Nickerson v. Fitzgerald Establishes broad presidential immunity from civil lawsuits. clinton v. jones Allow sitting presidents to be prosecuted for conduct that occurred forward During his tenure. But neither case addressed presidential immunity from criminal prosecution.
During the Mueller investigation, I wrote a series of articles arguing that a federal criminal prosecution poses far greater risks to the presidency than a civil suit. Mueller’s defenders disagree. They argued that since anyone Civil lawsuits are possible, while prosecutions, which can only be brought by responsible federal prosecutors, are riskier. I never found this argument persuasive. Now, Trump v. United States This distinction is firmly rejected.
Chief Justice Roberts put the issue clearly:
There is no question that criminal prosecution of the President for his official conduct pose a greater threat Infringing upon the powers and functions of the executive branch rather than merely seeking evidence in its possession, e.g. Burr and Nickerson. The danger is indeed similar bigger what makes us realize The president enjoys absolute immunity from civil liability for damages–The president will be intimidated by taking the “bold and unhesitating action” required by an independent executive branch. fitzgerald. Although the criminal prosecution against the president is likely to be smaller than the civil damages lawsuits that various plaintiffs may bring, The threat of trial, sentencing and imprisonment is a greater deterrent. Potential criminal liability, and the public condemnation that characterizes criminal proceedings, is clearly more likely to distort presidential decision-making than potential civil damages.
Robert is absolutely right (this is not a sentence I write often).
Justice Sotomayor dissented and expressed another view. First, she wrote that “the threat of criminal liability is much smaller.” There are countless potential civil litigants, but only one Department of Justice. “The majority’s naked assertion that the burden of a federal criminal prosecution is more restrictive on the president than the burden of a civil lawsuit does not prove the point, nor is it persuasive,” Sotomayor wrote. I am not sure. Compare the influence of Jack Smith and Robert Mueller to that of Paula Jones and E. Jean Carroll. Not even in the same ballpark.
Second, Judge Sotomayor noted that federal criminal prosecutions have “robust procedural safeguards” that civil litigation lacks. She cited the “rigor and impartiality” standards held by Justice Department attorneys and procedural protections under the Bill of Rights. I’m not sure this argument holds up. Procedural protections exist because the potential penalties are much harsher. A civil lawsuit can result in damages, at most, and perhaps some injunction. Civil lawsuits can also be settled quietly. In contrast, criminal prosecution is public and can result in imprisonment and loss of various rights.
Third, Sotomayor acknowledged that “private civil lawsuits may be filed simply based on ‘strong feelings'”. Historically, prosecutors have exercised “restraint” in not prosecuting former presidents. But the “serious” accusations against Trump are different.
a recurring theme in trump card Dissent is an unwavering belief in the impartiality of federal prosecutions of the president, especially special counsels. In fact, Judge Sotomayor insisted that the special counsel acted on behalf of the United States:
Public interest in prosecutions is transparent: federal prosecutors themselves act on behalf of the United States
This is only true in the most technical sense. In fact, Jack Smith worked for Jack Smith, and there is no evidence that Attorney General Garland actually exercised any control over that prosecutor. During oral arguments in Florida, attorneys for the special counsel declined to answer questions about whether the attorney general was consulted before Trump was indicted. Additionally, there are reports that Smith may even continue prosecuting Trump until Inauguration Day—something no responsible prosecutor would support.
It leaves me (and the Chief Justice) to doubt that Jack Smith represents America faithfully. As Justice Scalia explained in his decision Morrison If a prosecutor focuses on one person, and one person only, he will stop at nothing to get his person. These dynamics are even more troubling when that person is a former president and (possibly) a future president.
Roberts responded:
The prosaic tools the government has left the courts to rely on do not adequately protect against the unique constitutional issues involved in prosecuting a former president. While these tools may be sufficient to protect the constitutional rights of individual criminal defendants, the interests that underlie presidential immunity do not seek to protect The president himself, but the presidential agency.
Roberts used nearly the same line in the book Trump v. Hawaiialthough he dared not quote:
In this process, we must consider not only the statements of a particular chairperson, but also the authority of the chairperson. the presidency itself.
This issue also came up repeatedly during the oral arguments Trump v. Mazars. In this case, Justice Gorsuch said, “We have to create a rule that should have some value going forward and that’s not just about a president, but about the presidency.” Gorsuch on Immunity Similar comments were made in the argument, noting that they were setting “rules for the ages.” Gorsuch was laughed at for saying this, but he was absolutely right. When it comes to separation of powers cases, this isn’t just Trump’s problem.
I have said this over and over again during the four years of Trump’s presidency: Any rules this president adopts will inevitably weaken future presidencies.
I suspect there is legitimate concern lurking in Roberts’ mind that the Trump administration will try to prosecute President Biden for a host of crimes. This passage speaks directly to this risk:
Nearly every president has been criticized for poor enforcement of some aspect of federal law, such as drug, gun, immigration or environmental laws. An enterprising prosecutor in the new administration could assert that the former president violated the broad statute. Without immunity, such prosecutions of former presidents may soon become the norm.
While Roberts sought to shield Trump from criminal prosecution, he also threw a life preserver for former President Joe Biden and all future former presidents.
Still, the Trump Justice Department may seek to prosecute Biden for withholding classified documents. This behavior by the former vice president occurred before he became president. Special counsel Robert Hull’s argument that Biden is an “old man with a bad memory” will run counter to Biden’s own insistence that he possesses the mental acuity to be the leader of the free world. I’m not sure what the statute of limitations is for that crime, but it could be affected while Biden is in office. Given that Biden no longer poses any kind of political threat to Trump, there is no conflict of interest, so I don’t even think a special prosecutor will be needed. I think Biden could pardon himself on the way out.
