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Absolute vs. qualified immunity: Examining executive vesting, separation of powers clauses
commentary
July 17, 2024
Absolute vs. qualified immunity: Examining executive vesting, separation of powers clauses
By ? r. James Finck, USAD History Professor,

Starting with the Jefferson administration, the courts have recognized two types of immunity: absolute and qualified. Absolute is just how it sounds, absolute redress regardless of motive or action. Qualified is also how it sounds, it’s a limited protection. For this, the person accused must demonstrate they acted with the belief their actions were legal. While there are several court cases over the years dealing with immunity the one most used by former President and current Republican presidential nominee Donald Trump’s legal team came in 1981. In 1965, Arthur Ernest Fitzgerald, a WWII veteran and University of Alabama engineering graduate, was hired by the Pentagon as an engineer. At the Pentagon, Fitzgerald worked at the Senior Executive Service Office of the Air Force where one of his duties was economic cost analysis. In 1968, during the Lyndon B. Johnson presidency, Fitzgerald was called to testify before a joint congressional subcommittee on the Lockheed C-5A transport airplane. During his testimony, Fitzgerald reported that cost overruns on the plane had reached $2.3 billion. Fourteen months later in 1970, after Richard Nixon had taken office, Fitzgerald was fired as part of reorganization of force and cost-cutting reductions. Fitzgerald, however, disagreed and believed he was let go as retaliation for his whistleblowing testimony. He took his case to court and sued several in the administration – including Nixon. Over the next 10 years Fitzgerald went through a series of political wranglings but by 1981 the U.S. Supreme Court finally took up two separate cases: the first against Nixon, and a second dealing with presidential aides Alexander Butterfield and Bryce Harlow. While the cases had plenty of evidence supporting the claims, including direct quotes from the three accused, the trials rested on the idea of immunity. While the Supreme Court was dominated by Republican-appointed judges (7-2) the 5-4 decision did not completely fall on ideological lines as the court found that the Constitution supported a grant of absolute immunity to the president. They based their decision on two concepts: the Executive Vesting Clause and Separation of Powers. In the Constitution, Article II, Section I, it reads, “The executive Power shall be vested in a President of the United States of America.” That puts a great deal of power in the hands of one person but also sets them up for a great deal of scrutiny. While this decision is several pages long, basically it says that the president’s job puts a target on his back and that if people were allowed to sue the president, he would not be allowed to function effectively. Basically, the president needs protection from his actions, so he is allowed to make quick judgements and fulfill his duties. The other concept was Separation of Powers. The Judicial Branch can only interfere with the Executive Branch when doing so outweighs the danger of interfering and only in the case of “broad public interests.” In other words, the courts can weigh in if the president sets national policy as it did in the 1952 Supreme Court case Youngstown Sheet & Tube Company v. Sawyer when President Harry Truman ordered the takeover of the steel industry during the Korean War. The court deemed Truman did not have such power. However, on things like personal civil suits like with Fitzgerald, the president needs absolute immunity to do his job. As for the two aides, the court in Harlow v. Fitzgerald, ruled 8-1, with a conservative judge dissenting, that government officials are entitled to qualified immunity but not absolute immunity. The presidential aides needed some immunity to function in their duties, but in these cases the courts did have the right to determine if the aides knew or should have known that their actions would violate the plaintiff’s constitutional rights. In arguing for absolute immunity, the courts have said that the president does not have absolute power. For one, impeachment still applies as stated in the Constitution. There is also scrutiny from Congress and the press. The belief is that presidents care about their approval rating and historical reputation as well as hurting themselves or their party in future elections. While these ideas have only been theoretical, with the upcoming election, some of these ideas will be put to the test. James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at HistoricallySpeakingl776@gmail.com.

Braving the festival, honoring a friend
A: Main, news
Braving the festival, honoring a friend
By LENORE BECHTEL 
September 3, 2025
Every Labor Day weekend since moving to Oklahoma, I thought about going to the Dusk to Dawn Blues Festival. But the idea of a yard party running from 5 p.m. to 5 a.m. was intimidating—and I could neve...
A: Main, news
Man injured diving into shallow water
September 3, 2025
A 22-year-old Yukon man was injured when he dove from a pontoon boat into shallow water at Lake Eufaula, according to the Oklahoma Highway Patrol. Patrick Tanner reportedly stopped his vessel to swim ...
A: Main, news
Man found dead in yard; possible suspect investigated
September 3, 2025
WARNER – Warner Police responded to a call early Saturday morning about a dead man laying outside of a residence in the area of Fifth and Third streets. The deceased has been identified as 51-year-old...
A: Main, news
Wellness Day for seniors Sept. 16
September 3, 2025
Heritage Home Care’s fifth annual Senior Wellness Day will be held Tuesday, Sept. 16, from 9 a.m. to 2 p.m. at 126 N. 1st St. (now Bridges Street), which is the former location of Family Dollar. The e...
A: Main, news
Looking ahead: Firm to help guide the way
By JERRY FINK MANAGING EDITOR 
September 3, 2025
What will Eufaula look like in 50 years? Without a plan, it’s anybody’s guess. But the City Council has taken steps to remove at least some of the guesswork. At a special meeting Friday, Aug. 29, the ...
Wine and Art Festival extravaganza Saturday
A: Main, news
Wine and Art Festival extravaganza Saturday
By JERRY FINK MANAGING EDITOR 
September 3, 2025
What: Vision Eufaula Wine & Art Festival When: Saturday Sept. 6, 10 a.m. to 6 p.m. Where: 150 N. Front St. Information: 405-248-2992 or visit visioneufaula.org The fourth annual Wine and Art Festival ...
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5 in race for state school superintendent
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5 in race for state school superintendent
By Jennifer Palmer Oklahoma Watch 
September 3, 2025
So far, five candidates are running to lead Oklahoma’s public education system as state superintendent in 2026. Former Tulsa school board members Jennettie Marshall, a Democrat, and Jerry Griffin, an ...
DOC Director stepping down
news
DOC Director stepping down
By KEATON ROSS OKLAHOMA WATCH 
September 3, 2025
Oklahoma Department of Corrections Director Steven Harpe, one of the highest paid officials in state government, will step down on Sept. 30 to take a private sector job. “I’m extremely proud of my tim...
news
Class of ’65 reunion set for Sept. 12
September 3, 2025
Graduates of the Eufaula High School Class of 1965 will get together from 2 p.m. to 4 p.m. on Friday, Sept 12, at the Legacy on Main Street, 224 N. Main St. Graduates of the classes of ’64 and ’66 are...
A site out of this world
news
A site out of this world
By MIKE BARNES 
September 3, 2025
In Eufaula, a town where gossip can outpace the mail, a story is slowly gaining momentum. It isn’t about the latest fishing tournament or Friday night football, but about a cosmic visitor called 3I/ A...
Rest, reflections, and farewells
commentary
Rest, reflections, and farewells
By JOE DORMAN OICA CEO 
September 3, 2025
OKLAHOMA CITY – I hope your Labor Day weekend was full of relaxation. I schedule a vacation each year with friends to get away over this holiday which allows me to “charge up the batteries” for upcomi...
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