section_path: Judicial powers
section_name: Judicial powers
paragraph_text: Judicial powers
  
  The president has the power to nominate federal judges, including members of the United States courts of appeals and the Supreme Court of the United States. However, these nominations require 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 U.S. district courts, presidents often respect the long-standing tradition of senatorial courtesy. Presidents may also grant pardons and 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 controversial.
  
  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 John Jay 's notes from an unpopular treaty negotiation with Great Britain. While not enshrined in the Constitution or any other law, Washington's action created the precedent for the privilege. When 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, 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 Lewinsky scandal, the Supreme Court ruled in Clinton v. Jones, that the privilege also could not be used in civil suits. These cases established the 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.
  
  The state secrets privilege allows the president and the executive branch to withhold information or documents from 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, when the Supreme Court dismissed a case brought by a former Union spy. However, the privilege was not formally recognized by the U.S. Supreme Court until United States v. Reynolds, where it was held to be a common law evidentiary privilege. Before the September 11 attacks, use of the privilege had been rare, but increasing in frequency. 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 Ninth Circuit 's ruling in Mohamed v. Jeppesen Dataplan, Inc. Critics of the privilege claim its use has become a tool for the government to cover up illegal or embarrassing government actions.
  
  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.
  
  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.
  
  In defense against federal criminal prosecution for his 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.
  
  In 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. The ruling was the first time the courts granted a president criminal immunity.