Presidential immunity: court rules, but debate rages on

Presidential immunity: how broad, how long?

What are the sovereign rights of the nation's chief executive? Should he be subject to civil, as well as criminal, prosecution? Is the president of the United States ''above the law''?

These questions and more are swirling around constitutional circles, following a US Supreme Court decision late last week ruling that Richard Nixon and any other US president of has absolute immunity from civil suits - even if they deliberately violate the rights of citizens. In so deciding, the high court reversed a US District Court of Appeals ruling.

The split decision (5 to 4) and the strong differences in interpretation among the Justices almost assures continued debate on the broader issue - the limits of presidential power - in the courts, in Congress, and in public forums.

In connection with the upcoming constitutional bicentennial in 1987, several groups, including the American Political Science Association and the American Enterprise Institute, are already conducting national studies on the evolution and scope of presidential power. And legislative inquiry into this question is also likely.

The immunity decision, ironically, comes at a time when the country is remembering the Watergate incident and White House abuses of authority 10 years ago.

The ruling is immediately significant because it is a victory for former President Nixon in a long-standing damage suit brought against him by a former Air Force budget analyst, A. Ernest Fitzgerald, who charged he was fired from his job in l969 for ''whistle blowing'' in Congressional testimony about large cost overruns in development of the C-5A transport plane.

However, Mr. Fitzgerald, in separate action against the government, recently won back his job, and was awarded $200,000 in legal fees. In addition, a damage suit against Mr. Nixon was settled out of court with a $142,000 payment to Mr. Fitzgerald.

Constitutional scholars note that, in the long run, the most important issues may be those related to the question of presidential immunity.

For instance, a companion ruling by the court refused the same absolute immunity to presidential aides. But the jurists, in giving ''qualified immunity'' to White House advisers and other federal and state officials, removed the so-called ''subjective test'' that up to now required the accused to prove he had not acted ''with malicious intent.'' Some court interpretors say that, because the new definition removes ''state of mind'' as an issue, it will, in effect, result in more cases against government officials being dismissed before trial.

It is also notable that in the case of a president or former chief executive, the court gave immunity only from damages in civil suits, not from criminal prosecutions. The majority of the high tribunal stressed that they saw no threat to the 1974 ruling requiring President Nixon to turn over the Watergate tapes.

The broader question - which will undoubtedly continue to be debated - is whether as a result of this ruling the nation is left with insufficient protection against presidential misconduct.

Justice Lewis Powell, writing for the majority, insists that the constitutional remedy of impeachment, together with ''informal checks'' on executive actions - constant scrutiny by the media and Congress, the desire for reelection, and ''a president's traditional concern for his historical stature'' - are sufficiently effective restraints.

But others, including Justice Byron White, strongly disagree, insisting that the immunity decision tends to place a president above the law. ''Attaching absolute immunity to the office of the president . . . is a reversion to the old notion that the king can do no wrong,'' Justice White writes for the dissenters.

Also at issue is the separation-of-powers principle, points out John Killian, specialist on constitutional law for the Congressional Research Service. ''The use of the courts to sue the president has been precluded (by the US Supreme Court),'' he says.

Mr. Killian takes issue, in part, with those who hail the immunity ruling as a precedent-setting decision, explaining that it is more important in terms of the development of legal doctrine and the clarification of the role of the president.

''Until the Nixon era, most people assumed the president of the United States could not be sued,'' he adds.

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