Trump v. U.S. as sword as well as shield

To put today’s decision order declaring Article I illegal [note: offer void during Democratic administrations] into a broader context, this is an excellent piece by Pema Levy about how the Supreme Court’s Republicans have facilitated Trump’s dissolution of any constraints on political prosecutions:

Former New Jersey Gov. Chris Christie, a one-time ally turned critic of President Donald Trump, observed recently that Trump has torn down the traditional barrier between the president’s personal ambitions and the Justice Department’s power to investigate and prosecute criminal wrongdoing. “He absolutely rejects the idea that there should be separation between criminal investigations and the politically elected leader of the United States,” Christie, who is also a former US Attorney, said last month on ABC’s This Week. As if to prove Christie’s point, Trump publicly threatened to prosecute Christie just a few hours later. 

Christie’s observation wasn’t even controversial. The guardrails that until recently kept the president from siccing prosecutors on his political rivals are gone. Trump publicly says as much: Answering questions about last month’s FBI raid targeting John Bolton, his former national security adviser, Trump affirmed, “I could be the one starting it. I’m actually the chief law enforcement officer.” 

Not long ago, that would have been a bold statement. After all, the Justice Department’s own website still assigns that job to the attorney general. But Trump has seized investigative and prosecutorial weapons that, in order to safeguard the rule of law, have traditionally been walled off from the president.

The Supreme Court handed him these loaded weapons. While it was little remarked upon at the time, last summer’s presidential immunity decision from the Republican wing of the Roberts’ Court gave the president the power to launch any investigation or prosecution he wanted, with real or fabricated evidence, without any repercussions. Just a year later, we are seeing the unprecedented weaponization of the DOJ.

Chief Justice John Roberts’ opinion in Trump v. United States announced for the first time—and to the shock of much of the legal world—that the president is immune from criminal prosecution for actions that are part of his core presidential powers, and has presumptive immunity for all other official acts. The immediate result was to delay and ultimately derail the federal prosecution of Trump for attempting to overturn the results of the 2020 election. But legal scholars soon pointed out that the opinion went much further than immunity. It was not just a shield but also a sword, giving the president untouchable power to use the Justice Department to investigate and prosecute whoever he wanted—even in sham proceedings launched for political retribution.

“The most surprising and consequential ruling in Trump is that ‘the president has exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials,’” Harvard’s Jack Goldsmith wrote in February. Just weeks into Trump’s second term, Goldsmith, who ran the department’s powerful Office of Legal Counsel under George W. Bush, was already arguing that the Trump decision’s new and expansive view of presidential power was animating the administration’s aggressive executive orders—and that the ruling would undergird Trump’s battle against the civil service and any remnant of agency independence.

This includes, first and foremost, the DOJ. “The Attorney General, as head of the Justice Department, acts as the President’s ‘chief law enforcement officer,’” Roberts wrote in his majority opinion. The principle is that the attorney general neither serves the people nor the law—they serve the president. The consequences for Trump’s political rivals are already all too clear, with the DOJ having transformed in months from a neutral enforcer of the law to a personal legal office for a vengeful president.

One of the many illogical conclusions Roberts reached in his desperate effort to shield Daddy Trump from any accountability is that in claiming that the procedural safeguards again vexatious prosecutions were insufficient to protect presidents, he did not even consider what would happen to the vexations prosecutions initiated by presidents if they were declared to be permanently unaccountable. As Justice Jackson said in her dissent:

From this day forward, Presidents of tomorrow will be free to exercise the Commander-in-Chief powers, the foreign-affairs powers, and all the vast law enforcement powers enshrined in Article II however they please including in ways that Congress has deemed criminal and that have potentially grave consequences for the rights and liberties of Americans.

Three Electoral College coin-flips landing on the Republican side in 16 years has had an incredibly destructive impact on American democracy.