Nixon v. Fitzgerald

457 U.S. 731 (1982)

Argued November 30, 1981; Decided June 24, 1982




POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. BURGER, C.J., filed a concurring opinion,post, p. 457 U. S. 758. WHITE, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 457 U. S. 764. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 457 U. S. 797.

JUSTICE POWELL delivered the opinion of the Court.


The plaintiff in this lawsuit seeks relief in civil damages from a former President of the United States. The claim rests on actions allegedly taken in the former President's official capacity during his tenure in office. The issue before us is the scope of the immunity possessed by the President of the United States.




In January, 1970 the respondent A. Ernest Fitzgerald lost his job as a management analyst with the Department of the Air Force. Fitzgerald's dismissal occurred in the context of a departmental reorganization and reduction in force, in [457 U. S. 734] which his job was eliminated. In announcing the reorganization, the Air Force characterized the action as taken to promote economy and efficiency in the Armed Forces.


Respondent's discharge attracted unusual attention in Congress and in the press. Fitzgerald had attained national prominence approximately one year earlier, during the waning months of the Presidency of Lyndon B. Johnson. On November 13, 1968, Fitzgerald appeared before the Subcommittee on Economy in Government of the Joint Economic Committee of the United States Congress. To the evident embarrassment of his superiors in the Department of Defense, Fitzgerald testified that cost-overruns on the CA transport plane could approximate $2 billion. [Footnote 1] He also revealed that unexpected technical difficulties had arisen during the development of the aircraft.


Concerned that Fitzgerald might have suffered retaliation for his congressional testimony, the Subcommittee on Economy in Government convened public hearings on Fitzgerald's dismissal. [Footnote 2] The press reported those hearings prominently, [457 U. S. 735] as it had the earlier announcement that his job was being eliminated by the Department of Defense. At a news conference on December 8, 1969, President Richard Nixon was queried about Fitzgerald's impending separation from Government service. [Footnote 3] The President responded by promising to look into the matter. [Footnote 4] Shortly after the news conference, the petitioner asked White House Chief of Staff H.R. Haldeman to arrange for Fitzgerald's assignment to another job within the administration. [Footnote 5] It also appears that the President suggested to Budget Director Robert Mayo that Fitzgerald might be offered a position in the Bureau of the Budget. [Footnote 6]


Fitzgerald's proposed reassignment encountered resistance within the administration. [Footnote 7] In an internal memorandum of January 20, 1970, White House aide Alexander Butterfield reported to Haldeman that "'Fitzgerald is no doubt a top-notch cost expert, but he must be given very low [457 U. S. 736] marks in loyalty; and after all, loyalty is the name of the game.' [Footnote 8]"


Butterfield therefore recommended that "[w]e should let him bleed, for a while at least.'" [Footnote 9] There is no evidence of White House efforts to reemploy Fitzgerald subsequent to the Butterfield memorandum.


Absent any offer of alternative federal employment, Fitzgerald complained to the Civil Service Commission. In a letter of January 20, 1970, he alleged that his separation represented unlawful retaliation for his truthful testimony before a congressional Committee. [Footnote 10] The Commission convened a closed hearing on Fitzgerald's allegations on May 4, 1971. Fitzgerald, however, preferred to present his grievances in public. After he had brought suit and won an injunction,Fitzgerald v. Hampton, 152 U.S.App.D.C. 1, 467 F.2d 755 (1972), public hearings commenced on January 26, 1973. The hearings again generated publicity, much of it devoted to the testimony of Air Force Secretary Robert Seamans. Although he denied that Fitzgerald had lost his position in retaliation for congressional testimony, Seamans testified that he had received "some advice" from the White House before [457 U. S. 737] Fitzgerald's job was abolished. [Footnote 11] But the Secretary declined to be more specific. He responded to several questions by invoking "executive privilege." [Footnote 12]


At a news conference on January 31, 1973, the President was asked about Mr. Seamans' testimony. Mr. Nixon took the opportunity to assume personal responsibility for Fitzgerald's dismissal:


"I was totally aware that Mr. Fitzgerald would be fired or discharged or asked to resign. I approved it and Mr. Seamans must have been talking to someone who had discussed the matter with me. No, this was not a case of some person down the line deciding he should go. It was a decision that was submitted to me. I made it, and I stick by it. [Footnote 13]"


A day later, however, the White House press office issued a retraction of the President's statement. According to a press spokesman, the President had confused Fitzgerald with another former executive employee. On behalf of the President, the spokesman asserted that Mr. Nixon had not had "put before him the decision regarding Mr. Fitzgerald." [Footnote 14]

After hearing over 4,000 pages of testimony, the Chief Examiner for the Civil Service Commission issued his decision [457 U. S. 738] in the Fitzgerald case on September 18, 1973. Decision on the Appeal of A. Ernest Fitzgerald, as reprinted in App. 60a. The Examiner held that Fitzgerald's dismissal had offended applicable civil service regulations. Id. at 86a-87a. [Footnote 15] The Examiner based this conclusion on a finding that the departmental reorganization in which Fitzgerald lost his job, though purportedly implemented as an economy measure, was in fact motivated by "reasons purely personal to" respondent. Id. at 86a. As this was an impermissible basis for a reduction in force, [Footnote 16] the Examiner recommended Fitzgerald's reappointment to his old position or to a job of comparable authority. [Footnote 17]


[457 U. S. 739] The Examiner, however, explicitly distinguished this narrow conclusion from a suggested finding that Fitzgerald had suffered retaliation for his testimony to Congress. As found by the Commission, "the evidence of record does not support [Fitzgerald's] allegation that his position was abolished and that he was separated . . . in retaliation for his having revealed the C-5A cost overrun in testimony before the Proxmire Committee on November 13, 1968." Id. at 81a.


Following the Commission's decision, Fitzgerald filed a suit for damages in the United States District Court. In it, he raised essentially the same claims presented to the Civil Service Commission. [Footnote 18] As defendants he named eight officials of the Defense Department, White House aide Alexander Butterfield, and "one or More" unnamed "White House Aides" styled only as "John Does."


The District Court dismissed the action under the District of Columbia's 3-year statute of limitations, Fitzgerald v. Seamans,384 F.Supp. 688 (DC 1974), and the Court of Appeals affirmed as to all but one defendant, White House aide Alexander Butterfield, Fitzgerald v. Seamans, 180 U.S.App.D.C. 75, 553 F.2d 220 (1977). The Court of Appeals reasoned that Fitzgerald had no reason to suspect White House involvement in his dismissal, at least until 1973. In that year, reasonable grounds for suspicion had arisen, most notably through publication of the internal White House memorandum in which Butterfield had recommended that Fitzgerald at least should be made to "bleed for a while" before being offered another job in the administration. Id. at 80, 84, 553 F.2d at 225, 229. Holding that concealment of illegal activity [457 U. S. 740] would toll the statute of limitations, the Court of Appeals remanded the action against Butterfield for further proceedings in the District Court.


Following the remand and extensive discovery thereafter, Fitzgerald filed a second amended complaint in the District Court on July 5, 1978. It was in this amended complaint -- more than eight years after he had complained of his discharge to the Civil Service Commission -- that Fitzgerald first named the petitioner Nixon as a party defendant. [Footnote 19] Also included as defendants were White House aide Bryce Harlow and other officials of the Nixon administration. Additional discovery ensued. By March, 1980, only three defendants remained: the petitioner Richard Nixon and White House aides Harlow and Butterfield. Denying a motion for summary judgment, the District Court ruled that the action must proceed to trial. Its order of March 26 held that Fitzgerald had stated triable causes of action under two federal statutes and the First Amendment to the Constitution. [Footnote 20] The court also [457 U. S. 741] ruled that petitioner was not entitled to claim absolute Presidential immunity.


Petitioner took a collateral appeal of the immunity decision to the Court of Appeals for the District of Columbia Circuit. The Court of Appeals dismissed summarily. It apparently did so on the ground that its recent decision in Halpern v. Kissinger, 196 U.S.App.D.C. 285, 606 F.2d 1192 (1979), aff'd in pertinent part by an equally divided Court, 452 U. S. 713 (1981), had rejected this claimed immunity defense.


As this Court has not ruled on the scope of immunity available to a President of the United States, we granted certiorari to decide this important issue. 452 U.S. 959 (1981).


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Here a former President asserts his immunity from civil damages claims of two kinds. He stands named as a defendant in a direct action under the Constitution and in two statutory actions under federal laws of general applicability. In neither case has Congress taken express legislative action to subject the President to civil liability for his official acts. [Footnote 27]


[457 U. S. 749] Applying the principles of our cases to claims of this kind, we hold that petitioner, as a former President of the United States, is entitled to absolute immunity from damages liability predicated on his official acts. We consider this immunity a functionally mandated incident of the President's unique office, rooted in the constitutional tradition of the separation of powers and supported by our history. Justice Story's analysis remains persuasive:

"There are . . . incidental powers belonging to the executive department which are necessarily implied from the nature of the functions which are confided to it. Among these must necessarily be included the power to perform them. . . . The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office, and, for this purpose, his person must be deemed, in civil cases at least, to possess an official inviolability."

3 J. Story, Commentaries on the Constitution of the United States § 1563, pp. 418-419 (1st ed. 1833).




The President occupies a unique position in the constitutional scheme. Article II, § 1, of the Constitution provides that "[t]he executive Power shall be vested in a President of [457 U. S. 750] the United States. . . ." This grant of authority establishes the President as the chief constitutional officer of the Executive Branch, entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity. These include the enforcement of federal law—it is the President who is charged constitutionally to "take Care that the Laws be faithfully executed"; [Footnote 28] the conduct of foreign affairs— a realm in which the Court has recognized that "[i]t would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret [Footnote 29]" and management of the Executive Branch—a task for which

"imperative reasons requir[e] an unrestricted power [in the President] to remove the most important of his subordinates in their most important duties.” [Footnote 30]


In arguing that the President is entitled only to qualified immunity, the respondent relies on cases in which we have recognized immunity of this scope for governors and cabinet officers. E.g., Butz v. Economou, 438 U. S. 478 (1978); Scheuer v. Rhodes, 416 U. S. 232 (1974). We find these cases to be inapposite. The President's unique status under the Constitution distinguishes him from other executive officials. [Footnote 31]


[457 U. S. 751] Because of the singular importance of the President's duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government. As is the case with prosecutors and judges—[457 U. S. 752] for whom absolute immunity now is established— a President must concern himself with matters likely to "arouse the most intense feelings." Pierson v. Ray, 386 U.S. at 386 U. S. 554. Yet, as our decisions have recognized, it is in precisely such cases that there exists the greatest public interest in providing an official "the maximum ability to deal fearlessly and impartially with" the duties of his office. Ferri v. Ackerman, 444 U. S. 193444 U. S. 203 (1979). This concern is compelling where the officeholder must make the most sensitive and far-reaching decisions entrusted to any official under our constitutional system. [Footnote 32] Nor can the sheer prominence of the President's [457 U. S. 753] office be ignored. In view of the visibility of his office and the effect of his actions on countless people, the President would be an easily identifiable target for suits for civil damages. [Footnote 33] Cognizance of this personal vulnerability 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.




Courts traditionally have recognized the President's constitutional responsibilities and status as factors counseling judicial deference and restraint. [Footnote 34] For example, while courts generally have looked to the common law to determine the scope of an official's evidentiary privilege, [Footnote 35] we have recognized that the Presidential privilege is "rooted in the separation of powers under the Constitution." United States v. Nixon, 418 U.S. at 418 U. S. 708. It is settled law that the separation of powers doctrine does not bar every exercise of jurisdiction

[457 U. S. 754] over the President of the United States. See, e.g., United States v. Nixon, supra; United States v. Burr, 25 F.Cas. 187, 191, 196 (No. 14,694) (CC Va. 1807); cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). [Footnote 36] But our cases also have established that a court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch. See Nixon v. Administrator of General Services, 433 U. S. 425433 U. S. 443 (1977); United States v. Nixon, supra, at 418 U. S. 703-713. When judicial action is needed to serve broad public interests -- as when the Court acts not in derogation of the separation of powers, but to maintain their proper balance, cf. Youngstown Sheet & Tube Co. v. Sawyer, supra, or to vindicate the public interest in an ongoing criminal prosecution, see United States v. Nixon, supra -- the exercise of jurisdiction has been held warranted. In the case of this merely private suit for damages based on a President's official acts, we hold it is not. [Footnote 37]


[457 U. S. 755]



In defining the scope of an official's absolute privilege, this Court has recognized that the sphere of protected action must be related closely to the immunity's justifying purposes. Frequently our decisions have held that an official's absolute immunity should extend only to acts in performance of particular functions of his office. See Butz v. Economou, 438 U.S. at438 U. S. 508-517; cf. Imbler v. Pachtman, 424 U.S. at 424 U. S. 430-431. But the Court also has refused to draw functional lines finer than history and reason would support. See, e.g., Spalding v. Vilas, 161 U.S. at 161 U. S. 498 (privilege extends to all matters "committed by law to [an official's] control or supervision"); Barr v. Matteo, 360 U. S. 564360 U. S. 575 (1959) (fact "that the action here taken was within the outer perimeter of petitioner's line of duty is enough to render the privilege applicable . . ."); [457 U. S. 756] Stump v. Sparkman, 435 U.S. at 435 U. S. 363, and n. 12 (judicial privilege applies even to acts occurring outside "the normal attributes of a judicial proceeding"). In view of the special nature of the President's constitutional office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the "outer perimeter" of his official responsibility.


Under the Constitution and laws of the United States, the President has discretionary responsibilities in a broad variety of areas, many of them highly sensitive. In many cases, it would be difficult to determine which of the President's innumerable "functions" encompassed a particular action. In this case, for example, respondent argues that he was dismissed in retaliation for his testimony to Congress -- a violation of 5 U.S.C. § 7211 (1976 ed., Supp. IV) and 18 U.S.C. § 1505. The Air Force, however, has claimed that the underlying reorganization was undertaken to promote efficiency. Assuming that petitioner Nixon ordered the reorganization in which respondent lost his job, an inquiry into the President's motives could not be avoided under the kind of "functional" theory asserted both by respondent and the dissent. Inquiries of this kind could be highly intrusive.


Here, respondent argues that petitioner Nixon would have acted outside the outer perimeter of his duties by ordering the discharge of an employee who was lawfully entitled to retain his job in the absence of "such cause as will promote the efficiency of the service.'" Brief for Respondent 39, citing 5 U.S.C. § 7512(a). Because Congress has granted this legislative protection, respondent argues, no federal official could, within the outer perimeter of his duties of office, cause Fitzgerald to be dismissed without satisfying this standard in prescribed statutory proceedings.


This construction would subject the President to trial on virtually every allegation that an action was unlawful, or was taken for a forbidden purpose. Adoption of this construction thus would deprive absolute immunity of its intended effect. [457 U. S. 757]


It clearly is within the President's constitutional and statutory authority to prescribe the manner in which the Secretary will conduct the business of the Air Force. See 10 U.S.C. § 8012(b). Because this mandate of office must include the authority to prescribe reorganizations and reductions in force, we conclude that petitioner's alleged wrongful acts lay well within the outer perimeter of his authority.




A rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive. [Footnote 38] There remains the constitutional remedy of impeachment. [Footnote 39] In addition, there are formal and informal checks on Presidential action that do not apply with equal force to other executive officials. The President is subjected to constant scrutiny by the press. Vigilant oversight by Congress also may serve to deter Presidential abuses of office, as well as to make credible the threat of impeachment. [Footnote 40] Other incentives to avoid misconduct may include a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a President's traditional concern for his historical stature.


[457 U. S. 758] The existence of alternative remedies and deterrents establishes that absolute immunity will not place the President "above the law." [Footnote 41] For the President, as for judges and prosecutors, absolute immunity merely precludes a particular private remedy for alleged misconduct in order to advance compelling public ends.




For the reasons stated in this opinion, the decision of the Court of Appeals is reversed, and the case is remanded for action consistent with this opinion.


So ordered.




[Footnote 1] See Economics of Military Procurement: Hearings before the Subcommittee on Economy in Government of the Joint Economic Committee, 90th Cong., 2d Sess., pt. I, pp.199-201 (1968-1969). It is not disputed that officials in the Department of Defense were both embarrassed and angered by Fitzgerald's testimony. Within less than two months of respondent's congressional appearance, staff had prepared a memorandum for the outgoing Secretary of the Air Force, Harold Brown, listing three ways in which Fitzgerald might be removed from his position. See App. 209a-211a (memorandum of John Lang to Harold Brown, Jan. 6, 1969). Among these was a "reduction in force" -- the means by which Fitzgerald ultimately was removed by Brown's successor in office under the new Nixon administration. The reduction in force was announced publicly on November 4, 1969, and Fitzgerald accordingly was separated from the Air Force upon the elimination of his job on January 5, 1970.

[Footnote 2] See The Dismissal of A. Ernest Fitzgerald by the Department of Defense: Hearings before the Subcommittee on Economy in Government of the Joint Economic Committee, 91st Cong., 1st Sess. (1969). Some 60 Members of Congress also signed a letter to the President protesting the "firing of this dedicated public servant" as a "punitive action." Id. at 115-116.

[Footnote 3] A briefing memorandum on the Fitzgerald matter had been prepared by White House staff in anticipation of a possible inquiry at the forthcoming press conference. Authored by aide Patrick Buchanan, it advanced the view that the Air Force was "firing . . . a good public servant." App. 269a (memorandum of Patrick Buchanan to Richard Nixon, Dec. 5, 1969). The memorandum suggested that the President order Fitzgerald's retention by the Defense Department.

[Footnote 4] Id. at 228a.

[Footnote 5] See id. at 109a-112a (deposition of H.R. Haldeman); id. at 137a-141a (deposition of petitioner Richard Nixon). Haldeman's deposed testimony was based on his handwritten notes of December 12, 1969. Id. at 275a.

[Footnote 6] See id. at 126a (deposition of Robert Mayo); id. at 141a (deposition of Richard Nixon).

[Footnote 7] Both Mayo and his deputy, James Schlesinger, appear to have resisted at least partly due to a suspicion that Fitzgerald lacked institutional loyalty to executive policies and that he spoke too freely in communications with friends on Capitol Hill. Both also stated that high-level positions were presently unavailable within the Bureau of the Budget. See id. at 126a (deposition of Robert Mayo); id. at 146a-147a (deposition of James Schlesinger).

[Footnote 8] Quoted in Decision on the Appeal of A. Ernest Fitzgerald (Sept. 18, 1973) (CSC Decision), reprinted in App. 60a, 84a. (Page citations to the CSC Decision refer to the cited page in the Joint Appendix.)

[Footnote 9] Id. at 85a. The memorandum added that "[w]e owe "first choice on Fitzgerald" to [Senator] Proxmire and others who tried so hard to make him a hero [for exposing the cost overruns].'" Suspicion of Fitzgerald's assumed loyalty toward Senator Proxmire was widely shared in the White House and in the Defense Department. According to the CSC Decision, supra:

"While Mr. Fitzgerald has denied that he was 'Senator Proxmier's [sic] boy in the Air Force,' and he may honestly believe it, we find this statement difficult to accept. It is evident that the top officials in the Air Force, without specifically saying so, considered him to be just that. . . . We also note that, upon leaving the Air Force, Mr. Fitzgerald was employed as a consultant by the Proxmire Committee, and that Senator Proxmire appeared at the Commission hearing as a character witness for [Fitzgerald]." App. 83a.

[Footnote 10] Id. at 61a.

[Footnote 11] See id. at 83a-84a.

[Footnote 12] See ibid.

[Footnote 13] Id. at 185a. A few hours after the press conference, Mr. Nixon repeated privately to Presidential aide Charles Colson that he had ordered Fitzgerald's firing. Id. at 214a-215a (recorded conversation of Jan. 31, 1973).

[Footnote 14] Id. at 196a (transcription of statement of White House press secretary Ronald Ziegler, Feb. 1, 1973). In a conversation with aide John Ehrlichman, following his conversation with Charles Colson, see n

 13, supra, the President again had claimed responsibility for Fitzgerald's dismissal. When Ehrlichman corrected him on several details, however, the President concluded that he was "thinking of another case." Id. at 21& (recorded conversation of Jan. 31, 1973). See id. at 220a. It was after this conversation that the retraction was ordered.

[Footnote 15] Fitzgerald's position in the Air Force was in the "excepted service," and therefore not covered by civil service rules and regulations for the competitive service. Fitzgerald v. Hampton, 152 U.S.App.D.C. 1, 4, 467 F.2d 755, 758 (1972); see CSC Decision, App. 63a-64a. In Hampton, however, the court held that Fitzgerald's employment nonetheless was under "legislative protection," since he was a "preference eligible" veteran entitled to various statutory protections under the Veterans' Preference Act. See 152 U.S.App.D.C. at 4-14, 467 F.2d at 758-768. Among these were the benefits of the reduction-in-force procedures established by civil service regulation. See id. at 4, 467 F.2d at 758.

[Footnote 16] The Examiner found that Fitzgerald in fact was dismissed because of his superiors' dissatisfaction with his job performance. App. 86a-87a. Their attitude was evidenced by "statements that he was not a team player' and `not on the Air Force team.'" Id. at 83a. Without deciding whether this would have been an adequate basis for an "adverse action" against Fitzgerald as an "inadequate or unsatisfactory employee," id. at 86a, the Examiner held that the Commission's adverse action procedures, current version codified at 5 CFR pt. 752 (1982), implicitly forbade the Air Force to employ a "reduction in force" as a means of dismissing respondent for reasons "personal to" him. App. 87a.

[Footnote 17] The Commission also ordered that Fitzgerald should receive backpayId. at 87a-88a. Following the Commission's order, respondent was offered a new position with the Defense Department, but not one that he regarded as equivalent to his former employment. Fitzgerald accordingly filed an enforcement action in the District Court. This litigation ultimately culminated in a settlement agreement. Under its terms, the United States Air Force agreed to reassign Fitzgerald to his former position as Management Systems Deputy to the Assistant Secretary of the Air Force, effective June 21, 1982. SeeSettlement Agreement in Fitzgerald v. Hampton et al., Civ. No. 71486 (DC June 15, 1982).

[Footnote 18] The complaint alleged a continuing conspiracy to deprive him of his job, to deny him reemployment, and to besmirch his reputation. Fitzgerald alleged that the conspiracy had continued through the Commission hearings and remained in existence at the initiation of the lawsuit. See Fitzgerald v. Seamans, 384 F.Supp. 688, 690-692 (DC 1974).


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[Footnote 27] In the present case, we therefore are presented only with "implied" causes of action, and we need not address directly the immunity question as it would arise if Congress expressly had created a damages action against the President of the United States. This approach accords with this Court's settled policy of avoiding unnecessary decision of constitutional issues. Reviewing this case under the "collateral order" doctrine, see supra at 457 U. S. 742, we assume for purposes of this opinion that private causes of action may be inferred both under the First Amendment and the two statutes on which respondent relies. But it does not follow that we must -- in considering a Bivens (Bivens v. Six Unknown Fed. Narcotics Agents,403 U. S. 388 (1971)) remedy or interpreting a statute in light of the immunity doctrine -- assume that the cause of action runs against the President of the United States. Cf. Tenney v. Brandhove, 341 U. S. 367341 U. S. 376 (1951) (construing 1983 in light of the immunity doctrine, the Court could not accept "that Congress . . . would impinge on a tradition [of legislative immunity] so well grounded in history and reason by covert inclusion in the general language before us," and therefore would not address issues that would arise if Congress had undertaken to deprive state legislators of absolute immunity). Consequently, our holding today need only be that the President is absolutely immune from civil damages liability for his official acts in the absence of explicit affirmative action by Congress. We decide only this constitutional issue, which is necessary to disposition of the case before us.

[Footnote 28] U.S.Const., Art. II, § 3.

[Footnote 29] Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U. S. 103333 U. S. 111 (1948).

[Footnote 30] Myers v. United States, 272 U. S. 52272 U. S. 134-135 (1926).

[Footnote 31] Noting that the Speech and Debate Clause provides a textual basis for congressional immunity, respondent argues that the Framers must be assumed to have rejected any similar grant of executive immunity. This argument is unpersuasive. First, a specific textual basis has not been considered a prerequisite to the recognition of immunity. No provision expressly confers judicial immunity. Yet the immunity of judges is well settled. See, e.g., 80 U. S. Fisher, 13 Wall. 335 (1872);Stump v. Sparkman, 435 U. S. 349 (1978). Second, this Court already has established that absolute immunity may be extended to certain officials of the Executive Branch. Butz v. Economou, 438 U.S. at 438 U. S. 511-512; see Imbler v. Pachtman, 424 U. S. 409 (1976) (extending immunity to prosecutorial officials within the Executive Branch). Third, there is historical evidence from which it may be inferred that the Framers assumed the President's immunity from damages liability. At the Constitutional Convention several delegates expressed concern that subjecting the President even to impeachment would impair his capacity to perform his duties of office. See 2 M. Farrand, Records of the Federal Convention of 1787, p. 64 (1911) (remarks of Gouverneur Morris); id. at 66 (remarks of Charles Pinckney). The delegates, of course, did agree to an Impeachment Clause. But nothing in their debates suggests an expectation that the President would be subjected to the distraction of suits by disappointed private citizens. And Senator Maclay has recorded the views of Senator Ellsworth and Vice President John Adams -- both delegates to the Convention -- that

"the President, personally, was not the subject to any process whatever. . . . For [that] would . . . put it in the power of a common justice to exercise any authority over him and stop the whole machine of Government."

Journal of William Maclay 167 (E. Maclay ed. 1890). Justice Story, writing in 1833, held it implicit in the separation of powers that the President must be permitted to discharge his duties undistracted by private lawsuits. 3 J. Story, Commentaries on the Constitution of the United States § 1563, pp. 418-419 (1st ed. 1833) (quoted supra at 457 U. S. 749). Thomas Jefferson also argued that the President was not intended to be subject to judicial process. When Chief Justice Marshall held in United States v. Burr, 25 F.Cas. 30 (No. 14,692d) (CC Va. 1807), that a subpoena duces tecum can be issued to a President, Jefferson protested strongly, and stated his broader view of the proper relationship between the Judiciary and the President:

"The leading principle of our Constitution is the independence of the Legislature, executive and judiciary of each other, and none are more jealous of this than the judiciary. But would the executive be independent of the judiciary if he were subject to the commands of the latter, & to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south & east to west, and withdraw him entirely from his constitutional duties? The intention of the Constitution, that each branch should be independent of the others, is further manifested by the means it has furnished to each to protect itself from enterprises of force attempted on them by the others, and to none has it given more effectual or diversified means than to the executive."

10 The Works of Thomas Jefferson 404 n. (P. Ford ed.1905) (quoting a letter from President Jefferson to a prosecutor at the Burr trial) (emphasis in the original). See also 5 D. Malone, Jefferson and His Time: Jefferson the President 320-325 (1974).

In light of the fragmentary character of the most important materials reflecting the Framers' intent, we do think that the most compelling arguments arise from the Constitution's separation of powers and the Judiciary's historic understanding of that doctrine. See text supra. But our primary reliance on constitutional structure and judicial precedent should not be misunderstood. The best historical evidence clearly supports the Presidential immunity we have upheld. JUSTICE WHITE's dissent cites some other materials, including ambiguous comments made at state ratifying conventions and the remarks of a single publicist. But historical evidence must be weighed, as well as cited. When the weight of evidence is considered, we think we must place our reliance on the contemporary understanding of John Adams, Thomas Jefferson, and Oliver Ellsworth. Other powerful support derives from the actual history of private lawsuits against the President. Prior to the litigation explosion commencing with this Court's 1971 Bivens decision, fewer than a handful of damages actions ever were filed against the President. None appears to have proceeded to judgment on the merits.

[Footnote 32] Among the most persuasive reasons supporting official immunity is the prospect that damages liability may render an official unduly cautious in the discharge of his official duties. As Judge Learned Hand wrote in Gregoire v. Biddle, 177 F.2d 579, 581 (CA2 1949), cert. denied, 339 U.S. 949 (1950),

"[t]he justification for . . . [denying recovery] is that it is impossible to know whether the claim is well-founded until the case has been tried, and to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute. . . ."

[Footnote 33] These dangers are significant even though there is no historical record of numerous suits against the President, since a right to sue federal officials for damages for constitutional violations was not even recognized until Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971).

[Footnote 34] This tradition can be traced far back into our constitutional history. See, e.g., 71 U. S. Johnson, 4 Wall. 475, 71 U. S. 501(1866) ("[W]e are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties, and that no such bill ought to be received by us"); Kendall v. United States, 12 Pet. 524, 37 U. S. 610 (1838) ("The executive power is vested in a President; and as far as his powers are derived from the constitution, he is beyond the reach of any other department, except in the mode prescribed by the constitution through the impeaching power").

[Footnote 35] See United States v. Reynolds, 345 U. S. 1345 U. S. 6-7 (1953) (Secretary of the Air Force); Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 323-324 (DC 1966), aff'd sub nom. V.E.B. Carl Zeiss, Jena v. Clark, 128 U.S.App.D.C. 10, 384 F.2d 979,cert. denied, 389 U.S. 952 (1967) (Department of Justice officials).

[Footnote 36] Although the President was not a party, the Court enjoined the Secretary of Commerce from executing a direct Presidential order. See 343 U.S. at 343 U. S. 683.

[Footnote 37] The Court has recognized before that there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions. See United States v. Gillock, 445 U. S. 360445 U. S. 371-373 (1980); cf. United State v. Nixon, 418 U.S. at 418 U. S. 711-712, and n.19 (basing holding on special importance of evidence in a criminal trial and distinguishing civil actions as raising different questions not presented for decision). It never has been denied that absolute immunity may impose a regrettable cost on individuals whose rights have been violated. But, contrary to the suggestion of JUSTICE WHITE's dissent, it is not true that our jurisprudence ordinarily supplies a remedy in civil damages for every legal wrong. The dissent's objections on this ground would weigh equally against absolute immunity for any official. Yet the dissent makes no attack on the absolute immunity recognized for judges and prosecutors.

Our implied rights of action cases identify another area of the law in which there is not a damages remedy for every legal wrong. These cases establish that victims of statutory crimes ordinarily may not sue in federal court in the absence of expressed congressional intent to provide a damages remedy. See, e.g., Merrill Lynch, Pierce, Fenner Smith, Inc. v. Curran,456 U. S. 353 (1982); Middlesex County Sewerage Auth. v. National Sea Clammers Assn., 453 U. S. 1 (1981); California v. Sierra Club, 451 U. S. 287 (1981). JUSTICE WHITE does not refer to the jurisprudence of implied rights of action. Moreover, the dissent undertakes no discussion of cases in the Bivens line in which this Court has suggested that there would be no damages relief in circumstances "counseling hesitation" by the judiciary. See Bivens v. Six Unknown Fed. Narcotics Agents, supra, at 403 U. S. 396Carlson v. Green, 446 U. S. 14446 U. S. 19 (1980) (in direct constitutional actions against officials with "independent status in our constitutional scheme . . . judicially created remedies . . . might be inappropriate").

Even the case on which JUSTICE WHITE places principal reliance, Marbury v. Madison, 1 Cranch 137 (1803), provides dubious support, at best. The dissent cites Marbury for the proposition that

"[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury."

Id. at 5 U. S. 163. Yet Marbury does not establish that the individual's protection must come in the form of a particular remedy. Marbury, it should be remembered, lost his case in the Supreme Court. The Court turned him away with the suggestion that he should have gone elsewhere with his claim. In this case, it was clear at least that Fitzgerald was entitled to seek a remedy before the Civil Service Commission -- a remedy of which he availed himself. See supra at 457 U. S. 736-739, and n. 17.

[Footnote 38] The presence of alternative remedies has played an important role in our previous decisions in the area of official immunity. E.g., Imbler v. Pactman, 424 U.S. at 424 U. S. 428-429 ("We emphasize that the immunity of prosecutors from liability in suits under § 1983 does not leave the public powerless to deter misconduct or to punish that which occurs").

[Footnote 39] The same remedy plays a central role with respect to the misconduct of federal judges, who also possess absolute immunity. See Kaufman, Chilling Judicial Independence, 88 Yale L.J. 681, 690-706 (1979). Congressmen may be removed from office by a vote of their colleagues. U.S.Const., Art. I, § 5, cl. 2.

[Footnote 40] Prior to petitioner Nixon's resignation from office, the House Judiciary Committee had convened impeachment hearings.See generally Report of the Committee on the Judiciary of the House of Representatives: Impeachment of Richard M. Nixon, President of the United States, H.R.Rep. No. 93-1305 (1974).

[Footnote 41] The dissenting opinions argue that our decision places the President "above the law." This contention is rhetorically chilling, but wholly unjustified. The remedy of impeachment demonstrates that the President remains accountable under law for his misdeeds in office. This case involves only a damages remedy. Although the President is not liable in civil damages for official misbehavior, that does not lift him "above" the law. The dissents do not suggest that a judge is "above" the law when he enters a judgment for which he cannot be held answerable in civil damages; or a prosecutor is above the law when he files an indictment; or a Congressman is above the law when he engages in legislative speech or debate. It is simply error to characterize an official as "above the law" because a particular remedy is not available against him.