The Volokh Conspiracy

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Trump v. United States Recognizes That Prosecuting The President Poses More Risks Than Suing The President

Defenders of the Mueller investigation routinely argued that the threat of civil enforcement was worse than a federal prosecution.


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 limiting to a President than the burden of exposure to civil suits does not make it true, and it is not persuasive." I'm not so sure. Compare the impact of Jack Smith and Robert Mueller to the impact of Paula Jones and E. Jean Carroll. Not even in the same ballpark.

Second, Justice Sotomayor pointed to "robust procedural safeguards" that federal criminal prosecution have that civil suits lack. She cites the "scrupulous and impartial" standards that DOJ lawyers follow, in addition to procedural protections under the Bill of Rights. I'm not sure this argument sticks. The procedural protections exist because the potential punishment is far more severe. At most, a civil lawsuit can yield a damages award, and maybe some injunctions. Civil suits can also be quietly settled. By contrast, a criminal prosecution is public, and can result in incarceration and forfeiture of various rights.

Third, Sotomayor acknowledges that "a private civil action may be brought based on little more than "'intense feelings.'" By contrast, "a federal criminal prosecution is made of firmer stuff." Historically, she writes, prosecutors have exercised "restraint" to not prosecute a former President. But the "grave" allegations against Trump were different.

A recurring theme in the Trump dissent is an abiding faith in the fairness of a federal prosecutions against the President–especially by a special counsel. Indeed, Justice Sotomayor insisted that the special prosecutor acts on behalf of the United States:

The public's interest in prosecution is transparent: a federal prosecutor herself acts on behalf of the United States

That is true only in the most technical sense. In reality, Jack Smith works for Jack Smith, and there is no evidence that Attorney General Garland actually exercises any control over this prosecutor. During oral argument in Florida, counsel for the special counsel refused to address whether the Attorney General was even consulted before Trump was indicted. Moreover, Reports suggest that Smith would continue prosecuting Trump even up till inauguration day–something no accountable prosecutor would even countenance.

Color me (and the Chief Justice) skeptical about Jack Smith faithfully representing the United States. As Justice Scalia explained in his Morrison dissent, a prosecutor focused on one person, and one person alone, will stop at nothing to get his man. These dynamics are all the more troubling when the guy is the former, and (likely) future President.

Roberts responds:

The prosaic tools on which the Government would have courts rely are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President. Although such tools may suffice to protect the constitutional rights of individual criminal defendants, the interests that underlie Presidential immunity seek to protect not the President himself, but the institution of the Presidency.

Roberts used a nearly identical line in Trump v. Hawaii, though he did not dare cite it:

In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself.

This issue also recurred during oral argument in Trump v. Mazars. In that case, Justice Gorsuch "we have to write a rule that's presumptively of some value going forward and isn't just about one President but it's about the presidency." Gorsuch made a similar comment in the immunity argument, noting they were writing a "rule for the ages." Gorsuch was mocked for this statement, but he is exactly right. With a separation of powers cases, it's not just about Trump.

Throughout the four years of the Trump presidency, I repeated this refrain over and over again: whatever rules are adopted for this President would invariably weaken the presidency in the future.

I suspect lurking in Roberts's mind is a reasonable concern that a Trump administration will try to indict President Biden on a whole range of offenses. This passage speaks to that risk directly:

Virtually every President is criticized for insufficiently enforcing some aspect of federal law (such as drug, gun, immigration, or environmental laws). An enterprising prosecutor in a new administration may assert that a previous President violated that broad statute. Without immunity, such types of prosecutions of ex-Presidents could quickly become routine.

As much as Roberts was trying to insulate Trump from criminal prosecution, he was also throwing a life-preserve to former-President Biden, and all future former-presidents.

Still, even so, the Trump DOJ may seek to indict Biden for his retention of classified documents. This conduct by the former Vice President occurred before he was President. Special Counsel Robert Hur's argument that Biden is an "elderly man with a poor memory" will be belied with Biden's own insistence that he has the mental acuity to be the leader of the free world. I'm not sure what the statute of limitations is on that offense, but it would probably be tolled while Biden is in office. And given that Biden would no longer pose any sort of political threat to Trump, there is no conflict of interest, so I don't even think a special counsel would be called for. I suppose Biden could pardon himself on the way out the door.