John Roberts has ensured Trump will never be held accountable
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Thanks to Brett Kavanaugh's thoughtless concurrence in Noem v. Vasquez Perdomo, where he claimed it was constitutional to consider skin color a reasonable excuse to arrest anyone, now anyone with brown skin, citizen or not, is being arrested. Some are being held in jail for lengthy periods despite proof of citizenship. Now ordinary people are calling ICE's arrests based solely on skin color as "Kavanaugh Stops." In a later ruling, Kavanaugh has tried to walk back his association to "Kavanaugh Stops" but that association will cling to him until he dies – and might even become part of his obituary.
Clearly this court, dominated by rightwing ideologues vetted by the rightwing Federalist Society specifically to ensure compliance with rightwing talking points and legislative goals – and with several justices open to accepting "gratuities" for good behavior – clearly this Roberts court has decided that a president like Trump can have unchecked powers, despite what the Constitution says.
The most problematic ruling issued out of the Roberts Court (and this could be considered the most problematic ruling in US history, though there are a number of competitors for this distinction, including a number of others issued out of the Roberts Court) remains Roberts' immunity ruling of 2024. In this ruling, John Roberts and his rightwing cohorts decided to abandon the constitutional concept of "checks and balances" in favor of full immunity for all "official acts" done by a president. This ruling was issued in the summer of 2024, well before the election, when Trump was on trial for two cases brought by Garland's DOJ: the theft of classified documents that Trump took when he left the White House in January 2021 and stored carelessly in unsecured places like random Mar A Lago closets and bathrooms; and the case alleging Trump sought to illegally overturn the election he lost.
ALL of us saw on 1/6/21 the violence his mob did to the Capitol. ALL of us know that it was the responsibility of the president to call in the National Guard that day. ALL of us know that Trump refused to call in the National Guard – and the National Guard did not arrive to protect the Capitol until nearly 6 p.m. – hours after his base first violently breached the Capitol. SOME of us understand that Mike Pence activated the Guard, not Trump. That did not stop his press secretary from openly lying on social media:
ALL of us read Trump's social media posts from even before the election that alleged "FRAUD" and exhorted his followers to "take back" the country from the Democrats. And, after inviting his base to DC specifically on the day the election was to be certified by Congress, Trump then spoke to his followers on 1/6/21, telling them:
"Our country has had enough. We will not take it anymore and that's what this is all about. To use a favorite term that all of you people really came up with, we will stop the steal."
And with that, came the violence.
January 6, 2021 was a terrible day in American history. Knowing all that himself, John Roberts made the decision to issue a ruling that provides presidents with total immunity for all "official acts."
Special Prosecutor Jack Smith halted his cases after Trump won the election, because the DOJ has a policy that no president can be charged and tried during his term as president. The classified documents case had earlier been dismissed by lower court judge Aileen Cannon, a Trump appointee whose rulings signaled strong alliance with the man who put her in power to rule on his cases. Smith had appealed that case to SCOTUS, but withdrew the appeal when Trump won the presidency.
Smith had earlier asked SCOTUS for a rapid ruling on Trump's cases, but they slow-walked their ruling and then in the summer of 2024, issued the immunity ruling, a ruling, as Justice Gorsuch noted, would be "for the ages." Since Trump has won the presidency, and has flooded SCOTUS with appeals, we've seen that this very same court can act with rapidity when providing Trump with unchecked powers. It has been frustrating to witness SCOTUS fast-walking Trump's cases after it took such a leisurely approach to Smith's plea for a rapid ruling on the immunity claims brought by Trump.
Last month, Congress called Smith to testify behind closed doors. Republicans are eager to invent and promote the narrative that Trump was a victim of a political witch hunt. But Smith stated on the record that there was enough evidence to convict Trump in both cases - even considering the immunity ruling's restrictions. Overturning an election and storing highly classified documents in a club bathroom are not "official acts" - but it's not clear that SCOTUS would agree.
A Ruling "for the Ages" – a Deeper Look at Roberts' 2024 Immunity Ruling
(Again, these are my observations as a mere citizen of this "noble experiment.")
On July 1, 2024, with months to go before the election of Donald Trump, six months after Jack Smith asked for an expedited ruling on Trump's argument for full immunity, SCOTUS issued the Roberts-written immunity ruling in "Trump v. United States." For whatever reason, the six ideologues on SCOTUS decided that holding presidents accountable for their actions would inhibit presidents from acting at all. Given the history of the United States, and the questionable legality of some of the actions of some of our presidents, it is unclear why they think this. And given that the US president in 2021 tried to overturn the election he lost, it is maddening to see jurists rule as if such behavior needs protections.
As a reminder, the lawyers involved in concocting the fake electors theory - like John Eastman and Rudy Giuliani - have been disbarred or censured for their actions in promoting a fake legal theory to be used to overturn an election legally won by the opposing party. Eastman's disbarment came in March 2024 – prior to arguments before SCOTUS in the immunity case, which happened in late April. That should have been a big hint that Trump's actions to overturn the 2020 election were indefensible, as well as illegal.
And yet, the six ideologues on the Roberts Court decided to protect Trump, not the sanctity of an election. From Roberts' ruling:
"Held: Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts."
Who has been threatening to prosecute random presidents for actions within their constitutional power? NO ONE.
When has a president (other than the one who stole classified documents and incited violence to overturn an election) been threatened with a criminal prosecution? Nixon, yes. He would be shocked to see what passes for legal presidential action these days. Everyone in the Executive Branch lies with impunity now, and poor Richard Nixon was force to resign for lying.
Trump was criminally prosecuted for criminal acts and John Roberts decided that was too much; Trump needed protections and thus, the immunity ruling was concocted and delivered. The rationale Roberts made was that the court was confronted with the first criminal prosecution in US history, and apparently, it was the responsibility of SCOTUS to ensure that the executive branch lost all guard rails in order to work well. It's a remarkably stupid (and unconstitutional) argument, but that's what Roberts laid out. Here are his words:
"This case is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency. Determining whether and under what circumstances such a prosecution may proceed requires careful assessment of the scope of Presidential power under the Constitution. The nature of that power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the president’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is entitled to at least presumptive immunity."
WHY is a president "entitled" to "at least presumptive immunity" when the Constitution makes it clear that no ruler should be above the law? More blather from Roberts (p. 2):
"When the President exercises such authority, Congress cannot act on, and courts cannot examine, the President’s actions. It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions."
What a remarkable departure from the Constitution! The other two branches of government cannot hold a president accountable for "official acts" even if the acts are done after the president leaves office (refusal to return classified documents as required by law) or to overturn a legal election the president lost.
When Roberts says:
"The Framers designed the Presidency to provide for a 'vigorous' and 'energetic' Executive. The Federalist No. 70, pp. 471–472 (J. Cooke ed. 1961) (A. Hamilton)..."
...remember that throughout American history, NO president has been crippled by the lack of immunity. Not one! When he pretends concern for a president's ability to act "vigorously," Roberts is inventing a reason for an anti-constitutional concept - a president with no checks on his power at all.
When Roberts says that the president has the power to investigate election fraud and cannot be questioned about it (p. 5), he's giving the president the power to overturn an election when he loses.
When Roberts invokes the Fitzgerald ruling (p. 2) to claim there is precedent for presidential immunity, please recognize that not holding a president financially accountable for a questionable action is not the same as making them immune from any prosecution of actions that have questionable legality.
When Roberts says "Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution..." (p. 14), once again recognize that NO president has ever before required immunity to act with vigor and energy.
No president, that is, until Trump.
In nearly 250 years, no president has engaged in criminal activity at the level Trump has engaged in illegal, unconstitutional and criminal activity. He is making money off of his role as president, in violation of the emoluments clause - but that is deemed an "official act" now by John Roberts and his rightwing cohorts on SCOTUS. He has illegally sent military troops via ICE into cities - ICE's actions in invading a Chicago apartment building are far beyond any legal defense – they broke down doors and vandalized apartments, and arrested people in the middle of the night with no judicial warrants in sight. NO ONE was later criminally charged from that military intervention. (It seems it may have been a practice run for Trump's unlawful invasion of Venezuela.) Trump has blown up boats that allegedly have been smuggling drugs, killing all on board - even though drug smuggling is not a capital crime in America and the administration has provided NO evidence of any crimes committed by any of the people on board. Instead, the US government is now acting as judge, jury and executioner. Today, we all woke up to the news that Trump had invaded Venezuela, kidnapped the president and his wife, and will be putting them on trial in NYC. The legality of these actions is, at best, dubious.
But the Roberts Court has judged Trump's actions to be immune from any prosecution. And worse, when trying to parse the difference between "official" and "unofficial" acts, Roberts' ruling claims that: "In dividing official from unofficial conduct, courts may not inquire into the President’s motives." So if a president decides that being bribed is a great reason for a foreign policy decision, no courts can examine the motives for that decision.
History will decide if Roberts' immunity ruling is one of the worst in the history of our nation. What's clear is that the ruling has removed protective guardrails from the executive branch, allowing an unethical president to act without any checks or balances at all. What else is clear: the Roberts Court looked at the actions of Trump in stealing classified documents and inciting violence to overturn the election he lost and determined that those are the kinds of actions that need to be protected from any prosecution. It is staggering that "originalists" think that this is what the Founding Fathers wanted for their new nation.
Comments