Halperin v. Kissinger: The D.C. Circuit Rejects Presidential Immunity from Damage Actions
![handle is hein.journals/loyolr26 and id is 154 raw text is: 144 Loyola Law Review [Vol. 26:135
longshoreman's injury.
Marguerite L. Adams
HALPERIN V. KISSINGER: THE D.C. CIRCUIT REJECTS
PRESIDENTIAL IMMUNITY FROM DAMAGE ACTIONS
Historically, the United States Supreme Court has been given
few opportunities to consider the issue of presidential immunity
from judicial process.' In United States v. Nixon2 the Court deci-
sively rejected the use of presidential immunity where the presi-
dent is a third party in possession of evidence needed in a criminal
1. The Court has considered this subject on two occasions: Mississippi v.
Johnson, 71 U.S. (4 Wall.) 475 (1867); United States v. Nixon, 418 U.S. 683
(1974). See also United States v. Burr, 25 F. Cas. 30 (C.C.D. Va. 1807)(No. 14,
692d). The term immunity is referred to variously as absolute immunity,
sovereign immunity, presidential immunity, executive immunity, and offi-
cial immunity in the case law and literature on the subject. Although the term
may be applied to both governments and government employees and officials, this
paper's focus is on executive immunity and presidential immunity.
Prosser has commented that the difference between a privilege and an immu-
nity is largely one of degree; while a privilege avoids tort liability under partic-
ular circumstances .... [A]n immunity . . . avoids liability . . . under all cir-
cumstances, within the limits of the immunity itself; it is conferred, not because
of the particular facts, but because of the status or position of the favored defen-
dant; and it does not deny the tort, but the resulting liability. W. PROSSER,
HANDBOOK OF THE LAW OF TORTS 970 (4th ed. 1971) [hereinafter cited as
PROSSER].
Unfortunately, much of the case law on the subject does not distinguish be-
tween executive privilege and executive immunity and fails to distinguish between
immunity from liability and immunity from judicial process. One scholar has
commented on this confusion of terms in noting at least three distinct meanings
of the term executive privilege: (1) The privilege might be invoked as an im-
munity of the President from legal process, Freund, The Supreme Court, 1973
Term-Foreword: On Presidential Privilege, 88 HARv. L. REv. 13, 19 (1974), or as
an exemption from a duty to produce testimony or documents and a legal capac-
ity to control the production of certain kinds of evidence by others. Id. at 20.
Finally, it could constitute a substantive immunity from liability, qualified or
absolute. . . . Absolute immunity, designed to protect certain discretionary func-
tions from even the burden of litigation, is more familiar in the law of torts than
of crimes, perhaps because of the greater public concern and the greater screening
process in the bringing of actions in the latter area. Id. at 20 n.41.
Under article I, section 3 of the United States Constitution, an incumbent
President is immune from criminal prosecution.
2. 418 U.S. 683 (1974).](ViewImageLocal?handle=hein.journals/loyolr26&div=14&collection=&method=preview&ext=.png&size=3)
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Halperin v. Kissinger: The D.C. Circuit Rejects Presidential Immunity from Damage Actions
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