Trump v. United States Recognizes That Prosecuting The President Poses More Risks Than Suing The President
Nixon v. Fitzgerald established broad presidential immunity for civil lawsuits. Clinton v. Jones permitted the sitting President to be sued for conduct that occurred before his time in office. But neither case addressed presidential immunity from a criminal prosecution.
During the Mueller investigation, I wrote a series of articles contending that a federal criminal prosecution posed a far greater risk to the presidency than a civil lawsuit. Mueller’s defenders disagreed. They contended that since anyone could file a civil lawsuit, while only a responsible federal prosecutor could bring an indictment, the former posed a greater risk. I never found this argument persuasive. Now, Trump v. United States squarely rejected this distinction.
Chief Justice Roberts stated the issue plainly:
Criminally prosecuting a President for official conduct undoubtedly poses a far greater threat of intrusion on the authority and functions of the Executive Branch than simply seeking evidence in his possession, as in Burr and Nixon. The danger is akin to, indeed greater than, what led us to recognize absolute Presidential immunity from civil damages liability—that the President would be chilled from taking the “bold and unhesitating action” required of an independent Executive. Fitzgerald. Although the President might be exposed to fewer criminal prosecutions than the range of civil damages suits that might be brought by various plaintiffs, the threat of trial, judgment, and imprisonment is a far greater deterrent. Potential criminal liability, and the peculiar public opprobrium that attaches to criminal proceedings, are plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages.
Robert is absolutely correct (not a sentence I write often).
In dissent, Justice Sotomayor articulated the alternate 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. Sotomayor wrote, “The majority’s bare assertion that the burden of exposure to federal criminal prosecution is more
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