Cite as: 520 U. S. 681 (1997)
Breyer, J., concurring in judgment
contours of "official inviolability." But it does suggest that the "inviolability" is timebound ("while . . . in the discharge of the duties of his office"); that it applies in private lawsuits (for it attaches to the President's "person" in "civil cases"); and that it is functional ("necessarily implied from the nature of the [President's] functions").
Since Fitzgerald did not involve a physical constraint, the Court's reliance upon Justice Story's commentary makes clear, in the Court's view, that the commentary does not limit the scope of "inviolability" to an immunity from a physical imprisonment, physical detention, or physical "arrest"—a now abandoned procedure that permitted the arrest of certain civil case defendants (e. g., those threatened by bankruptcy) during a civil proceeding.
I would therefore read Story's commentary to mean what it says, namely, that Article II implicitly grants an "official inviolability" to the President "while he is in the discharge of the duties of his office," and that this inviolability must be broad enough to permit him "to perform" his official duties without "obstruction or impediment." As this Court has previously held, the Constitution may grant this kind of protection implicitly; it need not do so explicitly. See Fitzgerald, supra, at 750, n. 31; United States v. Nixon, 418 U. S. 683, 705-706, n. 16 (1974); cf. McCulloch v. Maryland, 4 Wheat. 316, 406 (1819).
Second, during the first Congress, then-Vice President John Adams and then-Senator Oliver Ellsworth expressed a view of an applicable immunity far broader than any currently asserted. Speaking of a sitting President, they said 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.' " 457 U. S., at 751, n. 31 (quoting Journal of William Maclay 167 (E. Maclay ed. 1890) (Sept. 26 journal entry reporting exchange between Sen. Maclay, Adams, and Ellsworth)). They
715
Page: Index Previous 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 NextLast modified: October 4, 2007