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 HistoricallySpeak-ing1776@ gmail.com.