Although Trump is more circumspect than Fitzgerald in acknowledging the policymaking nature of its decision, it is nonetheless based on a series of policy intuitions or judgments, some of which are borrowed from Fitzgerald and some of which are not. One in the former category is the need to ensure that the president is not “chilled from taking the ‘bold and unhesitating action’ required of an independent Executive.” 603 U.S. at __, slip op. at 13 (quoting Fitzgerald, 457 U.S. at 745). The “hesitation to execute the duties of his office fearlessly and fairly” which “might result” from the specter of potential prosecution “raises ‘unique risks to the effective functioning of government.’” 603 U.S. at __, slip op. at 13 (quoting Fitzgerald, 457 U.S. at 751). Moreover, the Court opined, “[p]otential 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.” 603 U.S. at __, slip op. at 13.
The Court did concede that a president “might be exposed to fewer criminal proceedings than the range of civil damage suits that might be brought by various plaintiffs.” Id. But the Court was unimpressed by the government’s argument that the criminal justice system provides adequate safeguards for the concerns it raised. For example, it dismissed the argument that a court could guard against inappropriate use of evidence of the president’s official acts through evidentiary rulings and jury instructions, saying that such “prosaic tools . . . are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President.” 603 U.S. at __, slip op. at 31.
And what are these “peculiar constitutional concerns”? For one thing, the Court worries that “the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance in office.” Id. This concern, though, seems mismatched to the distinction the Court draws among unofficial/core official/noncore official acts. If the Court fears that the jury will be prejudiced against a former president, it is hard to see why it would matter whether the president is charged with committing an official crime or a purely personal one.
The Court also appears to have a general skepticism of the criminal justice system. The “prosaic tools” of that system “may suffice to protect the constitutional rights of individual criminal defendants,” it says, but are insufficient to protect “the institution of the Presidency.” Id. Similarly, it later rejects “the Government’s assurances that prosecutors and grand juries will not permit political or baseless prosecutions from advancing in the first place,” noting that these are just the assurances “available to every criminal defendant.” Id. at 37. The clear import of these statements is that while the safeguards of the criminal justice system may (or may not) be good enough for ordinary private citizens, they fall short when applied to something the Court really cares about. Continue reading “Immunity, Impeachment and Juristocracy (Part VI: Chilling Doom)”