High court finds president's liability in civil suits a tough issue to settle

A deadlocked US Supreme Court this week gave a murky answer to the question of whether a president can be forced to pay damages if he violates a citizen's constitutional rights.

In a June 22 ruling, the high court failed to come up with a majority on an historic case against former President Richard M. Nixon for ordering illegal wiretaps of a national security official. It is said to be the first successful suit calling for a president to pay damages for actions while performing official duties.

The 4-to-4 tie has the effect of affirming a ruling two years ago by the US Court of appeals in the District of Columbia that a president is not "entitled to absolute immunity to a damage action by a citizen subjected to an unconstitutional or illegal wirerap."

The President was not an "omniscient leader cloaked in mystical powers," said the appeals court decision, which now becomes a final ruling.

Justice William H. Rehnquist, who worked in the US Justice Department at the time of the wiretapping and who could have broken the tie, did not participate in the high court decision.

The tie vote leaves almost as many questions as answers about a president's liability to personal damage suits.

Even as the court announced its deadlock, it agreed to hear a new case that may draw sharper lines on the issue. The case, to be heard next fall, involves a $3.5 million suit against Mr. Nixon brought by A. Ernest Fitzgerald, who was fired from the US Defense Department after he blew the whistle on cost overruns for aircraft.

In the case decided this week, lawyers for the US government had asked the Supreme Court to give the President broad immunity. "The risk of personal liability would inhibit the fearless and decisive exercise of presidential authority," said Solicitor General Wade H. McCree in his oral argument.

"We submit that absolute immunity is absolutely necessary to protext the decision- making processes of the president," he said.

Although the notion of "immunity" could be strengthened in the future, it seems certain that the high court action will be costly for Nixon.

The appeals court found that he and three of his top associates, Attorney General John Mitchell, national security adviser Henry Kissinger, and top aide Robert Haldeman, violated the Constitution. The four were involved in wiretapping the home of Morton Halperin, then a national security official.

The Nixon administration had suspected Mr. Halperin of leaking to the New York Times secret information about the bombing of Cambodia during the Vietnam war. The tap placed on Halperin's home phone failed to turn up any evidence of a leak, but the spying was continued for 21 months anyway. Some of the information gained allegedly was used for political purposes.

The tie action opens the door for Halperin to seek damages in excess of $1 million from the four former top officials. Under federal law, the fine for illegal wiretaps is set at $100 a day, and Halperin said that he could seek that amount from each official, including Nixon, for each member of his five-member family.

The two other suits are pending against Nixon for illegal wiretaps.

Halperin, who is now director of the American Civil Liberties Union's Center for National Security Studies, said that he was both "pleased" and "disappointed" with the ruling. He said that he regretted that the court did not make a clear statement on the immunity question. However, he pointed out that his suit established clearly that such wire taps are "i llegal and unconstitutional."