Editing President of the United States (section)

=== Juridical powers and privileges ===
{{Further|List of people pardoned or granted clemency by the president of the United States}}
{{Update|section|reason=The case [[Trump v. United States (2024)]]|date=July 2024}} 
[[File: P20220408AS-1467 (52067437977).jpg|thumb|President [[Joe Biden]] with his [[Supreme Court of the United States|Supreme Court]] appointee Justice [[Ketanji Brown Jackson]] and (in background) Vice President [[Kamala Harris]] following Brown Jackson's 2022 [[United States Senate]] confirmation]]

The president has the power to nominate [[United States federal judge|federal judges]], including members of the [[United States courts of appeals]] and the [[Supreme Court of the United States]]. However, these nominations require [[Advice and consent#United States|Senate confirmation]] before they may take office. Securing Senate approval can provide a major obstacle for presidents who wish to orient the federal judiciary toward a particular ideological stance. When nominating judges to [[United States district court|U.S. district courts]], presidents often respect the long-standing tradition of [[senatorial courtesy]]. Presidents may also grant [[pardon]]s and [[Pardon#Related concepts|reprieves]]. [[Gerald Ford]] pardoned [[Richard Nixon]] a month after taking office. Presidents often grant pardons shortly before leaving office, like when [[Bill Clinton]] pardoned [[Patty Hearst]] on his last day in office; this is often [[Controversy|controversial]].<ref name="tws8nov12">{{Cite news |last=Johnston |first=David |url=https://www.nytimes.com/learning/general/onthisday/big/1224.html |title=Bush Pardons Six in Iran Affair, Aborting a Weinberger Trial; Prosecutor Assails 'Cover-Up' |date=December 24, 1992 |work=The New York Times |access-date=November 8, 2009 |quote=But not since President Gerald R. Ford granted clemency to former President Richard M. Nixon for possible crimes in Watergate has a Presidential pardon so pointedly raised the issue of whether the president was trying to shield officials for political purposes.}}</ref><ref name="tws8nov11">{{Cite news |last=Johnston |first=David |url=https://www.nytimes.com/learning/general/onthisday/big/1224.html |title=Bush Pardons Six in Iran Affair, Aborting a Weinberger Trial; Prosecutor Assails 'Cover-Up' |date=December 24, 1992 |work=The New York Times |access-date=November 8, 2009 |quote=The prosecutor charged that Mr. Weinberger's efforts to hide his notes may have 'forestalled impeachment proceedings against President Reagan' and formed part of a pattern of 'deception and obstruction'.{{nbsp}}... In light of President Bush's own misconduct, we are gravely concerned about his decision to pardon others who lied to Congress and obstructed official investigations.}}</ref><ref name="tws8nov10">{{Cite news |last=Eisler |first=Peter |url=https://www.usatoday.com/news/washington/2008-03-06-clinton-library-foia_N.htm |title=Clinton-papers release blocked |date=March 7, 2008 |work=USA Today |access-date=November 8, 2009 |quote=Former president Clinton issued 140 pardons on his last day in office, including several to controversial figures, such as commodities trader Rich, then a fugitive on tax evasion charges. Rich's ex-wife, Denise, contributed $2,000 in 1999 to Hillary Clinton's Senate campaign; $5,000 to a related political action committee; and $450,000 to a fund set up to build the Clinton library.}}</ref>

Two doctrines concerning executive power have developed that enable the president to exercise executive power with a degree of autonomy. The first is [[executive privilege]], which allows the president to withhold from disclosure any communications made directly to the president in the performance of executive duties. George Washington first claimed the privilege when Congress requested to see [[Chief Justice of the United States|Chief Justice]] [[John Jay]]'s notes from an unpopular treaty negotiation with [[Kingdom of Great Britain|Great Britain]]. While not enshrined in the Constitution or any other law, Washington's action created the precedent for the privilege. When [[Richard Nixon|Nixon]] tried to use executive privilege as a reason for not turning over subpoenaed evidence to Congress during the [[Watergate scandal]], the Supreme Court ruled in ''[[United States v. Nixon]]'', {{ussc|418|683|1974}}, that executive privilege did not apply in cases where a president was attempting to avoid criminal prosecution. When Bill Clinton attempted to use executive privilege regarding the [[Clinton–Lewinsky scandal|Lewinsky scandal]], the Supreme Court ruled in ''[[Clinton v. Jones]]'', {{ussc|520|681|1997}}, that the privilege also could not be used in civil suits. These cases established the [[Precedent|legal precedent]] that executive privilege is valid, although the exact extent of the privilege has yet to be clearly defined. Additionally, federal courts have allowed this privilege to radiate outward and protect other executive branch employees but have weakened that protection for those executive branch communications that do not involve the president.<ref>{{Cite web |url=http://www.americanprogress.org/issues/2010/06/executive_privilege.html |title=Executive Privilege 101 |last=Millhiser, Ian |date=June 1, 2010 |publisher=Center for American Progress |access-date=October 8, 2010 |archive-date=June 9, 2010 |archive-url=https://web.archive.org/web/20100609224239/http://www.americanprogress.org/issues/2010/06/executive_privilege.html |url-status=dead }}</ref>

The [[state secrets privilege]] allows the president and the executive branch to withhold information or documents from [[Discovery (law)|discovery]] in legal proceedings if such release would harm [[national security]]. Precedent for the privilege arose early in the 19th century when [[Thomas Jefferson]] refused to release military documents in the [[treason]] trial of [[Aaron Burr]] and again in ''[[Totten v. United States]]'' {{ussc|92|105|1876}}, when the Supreme Court dismissed a case brought by a former Union spy.<ref>{{cite case |url=https://caselaw.findlaw.com/us-9th-circuit/1537579.html |title=Mohamed v. Jeppesen Dataplan |chapter=Part III |via=FindLaw |access-date=November 29, 2010}}</ref> However, the privilege was not formally recognized by the U.S. Supreme Court until ''[[United States v. Reynolds]]'' {{ussc|345|1|1953}}, where it was held to be a [[common law]] [[Evidence (law)|evidentiary]] privilege.<ref name="ACS">{{Cite web |url=https://www.acslaw.org/issue_brief/briefs-2007-2011/reforming-the-state-secrets-privilege/ |title=Reforming the State Secrets Privilege |last1=Frost |first1=Amanda |last2=Florence |first2=Justin |year=2009 |publisher=[[American Constitution Society]] |access-date=November 9, 2017}}</ref> Before the [[September 11 attacks]], use of the privilege had been rare, but increasing in frequency.<ref>{{Cite journal |last1=Weaver |first1=William G. |last2=Pallitto |first2=Robert M. |year=2005 |title=State Secrets and Executive Power |journal=[[Political Science Quarterly]] |volume=120 |issue=1 |pages=85–112 |doi=10.1002/j.1538-165x.2005.tb00539.x |quote=Use of the state secrets privilege in courts has grown significantly over the last twenty-five years. In the twenty-three years between the decision in Reynolds [1953] and the election of Jimmy Carter, in 1976, there were four reported cases in which the government invoked the privilege. Between 1977 and 2001, there were a total of fifty-one reported cases in which courts ruled on invocation of the privilege. Because reported cases represent only a fraction of the total cases in which the privilege is invoked or implicated, it is unclear precisely how dramatically the use of the privilege has grown. But the increase in reported cases is indicative of greater willingness to assert the privilege than in the past.}}</ref> Since 2001, the government has asserted the privilege in more cases and at earlier stages of the litigation, thus in some instances causing dismissal of the suits before reaching the merits of the claims, as in the [[United States Court of Appeals for the Ninth Circuit|Ninth Circuit]]'s ruling in ''[[Mohamed v. Jeppesen Dataplan, Inc.]]''<ref name="ACS" /><ref>{{Cite news |last=Savage |first=Charlie |url=https://www.nytimes.com/2010/09/09/us/09secrets.html |title=Court Dismisses a Case Asserting Torture by C.I.A. |date=September 8, 2010 |work=[[The New York Times]] |access-date=October 8, 2010}}</ref><ref>{{Cite news |last=Finn |first=Peter |url=https://www.washingtonpost.com/wp-dyn/content/article/2010/09/08/AR2010090807334.html |title=Suit dismissed against firm in CIA rendition case |date=September 9, 2010 |newspaper=[[The Washington Post]] |access-date=October 8, 2010}}</ref> Critics of the privilege claim its use has become a tool for the government to cover up illegal or embarrassing government actions.<ref>{{Cite web |url=http://www.salon.com/news/opinion/glenn_greenwald/2009/02/10/obama |title=The 180-degree reversal of Obama's State Secrets position |last=Glenn Greenwald |author-link=Glenn Greenwald |date=February 10, 2009 |website=Salon |access-date=October 8, 2010}}</ref><ref>{{Cite web |url=https://www.aclu.org/national-security/background-state-secrets-privilege |title=Background on the State Secrets Privilege |date=January 31, 2007 |publisher=[[American Civil Liberties Union]] |access-date=October 8, 2010}}</ref>

The degree to which the president personally has [[absolute immunity]] from court cases is contested and has been the subject of several Supreme Court decisions. ''[[Nixon v. Fitzgerald]]'' (1982) dismissed a civil lawsuit against by-then former president Richard Nixon based on his official actions. ''[[Clinton v. Jones]]'' (1997) decided that a president has no immunity against civil suits for actions taken before becoming president and ruled that a sexual harassment suit could proceed without delay, even against a sitting president. The 2019 [[Mueller report]] on Russian interference in the 2016 presidential election detailed evidence of possible [[obstruction of justice]], but investigators declined to refer [[Donald Trump]] for prosecution based on a [[United States Department of Justice]] policy against indicting an incumbent president. The report noted that impeachment by Congress was available as a remedy. As of October 2019, a case was pending in the federal courts regarding access to personal tax returns in a criminal case brought against Donald Trump by the [[New York County District Attorney]] alleging violations of New York state law.<ref>{{Cite news|url=https://www.npr.org/2019/10/07/767830713/federal-judge-rules-trump-must-hand-over-8-years-of-tax-returns|title=President Trump Doesn't Need To Release His Tax Returns — For Now|website=[[NPR]]|date=October 7, 2019|access-date=April 28, 2020|last1=Brown|first1=Tanya Ballard}}</ref>

Memoranda from the [[Office of Legal Counsel]] issued in 1973 and 2000 internally prohibit the [[Department of Justice]] from prosecuting a president, which some legal scholars have criticized but others have endorsed.<ref>{{cite journal |last1=Prakash |first1=Saikrishna Bangalore |title=Prosecuting and Punishing Our Presidents. |journal=[[Texas Law Review]] |date=November 2021 |volume=100 |issue=1 |pages=55–113 |url=https://texaslawreview.org/prosecuting-and-punishing-our-presidents/ |access-date=31 March 2023 |ssrn=4039230 |id={{EBSCOhost|154035452|dbcode=a9h}}}}</ref>

In defense against federal criminal prosecution for his [[Federal prosecution of Donald Trump (election obstruction case)|alleged 2020 election subversion]], in January 2024, Trump argued to the [[DC Circuit Court of Appeals]] that a president enjoys absolute immunity for criminal acts conducted while in office. The next month, a three-judge panel of the court unanimously ruled against Trump. It was the first time an appeals court had addressed such a presidential immunity matter, since no other sitting or former president had ever been criminally indicted.<ref>{{cite news |title=Federal Appeals Court Rejects Trump's Claim of Absolute Immunity |url=https://www.nytimes.com/2024/02/06/us/politics/trump-immunity-appeals-court.html |work=The New York Times |date=February 6, 2024|author1=Alan Feuer|author2=Charlie Savage}}</ref>

In ''[[Trump v. United States (2024)|Trump v. United States]]'', on July 1, 2024, the Supreme Court ruled that presidents were entitled to absolute immunity from exercising core powers enumerated by the Constitution, [[presumption]] of immunity for other official acts, and no immunity for unofficial actions. The case was sent back to lower courts to determine which actions in the criminal complaint should be classified as official vs. unofficial.<ref>{{cite news|url=https://www.theguardian.com/us-news/article/2024/jul/02/presidential-immunity-trump-lawsuits|title=What does the immunity ruling mean for Trump's criminal cases?|work= The Guardian}}</ref> The ruling was the first time the courts granted a president criminal immunity.