Immunity for presidents: how much?
For those Americans who have argued that the office of US president has been weakened during recent years -- particularly by the Vietnam war and Watergate -- last week's US Supreme Court decision granting a president absolute immunity from civil lawsuits will be considered an historic victory. The decision, after all, was based on what the court called ''the public interest'' in letting a president act without fear of litigation.
At the same time, however, the very closeness of the vote -- a five-to-four decision -- is expected to raise anew the public debate over the extent to which a president can act ''above the law.'' In fact, many legal scholars believe that the court will be called upon in future cases to define more precisely the actual boundaries or conditions of immunity for ''official'' actions.
The irony of the court's decision is hardly lost on legal scholars -- coming just one week after the 10th anniversary of the Watergate break-in and involving the same president -- President Nixon -- who is associated with that constitutional challenge. It is also ironic that three of the five justices supporting the majority were appointed by Mr. Nixon; and that a fourth justice was appointed by his chosen successor, President Ford.
The immunity issue was dealt with by the court in two cases, one involving President Nixon and a companion case involving two close aides to Mr. Nixon.
* In the presidential case, the court ruled that a president is completely immune from civil lawsuits for damages based on official actions made while in office. In writing for the majority, Justice Lewis Powell wrote that, so long as the actions taken by the president were within the ''outer perimeter'' of his official duties, they could not serve as the basis for a civil suit, even if a person's constitutional rights may have been violated.
* In the companion case the court, in an eight-to-one decision, held that presidential aides have a ''qualified immunity'' from civil suits. The court gave a new meaning to such limited immunity by in effect taking away earlier requirements that officials must prove they were acting in ''good faith.''
In this week's ruling on presidential immunity, Justice Powell argued that the decision ''will not leave the nation without sufficient protection against misconduct on the part of the chief executive.'' Rather, he noted, the impeachment process, congressional oversight, and scrutiny by the press will ensure that ''absolute immunity will not place the President 'above the law.' ''
Still, it is the the very intensity of the dissenting opinion, written by Justice Byron White, that suggests that the decision may not be the final word. Justice White argued that ''attaching absolute immunity to the office of the president, rather than to particular activities that the president might perform , places the president above the law.'' That, he added, ''is a reversion to the old notion that the king can do no wrong.''
One issue left by the court is what constitutes the ''outer perimeters'' of presidential authority.
Another important issue that should now be considered by Congress is the extent to which current laws protect ''whistle blowers'' -- those persons who risk their jobs and reputations by exposing malfeasance or inefficiency within government. The presidential case concerning Mr. Nixon, for example, grew out of a civil lawsuit brought by Ernest Fitzgerald, who was fired in 1969 after revealing multibillion defense cost overruns. Certainly, the public interest would be best served by having Congress consider all appropriate laws to ensure that the effect of the new ruling is not to thwart disclosure of wrongdoing or inefficiency.