
arena. Is the Court suggesting the stresses are less for
Presidential aides? By construing the Constitution to give only
qualified immunity to senior Presidential aides, we give those key
"alter egos" only lawsuits, winnable lawsuits perhaps, but lawsuits
nonetheless, with stress and effort that will disperse and drain
their energies and their purses. [
Footnote 2/7]
In this Court, we witness the new filing of as many as 100 cases
a week, many utterly frivolous and even bizarre. Yet the defending
party in many of these cases may have spent or become liable for
thousands of dollars in litigation expense. Hundreds of thousands
of other cases are disposed of without reaching this Court. When we
see the myriad irresponsible and frivolous cases regularly filed in
American courts, the magnitude of the potential risks attending
acceptance of public office emerges. Those potential risks
inevitably will be a factor in discouraging able men and women from
entering public service.
We judges -- collectively -- have held that the common law
provides us with absolute immunity for ourselves with respect to
judicial acts, however erroneous or ill-advised.
See, e.g.,
Stump v. Sparkman, 435 U. S. 349
(1978). Are the lowest ranking of 27,000 or more judges, thousands
of prosecutors, and thousands of congressional aides -- an
aggregate
Page 457 U. S. 828
of not less than 75,000 in all -- entitled to greater protection
than two senior aides of a President?
Butz v. Economou, 438 U. S. 478
(1978), does not dictate that senior Presidential aides be given
only qualified immunity.
Butz held only that a Cabinet
officer exercising discretion was not entitled to absolute
immunity; we need not abandon that holding. A senior Presidential
aide works more intimately with the President on a daily basis than
does a Cabinet officer, directly implementing Presidential
decisions literally from hour to hour.
In his dissent today in
Nixon v. Fitzgerald, JUSTICE
WHITE states that the "Court now applies the dissenting view in
Butz to the Office of the President."
Ante at
457 U. S. 764.
However, this suggests that a President and his Cabinet officers,
who serve only "during the pleasure of the President," are on the
same plane constitutionally. It wholly fails to distinguish the
role of a President or his "elbow aides" from the role of Cabinet
officers, who are department heads, rather than "alter egos." It
would be in no sense inconsistent to hold that a President's
personal aides have greater immunity than Cabinet officers.
The Court's analysis in
Gravel demonstrates that the
question of derivative immunity does not and should not depend on a
person's rank or position in the hierarchy, but on the
function performed by the person and the relationship of
that person to the superior. Cabinet officers clearly outrank
United States Attorneys, yet qualified immunity is accorded the
former and absolute immunity the latter; rank is important only to
the extent that the rank determines the function to be performed.
The function of senior Presidential aides, as the "alter egos" of
the President, is an integral, inseparable part of the function of
the President. [
Footnote 2/8]
JUSTICE WHITE
Page 457 U. S. 829
was clearly correct in
Gravel, stating that Members of
Congress could not
"perform their legislative tasks without the help of aides and
assistants; [and] that the day-to-day work of such aides is so
critical to the Members' performance that they must be treated as
the latter's alter egos. . . ."
408 U.S. at
408 U. S.
616-617.
By ignoring
Gravel and engaging in a wooden application
of
Butz, the Court significantly undermines the
functioning of the Office of the President. Under the Court's
opinion in
Nixon today, it is clear that Presidential
immunity derives from the Constitution as much as congressional
immunity comes from that source. Can there rationally be one rule
for congressional aides and another for Presidential aides simply
because the initial absolute immunity of each derives from
different aspects of the Constitution? I find it inexplicable why
the Court makes no effort to demonstrate why the Chief Executive of
the Nation should not be assured that senior staff aides will have
the same protection as the aides of Members of the House and
Senate.
[
Footnote 2/1]
As I noted in
Nixon v. Fitzgerald, Presidential
immunity for official acts while in office has never been seriously
questioned until very recently.
See ante at
457 U. S. 758,
n. 1 (BURGER, C.J., concurring).
[
Footnote 2/2]
If indeed there is an irreconcilable conflict between
Gravel and
Butz, the Court has an obligation to
try to harmonize its holdings -- or at least tender a reasonable
explanation. The Court has done neither.
[
Footnote 2/3]
A Senator's allotment for staff varies significantly, but can
range from as few as 17 to over 70 persons, in addition to
committee staff aides who perform important legislative functions
for Members. S. DOC. No. 97-19, Pp. 27-106 (1981). House Members
have roughly 18 to 26 assistants at any one time, in addition to
committee staff aides. H.R. Doc. No. 97-113, pp. 28-174 (1981).
[
Footnote 2/4]
In the early years of the Republic, Members of Congress and
Presidents performed their duties without staffs of aides and
assistants. Washington and Jefferson spent much of their time on
their plantations. Congress did not even appropriate funds for a
Presidential clerk until 1857. Lincoln opened his own mail,
Cleveland answered the phone at the White House, and Wilson
regularly typed his own speeches. S. Wayne, The Legislative
Presidency 30 (1978). Whatever may have been the situation
beginning under Washington, Adams, and Jefferson, we know today
that the Presidency functions with a staff that exercises a wide
spectrum of authority and discretion and directly assists the
President in carrying out constitutional duties.
[
Footnote 2/5]
JUSTICE WHITE's dissent in
Nixon v. Fitzgerald today
expresses great concern that a President may "cause serious injury
to any number of citizens even though he knows his conduct violates
a statute. . . ."
Ante at
457 U. S. 764.
What the dissent wholly overlooks, however, is the plain fact that
the absolute immunity does not protect a President for acts
outside the constitutional function of a President.
[
Footnote 2/6]
The same remedies for checks on Presidential abuse also will
check abuses by the comparatively small group of senior aides who
act as "alter egos" of the President. The aides serve at the
pleasure of the President, and thus may be removed by the
President. Congressional and public scrutiny maintain a constant
and pervasive check on abuses, and such aides may be prosecuted
criminally.
See Nixon, ante at
457 U. S. 757.
However, a criminal prosecution cannot be commenced absent careful
consideration by a grand jury at the request of a prosecutor; the
same check is not present with respect to the commencement of civil
suits in which advocates are subject to no realistic
accountability.
[
Footnote 2/7]
The Executive Branch may, as a matter of grace, supply some
legal assistance. The Department of Justice has a longstanding
policy of representing federal officers in civil suits involving
conduct performed within the scope of their employment. In
addition, the Department provides for retention of private legal
counsel when necessary.
See Senate Subcommittee on
Administrative Practice and Procedure of the Committee on the
Judiciary, Justice Department Retention of Private Legal Counsel to
Represent Federal Employees in Civil Lawsuits, 95th Cong., 2d Sess.
(Comm. Print 1978). The Congress frequently pays the expenses of
defending its Members even as to acts wholly outside the
legislative function.
[
Footnote 2/8]
This Court had no trouble reconciling
Gravel with
Kilbourn v. Thompson, 103 U. S. 168
(1881). In
Kilbourn, the Sergeant-at-Arms of the House of
Representatives was held not to share the absolute immunity enjoyed
by the Members of Congress who ordered that officer to act.