John Roberts Makes His Bid for Infamy
The most important takeaway from the Supreme Court’s decision in Trump v. United States is that John Roberts, with the approval of his Republican colleagues, rewrote the Constitution to place the president above the law.
The chief justice erased the Constitution’s clear contemplation of criminal charges for presidential misconduct. He conjured, out of thin air, a distinction between “official” and “unofficial” acts that can’t survive the slightest scrutiny. He cloaked the executive in a prosecutorial immunity so complete that it shields almost any act a president might take from legal accountability so long as that president could tie it to a “core” duty. He eliminated, in practice, any distinction between a lawful or unlawful exercise of presidential authority. And Roberts did this, he says, to preserve the separation of powers and the integrity of the executive branch.
Presidential impunity for criminal behavior isn’t the issue, Roberts suggests. The real problem, he says, is the “more likely prospect of an executive branch that cannibalizes itself, with each successive president free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.”
Hand-waving away the ugly circumstances of this case — Donald Trump’s attempt to overturn his defeat in the 2020 presidential election — Roberts writes that without immunity, “prosecutions of ex-presidents could quickly become routine. The enfeebling of the presidency and our government that would result from such a cycle of factional strife is exactly what the framers intended to avoid.”
The chief justice wrote those last lines as a rebuke to his liberal colleagues who warned, in their dissents, that the majority had made the American president something like a king. But you can also read those lines as a glimpse into Roberts’s mind-set. The majority’s opinion in Trump v. United States is not so much a legal decision — it is untethered from the text, structure and history of the Constitution, making claims that are, according to the legal scholar Akhil Reed Amar, “flatly contradicted by the document’s unambiguous letter and obvious spirit” — as it is a political one.
It seems that for Roberts, the criminal prosecution of Donald Trump is so transgressive as to demand the immediate intervention of the Supreme Court. But the constitutional order does not support Roberts’s intuition that the president should have immunity for nearly every action taken in office — from Montesquieu to Madison, separation of powers never meant that each branch was immune to the touch of the other or that executive officers were beyond the reach of legal culpability.
