Home / General / John Roberts and the Republicans on the Trump Court massively fail the test even Warren Burger was able to pass

John Roberts and the Republicans on the Trump Court massively fail the test even Warren Burger was able to pass


One of the most entertaining chapters of The Brethren described Chief Justice Warren Burger — a pompous windbag who considered himself a Machiavellian genius but whose manipulations constantly failed, causing him to be disrespected across the ideological spectrum — trying to hold the Court together during US v. Nixon (the Nixon tapes case.) Burger wanted the opinion to be unanimous and under his name, but other chambers kept threatening to take the opinion away because Burger kept trying to write a broader conception of executive privilege than the majority of justices wanted. This tension is evident in the opinion itself, which keeps whipsawing in terms of what exactly executive privilege entails. But Burger was able to keep the Court unanimous because he at least understood that Nixon’s personal claim of privilege was untenable and he was not going to be allowed to remain in office. Roberts, on the other hand, made protecting Donald Trump his top priority.

John Roberts’s opinion for the Court in Trump v. US, joined by all of its Republicans, can be quickly summarized:

Sotomayor’s dissent is worthy of more attention, because it least in the tradition of John Maclean and Benjamin Curtis she didn’t shy away from putting the majority’s political degeneracy on the record, even if it’s no consolation in real time:

Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President, the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.

After succinctly describing Trump’s autogolpe, Sotomayor describes the methodology used by the Court’s Republicans, and law certainly has nothing to do with it:

The Court now confronts a question it has never had to answer in the Nation’s history: Whether a former President enjoys immunity from federal criminal prosecution. The majority thinks he should, and so it invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.

 The majority makes three moves that, in effect, completely insulate Presidents from criminal liability. First, the majority creates absolute immunity for the President’s exercise of “core constitutional powers.”  This holding is unnecessary on the facts of the indictment, and the majority’s attempt to apply it to the facts expands the concept of core powers beyond any recognizable bounds. In any event, it is quickly eclipsed by the second move, which is to create expansive immunity for all “official act[s].”  Whether described as presumptive or absolute, under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless. Finally, the majority declares that evidence concerning acts for which the President is immune can play no role in any criminal prosecution against him. That holding, which will prevent the Government from using a President’s official acts to prove knowledge or intent in prosecuting private offenses, is nonsensical.

 Argument by argument, the majority invents immunity  through brute force. Under scrutiny, its arguments crumble. To start, the majority’s broad “official acts” immunity is inconsistent with text, history, and established understandings of the President’s role. Moreover, it is deeply wrong, even on its own functionalist terms. Next, the majority’s “core” immunity is both unnecessary and misguided. See Part V, infra. Furthermore, the majority’s illogical evidentiary holding is unprecedented. . Finally, this majority’s project will have disastrous consequences for the Presidency and for our democracy.

Sotomayor goes on to point out that there is absolutely no textual or historical support for the majority’s position. And, indeed, the Court took a broader position on presidential immunity than Trump’s own lawyers:

Indeed, Trump’s own lawyers during his second impeachment trial assured Senators that declining to impeach Trump for his conduct related to January 6 would not leave him “in any way above the law.” They insisted that a former President “is like any other citizen and can be tried in a court of law.” Now that Trump is facing criminal charges for those acts, though, the tune has changed. Being treated “like any other citizen” no longer seems so appealing.

In sum, the majority today endorses an expansive vision of Presidential immunity that was never recognized by the Founders, any sitting President, the Executive Branch, or even President Trump’s lawyers, until now. Settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them.

The incredibly cynical and lawless two-step the Republican Party engaged in — Trump shouldn’t be impeached because he can be prosecuted, and he can’t be prosecuted because he could have been impeached — has been enshrined into “constitutional law.” As Paul says, this is enough to make Roberts the 21st century Taney in itself. “Today’s Court,” as Sotomayor says, “has replaced a presumption of equality before the law with a presumption that the President is above the law for all of his official acts,” and that presumption is close to irrebuttable while the conception of “official acts” is almost all-encompassing. And indeed the majority goes further than Trump, whose lawyers claimed that impeachment and conviction would allow prosecution. The Court’s Republicans hold that immunity would still attach even in such a case.

On the absolute “official acts” holding, Sotomayor has some sage advice:

Separate from its official-acts immunity, the majority recognizes absolute immunity for “conduct within [the President’s] exclusive sphere of constitutional authority.” Feel free to skip over those pages of the majority’s  opinion. With broad official-acts immunity covering the field, this ostensibly narrower immunity serves little purpose. In any event, this case simply does not turn on conduct within the President’s “exclusive sphere of constitutional authority,” and the majority’s attempt to apply a core immunity of its own making expands the concept of “core constitutional powers,” beyond any recognizable bounds.

Much of Roberts’s opinion, in other worse, provides an indefensible answer to a question it didn’t need to ask to address this case in the first place.

The implication of the majority’s holding could not be more clear:

Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

 Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.

I will not try to add to Justice Sotomayor’s eloquent conclusion, which starkly explains the new constitutional order the Court created in service to an ideological ally who created the current partisan supermajority before he sought to end democracy in America:

The majority’s single-minded fixation on the President’s need for boldness and dispatch ignores the countervailing need for accountability and restraint. The Framers were not so single-minded. In the Federalist Papers, after “endeavor[ing] to show” that the Executive designed by the Constitution “combines . . . all the requisites to energy,” Alexander Hamilton asked a separate, equally important question: “Does it also combine the requisites to safety, in a republican sense, a due dependence on the people, a due responsibility?” The answer then was yes, based in part upon the President’s vulnerability to “prosecution in the common course of law.” The answer after today is no.

 Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.

 With fear for our democracy, I dissent.

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