For the last many years, the conservative legal establishment has complained that liberal judges were unreasonably extending the language of the Constitution to include all kinds of expanded benefits and rights the Founders never imagined. They called it legislating from the bench. In response, the conservative counter-revolution demanded the Supreme Court be bound by what the Constitution actually said. They called this approach originalism and textualism.
Well, in one fell swoop, the new conservative majority—it might be more accurate to call them the new MAGA majority—betrayed originalism and textualism. They replaced the clear meaning of the Constitution with their own ideas of how we should be governed. In effect, they have ripped the Constitution to shreds and, in the process, reconfigured the balance of power.
Yes, this sounds crazy. And I am guessing most Americans will continue to go to work, go shopping, watch TV, and pay taxes without realizing in the short run how much things have changed. And that is because most Americans haven’t read, and probably won’t read, the most recent Supreme Court decision in Trump v. United States. And I don’t blame them for wanting to avoid the pain.
Chief Justice John Roberts’ opinion is unreal in so many ways—hard to read. It is difficult to twist and turn your brain upside down, to move past the illogical thinking, contradictory claims, and Roberts’ sustained attempts to camouflage his thoroughly radical ideas in the guise of supporting the Constitution.
But beneath the self-assured language, the MAGA Court has ushered in one of the most shocking transformations in all of American history. They have successfully redistributed power from Congress and federal and state prosecutors, from lower court judges and juries, to the executive and to themselves. They made the president a king and made themselves—their MAGA majority—an imperial Court. And they have totally eliminated normal procedure when it comes to how we, the government, and all courts other than the Supreme Court handle criminal indictments of the most powerful man in America. They have interfered with the ability of prosecutors to bring criminal cases and present evidence to juries, and taken power away from juries and judges to make reasonable determinations of guilt and innocence when it comes to the former president. They have put their heavy MAGA hands on the scales of American justice. For the first time in our history, you would be lying if you said, “No man is above the law.”
To best understand what has happened to us, it is important to review what Special Counsel Jack Smith charged in his indictment in United States v Trump:
Count 1: 18 U.S.C. § 371 (Conspiracy to Defraud the United States);
Count 2: 18 U.S.C. § 1512(k) (Conspiracy to Obstruct an Official Proceeding);
Count 3: 18 U.S.C. §§ 1512(c)(2), 2 (Obstruction of and Attempt to Obstruct an Official Proceeding);
Count 4: 18 U.S.C. § 241 (Conspiracy Against Rights).
1. The Defendant, DONALD J. TRUMP, was the forty-fifth President of the United States and a candidate for re-election in 2020. The Defendant lost the 2020 presidential election.
2. Despite having lost, the Defendant was determined to remain in power. So for more than two months following election day on November 3, 2020, the Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and the Defendant knew that they were false. But the Defendant repeated and widely disseminated them anyway—to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.
3. The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures. Indeed, in many cases, the Defendant did pursue these methods of contesting the election results. His efforts to change the outcome in any state through recounts, audits, or legal challenges were uniformly unsuccessful.
4. Shortly after election day, the Defendant also pursued unlawful means of discounting legitimate votes and subverting the election results. In so doing, the Defendant perpetrated three criminal conspiracies:
a. A conspiracy to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government, in violation of 18 U.S.C. § 371;
b. A conspiracy to corruptly obstruct and impede the January 6 congressional proceeding at which the collected results of the presidential election are counted and certified (‘the certification proceeding’), in violation of 18 U.S.C. § 1512(k); and
c. A conspiracy against the right to vote and to have one’s vote counted, in violation of 18 U.S.C. § 241.
Each of these conspiracies—which built on the widespread mistrust the Defendant was creating through pervasive and destabilizing lies about election fraud—targeted a bedrock function of the United States federal government: the nation’s process of collecting, counting, and certifying the results of the presidential election (‘the federal government function’). (Emphasis added.)
Smith offered compelling details of the multiple attempts Trump made to intervene, distort, and try to stop the certification of the votes in multiple states. Why? “To subvert the legitimate election results and change electoral votes.” Trump “pushed officials in certain states to ignore the popular vote” and “disenfranchise millions of voters.”
Now to cut the chase—and I promise to go into all of this in greater detail—here is the official bottom-line response of our Supreme Court:
Let’s try that again:
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. (Emphasis added.)
Here, Chief Justice Roberts puts the focus on “authority” and “official acts” without any consideration of what exactly is being done with that purported authority. Or whether those claimed “official acts” incorporate questionable or illegal behavior. Roberts continues:
(a) 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 …
(1) Article II of the Constitution vests ‘executive Power’ in ‘a President of the United States of America.’ §1, cl. 1. The President has duties of ‘unrivaled gravity and breadth.’ Trump v. Vance, 591 U. S. 786, 800. His authority to act necessarily ‘stem[s] either from an act of Congress or from the Constitution itself.’ Youngstown Sheet &Tube Co. v. Sawyer, 343 U. S. 579, 585. In the latter case, the President’s authority is sometimes ‘conclusive and preclusive.’ Id., at 638 (Jackson, J., concurring). 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. The Court thus concludes that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority. (Emphasis added.)
These are staggering positions taken by the Court:
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. (Emphasis added.)
Neither can the court system judge such a criminal prosecution of a former president under these circumstances. Roberts continues:
Not all of the President’s official acts fall within his “conclusive and preclusive” authority. The reasons that justify the President’s absolute immunity from criminal prosecution for acts within the scope of his exclusive constitutional authority do not extend to conduct in areas where his authority is shared with Congress. To determine the President’s immunity in this context, the Court looks primarily to the Framers’ design of the Presidency within the separation of powers, precedent on Presidential immunity in the civil context, and criminal cases where a President resisted prosecutorial demands for documents …
(i) 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). They vested the President with ‘supervisory and policy responsibilities of utmost discretion and sensitivity.’ Nixon v. Fitzgerald, 457 U. S. 731, 750. Appreciating the ‘unique risks’ that arise when the President’s energies are diverted by proceedings that might render him ‘unduly cautious in the discharge of his official duties,’ the Court has recognized Presidential immunities and privileges ‘rooted in the constitutional tradition of the separation of powers and supported by our history.’ Id., at 749, 751, 752, n. 32. In Fitzgerald, for instance, the Court concluded that a former President is entitled to absolute immunity from ‘damages liability for acts within the ‘outer perimeter’ of his official responsibility.’ Id., at 756. The Court’s ‘dominant concern’ was to avoid ‘diversion of the President’s attention during the decisionmaking process caused by needless worry as to the possibility of damages actions stemming from any particular official decision.’ Clinton v. Jones, 520 U. S. 681, 694, n. 19. (Emphasis added.)
I am no lawyer, but merely a writer who has made films and authored some fiction. I am often searching for new ways to understand, to explain, and my brain often takes some unplanned and unexpected detours to make connections some might find strange. And so it was that I found myself thinking about two films: the first, “Gaslight,” and the second, “Invasion of the Body Snatchers.”
If you haven’t seen “Gaslight,” now is the time. It is a brilliantly acted, terrifying look at the ability to control and convince. Wikipedia explains that it is “a 1944 American psychological thriller film directed by George Cukor, and starring Charles Boyer, Ingrid Bergman, Joseph Cotten and Angela Lansbury in her film debut … it follows a young woman whose husband slowly manipulates her into believing that she is descending into insanity.” And “gaslighting” has become “a colloquialism, defined as manipulating someone into questioning their own perception of reality.”
So much of what Chief Justice Roberts does in Trump v. United States is designed to make us believe that he and the MAGA Court really do believe in the Constitution even as they ignore it and distort its clear meaning—their own right-wing version of gaslighting.
What do I mean? Roberts writes:
To determine the President’s immunity in this context, the Court looks primarily to the Framers’ design of the Presidency within the separation of powers, precedent on Presidential immunity in the civil context, and criminal cases where a President resisted prosecutorial demands for documents …
This is just the beginning of a many-paged argument that employs a variety of word tricks and debating ploys that basically distort the plain truth of the text of the Constitution and then mangles the historical record. For those of you who are originalists and textualists or are interested in what some of our major historians say about our history with immunity versus accountability, you can download and read their amicus brief here.
Roberts argues that the bedrock principle of the separation of powers requires that former presidents be immune from prosecution of a variety of crimes with which any other American could be charged. Then motivated by their clear desire to provide presidential immunity, they unilaterally redistribute powers that have been exercised for centuries—from federal and state prosecutors, from lower courts, from juries, from Congress—to the president, and ultimately to themselves. This, then, is a coup d’état. Moving us from a democratic republic to an imperial presidency and an imperial Court. All because six of them create a new version of the American President.
Yes, we can agree that a President whose pressing and besieged job is of “unrivaled gravity and breadth” often requires, as Hamilton wrote, a “vigorous” and “energetic” executive. Yes, as Nixon v. Fitzgerald notes, the job calls for “supervisory and policy responsibilities of utmost discretion and sensitivity.” But then, somehow, the MAGA Six manage to skip over and discount the indisputable reality that American presidents since the founding have faced grave and broad threats requiring vigor and energy. And even while they unflinchingly exercised discretion and sensitivity in the face of world wars and a global depression, these realities never required them to possess an immunity that placed them above the law of the land—laws they have each sworn an oath to defend. So why, now, you might ask yourself, does this particular former executive need immunity for criminal acts? And why is this particular Supreme Court so willing to so distort American history and the bedrock principles of our Republic?
In fact, the Court’s argument plays havoc with the truth. They claim guidance from the “precedent on Presidential immunity in the civil context” yet misinterpret the findings in Nixon v. Fitzgerald. Fitzgerald often acknowledges the exceptional nature of the civil legal action that is at the center of the case:
Because of the singular importance of the President’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.
And adds:
But our cases also have established that a court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch. See Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977); United States v. Nixon, supra, at 703-13. When judicial action is needed to serve broad public interests — as when the Court acts, not in derogation of the separation of powers, but to maintain their proper balance, cf. Youngstown Sheet & Tube Co. v. Sawyer, supra, or to vindicate the public interest in an ongoing criminal prosecution, see United States v. Nixon, supra — the exercise of jurisdiction has been held warranted. In the case of this merely private suit for damages based on a President’s official acts, we hold it is not. (Emphasis added.)
Yes, the interest to be served and the public interest are critical, and “the exercise of jurisdiction has been held warranted.”
Chief Justice Burger writes:
In defining the scope of an official’s absolute privilege, this Court has recognized that the sphere of protected action must be related closely to the immunity’s justifying purposes. Frequently our decisions have held that an official’s absolute immunity should extend only to acts in performance of particular functions of his office. See Butz v. Economou, 438 U.S., at 508-17; cf. Imbler v. Pachtman, 424 U.S., at 430-31. But the Court also has refused to draw functional lines finer than history and reason would support. In view of the special nature of the President’s constitutional office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the “outer perimeter” of his official responsibility. (Emphasis added.)
Again, the Court refers to the ability of merely private civil suits against the president to hamper his or her ability to do the job. Then Burger lists the guardrails that would prevent abuse of presidential immunity for civil suits:
A rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive. There remains the constitutional remedy of impeachment. In addition, there are formal and informal checks on Presidential action that do not apply with equal force to other executive officials. The President is subjected to constant scrutiny by the press. Vigilant oversight by Congress also may serve to deter Presidential abuses of office, as well as to make credible the threat of impeachment. Other incentives to avoid misconduct may include a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a President’s traditional concern for his historical stature. The existence of alternative remedies and deterrents establishes that absolute immunity will not place the President ‘above the law.’ For the President, as for judges and prosecutors, absolute immunity merely precludes a particular private remedy for alleged misconduct in order to advance compelling public ends. (Emphasis added.)
While using some of the language of Nixon, Roberts significantly ignores the critical distinction between civil action against the president from serious criminal misconduct in the office. Ironically, Trump and the Roberts Court have managed to smash apart the very protections Burger relies upon to assure the nation we are left with “sufficient protection against misconduct on the part of the Chief Executive.” The MAGA Court sharply curtails the ability of Congress to provide oversight, and given the new reality of a divided Congress, the inability to successfully impeach a rogue president is now obvious. Not to mention the ever-more-clear indication that a former president willing to defy the peaceful transition to a new administration and determined instead to spark an insurrection makes a vastly different assessment of his “historical stature” than former executives. I mean, how much “stature” will be afforded to an ex-president already convicted of sexual assault, financial fraud, and willing to threaten and extort state officials to manufacture thousands of votes for himself.
Now, let’s address Roberts’ assertion that their immunity decision rests on the Constitution and “the Framers’ design of the Presidency within the separation of powers.”
As I began writing this on July 4, I saw the following tweet from the former highly conservative former Judge J. Michael Luttig, a man on the other side of the political spectrum from me. He, too, was naturally thinking about the American Revolution:
So, let’s re-examine what drove ordinary citizens, farmers, and tradesmen to risk their lives against the British Army and the king:
They clearly believed that it was self-evident that “all men are created equal,” that liberty is an unalienable right, that “Governments are instituted among Men, deriving their just powers from the consent of the governed,” and when that is no longer the case, “it is the Right of the People to alter or to abolish it, and to institute new Government …” And, finally, they declared that the king “has refused his Assent to Laws, the most wholesome and necessary for the public good.” Yes, for our Founders, abiding by the law was paramount. Not so for the MAGA Six.
With victory, the next step was to institute new government. Here is what our Constitution has to say about the presidency in Article II, Section 1:
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows … Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: – I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States. (Emphasis added.)
And Section 2:
I am pretty sure that when the Founders emphasized that the president “shall take Care that the Laws be faithfully executed,” they weren’t empowering him to break them with impunity and without consequence.
As you can see, when it comes to the separation of powers, there are powers possessed by the president and powers shared by the president. While Article 1, Section 8 provides that Congress shall provide for the common defence and have power “to declare War,” the president, as commander in chief, can wage war and order killing. Meanwhile, the president alone has the power to “grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
Now, despite what the Supreme Court has said about absolute and presumptive immunity, Article 1, Section 3 clearly emphasizes that the president is subject to the laws of the land, and not above the law:
One more time for the chief justice and his majority, following impeachment, the party convicted “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Now, it stretches the imagination that an originalist or textual argument could arrive at an interpretation other than “the Law” taking precedence. Or to put it another way, had the Founders really believed, as the Court asserts, that presidential immunity was/is necessary, that immunity was even more important than accountability, indictment, trial, judgment, and punishment, they would certainly have stressed it here in as clear terms as possible.
Even though the justices are fond of quoting Alexander Hamilton, in Federalist Paper 69, Hamilton elaborates:
The President of the United States would be liable to be impeached, tried, and upon conviction of treason, bribery, or other high crime or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the King of Great-Britain is sacred and inviolable: There is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution. In this delicate and important circumstance or personal responsibility, the President of confederated America would stand upon no better ground than a Governor of New-York and upon worse ground than the Governors of Virginia and Delaware.
Again, unlike the king, the president following impeachment “would afterwards be liable to prosecution and punishment in the ordinary course of law.” This is no big deal, Hamilton implies, because we are no longer a colony of Great Britain, no longer under the rule of the king. Instead, we are now insisting upon “the ordinary course of law.”
It pains me to say that the Roberts Court isn’t done with its dismantling of our Constitution and the undoing of some of the significant work of our Founders. They diabolically place roadblock after roadblock in the way of federal and state prosecutors and lower court judges who aim to secure accountability for the misdeeds and crimes of a former President.
Roberts writes:
(ii) Criminally prosecuting a President for official conduct undoubtedly poses a far greater threat of intrusion on the authority and functions of the Executive Branch than simply seeking evidence in his possession. The danger is greater than what led the Court to recognize absolute Presidential immunity from civil damages liability—that the President would be chilled from taking the “bold and unhesitating action” required of an independent Executive. Fitzgerald, 457 U. S., at 745. Although the President might be exposed to fewer criminal prosecutions than civil damages suits, the threat of trial, judgment, and imprisonment is a far greater deterrent and plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages. The hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions under ‘a pall of potential prosecution,’ McDonnell v. United States, 579 U. S. 550, 575, raises ‘unique risks to the effective functioning of government,’ Fitzgerald, 457 U. S., at 751. But there is also a compelling ‘public interest in fair and effective law enforcement.’ Vance, 591 U.S., at 808.
Taking into account these competing considerations, the Court concludes that the separation of powers principles explicated in the Court’s precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility. 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. At a minimum, the President must be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch. Fitzgerald, 457 U. S., at 754. Pp. 12-15.
Arrogantly and peremptorily, Roberts undoes the distinction of Nixon. Now, not only civil actions are disallowed, but “criminal prosecutions” are deemed even “more likely to distort Presidential decisionmaking,” and provoke “hesitation to execute the duties of his office fearlessly and fairly.”
First, let me emphasize that all of this is pure speculation, invention—abstract and hypothetical—whereas the special counsel’s indictment is filled with actual alleged actions (we heard Trump’s call to Georgia’s secretary of state). We read Trump’s tweets and witnessed his speech at the Ellipse and watched as insurrectionists battered our police and chanted, “Hang Mike Pence.” We watched them break into Congress searching for Nancy Pelosi, and we saw the FBI just manage to save the vice president’s life. And we waited in vain for the president to act and mobilize the National Guard. Talk about presidential “hesitation.” Compare this dereliction of duty to Roberts’ highly exaggerated concern about the “pall of prosecution.”
So what does the MAGA Court do now? Well, they make it almost impossible to even make a convincing case for presidential criminal activity:
(b) The first step in deciding whether a former President is entitled to immunity from a particular prosecution is to distinguish his official from unofficial actions. In this case, no court thus far has drawn that distinction, in general or with respect to the conduct alleged in particular. It is therefore incumbent upon the Court to be mindful that it is ‘a court of final review and not first view.’ Zivotofsky v. Clinton, 566 The Court offers guidance on those issues …
(1) When the President acts pursuant to ‘constitutional and statutory authority,’ he takes official action to perform the functions of his office. Fitzgerald, 456 U. S., at 757. Determining whether an action is covered by immunity thus begins with assessing the President’s authority to take that action. But the breadth of the President’s ‘discretionary responsibilities’ under the Constitution and laws of the United States frequently makes it ‘difficult to determine which of [his] innumerable “functions” encompassed a particular action.’ Id., at 756. The immunity the Court has recognized therefore extends to the ‘outer perimeter’ of the President’s official responsibilities, covering actions so long as they are ‘not manifestly or palpably beyond [his] authority.’ Blassingame v. Trump, 87 F. 4th 1, 13 (CADC).
‘In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such a ‘highly intrusive’ inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose. Fitzgerald, 457 U. S., at 756. Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. Otherwise, Presidents would be subject to trial on ‘every allegation that an action was unlawful,’ depriving immunity of its intended effect.
Such a diabolical and unprecedented intervention: “Courts may not inquire into the President’s motives.” Because “Such a ‘highly intrusive’ inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose.” It is such a disservice to the rigorous work of the special counsel’s office and the countless hours it took the Grand Jury for Roberts to unilaterally dismiss their charges as “mere allegation of improper purpose.” Work the lower courts found persuasive.
How many times have you heard the TV legal pundits talk about mens rea? The Cornell Law School explains:
Mens rea refers to criminal intent. The literal translation from Latin is ‘guilty mind.’ The plural of mens rea is mentes reae. Mens rea is the state of mind statutorily required in order to convict a particular defendant of a particular crime. Establishing the mens rea of an offender, in addition to the actus reus (physical elements of the crime) is usually necessary to prove guilt in a criminal trial. The prosecution typically must prove beyond reasonable doubt that the defendant committed the offense with a culpable state of mind …The mens rea requirement is premised upon the idea that one must possess a guilty state of mind and be aware of his or her misconduct; however, a defendant need not know that their conduct is illegal to be guilty of a crime. Rather, the defendant must be conscious of the ‘facts that make his conduct fit the definition of the offense.’
It is close to unthinkable that the highest court in our land dismisses the critical issue of motive from consideration. I don’t think it is an accident that the most successful resistance to the many abuses carried out by former President Trump has come from grand juries and other juries in locations as varied as Washington, D.C.; New York; Georgia; and Florida—and by judges throughout the country. No wonder this Supreme Court has acted to neuter and disempower them.
As for Trump’s attempted interference in the counting of votes, perhaps the MAGA Court needs to better respect the Constitution, which provides no role for the executive branch and the president or any powers when it comes to how we elect our representatives. That responsibility is left to the states and to Congress:
Special Counsel Jack Smith has, therefore, charged Donald Trump for his attempts to falsely ensure his electoral victory:
According to the special counsel, Donald Trump was joined by a large contingent of co-conspirators within and outside of his administration. Here are some of the charges:
These charges prompted the Supreme Court to widen the former president’s umbrella of “official power” and “conclusive and preclusive” authority to literally cancel the indictments of what I imagine most Americans would regard as improper, and possibly illegal, behavior to deny Biden’s victory. Roberts writes:
A remarkable and utterly shameful piece of writing. Even though the president might employ his power for an improper purpose, it remains his unrestricted power. And he is immune. Or put another way, the Supreme Court here declares that the president’s “exclusive constitutional authority” and his “unrestricted power to remove the most important of his subordinates” empowers him to demand that his subordinates break the law, interfere in an election, and deprive the voting public the right to fairly and freely determine whom shall represent them. And, of course, the Court undermine what sets the American experience apart from authoritarian regimes.
Clearly, this is not about a conservative or originalist interpretation but an unvarnished attempt to eradicate accountability. But Roberts isn’t done with extending the ever-widening ability of immunity to protect the president. You can add the Court’s intervention to stymie Jack Smith’s attempt to hold Trump accountable for pressuring Vice President Mike Pence to violate the law. A refusal by the vice president that could easily have cost his life, a reality that seems to have disappeared from the Court’s accounting.
Roberts writes:
In particular, the indictment alleges several conversations in which Trump pressured the Vice President to reject States’ legitimate electoral votes or send them back to state legislatures for review. Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct. The question then becomes whether that presumption of immunity is rebutted under the circumstances. It is the Government’s burden to rebut the presumption of immunity. The Court therefore remands to the District Court to assess in the first instance whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch. Pp. 21-24.
Some people might be wondering how we got here. Well, we were, and sadly continue to be, distracted by the buffoons, the Marjorie Taylor Greens, Lauren Boeberts, and folks like Matt Gaetz. Especially the grossest among them, Donald John Trump—he who believes he can grab any woman by their genitals, commit sexual assault, lie about his properties, not pay his taxes, create a fraudulent university, threaten public officials with execution.
Remember how we gasped when the silver-spoon-spoiled son escalated down his tower to inform us he wanted to be buffoon in chief. He then called immigrants rapists and murderers: the poor but brave brown parents who had trudged/were trudging thousands of desperate miles from Latin America to see the Statue of Liberty and to save their children from the gangs.
Well, while Steve Bannon plotted and stole money for their phony promised build-the-wall campaign and Alex Jones’ conspiracy mongering made him millions pitching supplements, in the shadows unappreciated by too many of us, the right-wing Christian nationalists were going to the best universities, clerking for powerful conservative judges, and were groomed and favored by the Federalist Society. Eventually they graduated, and step by step, they climbed the judicial ladder, patiently waiting for the right president to nominate them to the highest Court.
When finally fully formed, they were able to lie through their collective teeth, each assuring the Senate that they, too, cherished the Constitution, believed in well-established precedents like Brown v. Board and Roe v. Wade. And, like all reasonable Americans, they too believed in a fair America without a king, where no one is above the law. Then, once confirmed, they quickly body-snatched our Supreme Court, where some, like Thomas and Alito, hit the jackpot and received the biggest bribes.
But don’t take my word for any of this. Others have done an admirable job documenting these concerns. ProPublica and Senator Whitehouse have revealed the details about how a coterie of billionaires have bribed some of them with expensive gifts and well-paid public-speaking engagements. Because who wouldn’t want to invest in a compromised justice?
Ben Meiselas, one of the hosts of MeidasTouch, offers excerpts from their televised confirmation testimony to reveal “how right-wing Supreme Court Justices committed perjury … in connection with issues such as absolute immunity.”
Which brings me to my second film recommendation, the frightening Joseph McCarthy-inspired red-scare 1956 film, “Invasion of the Body Snatchers.” Back to Wikipedia:
The film’s storyline concerns an extraterrestrial invasion that begins in the fictional California town of Santa Mira. Alien plant spores have fallen from space and grown into large seed pods, each one capable of producing a visually identical copy of a human. As each pod reaches full development, it assimilates the physical traits, memories, and personalities of each sleeping person placed near it until only the replacement is left; these duplicates, however, are devoid of all human emotion. Little by little, a local doctor uncovers this ‘quiet’ invasion and attempts to stop it. The slang expression ‘pod people’ that arose in late 20th-century U.S. culture refers to the emotionless duplicates seen in the film.
And though it threatens my own sense of well-being, I can imagine how the pods of the Right-Wing Six were dropped down to the Heritage Foundation graveyard, slowly over time turning into multiple variations of Antonin Scalia.
The victories of the MAGA Court have been impressive. They have dismantled the ability of governmental agencies to protect public health and the environment. They have made it harder to challenge gerrymandering. In support of a mythological Second Amendment, they have made it ever easier for the violently deranged to possess and use weapons of war that masquerade as guns for self-defense. They have helped states force American women who have been raped to carry their rapist’s children. And most recently, they have made it easier for Donald Trump and the next narcissistic, mentally ill president to break our laws without consequence.
And so, while it is difficult to prove that John Roberts is actually trying to drive people crazy, there are certainly lawyers, legal scholars, students of the Constitution, and many people who care about representative democracy and accountability who, since his decision, have been losing significant amounts of sleep. And while the right-wing six-justice majority are less likely to have come from outer space than here at home, they have nonetheless lied about who they are and what they believe. They are shapeshifters who pretended under oath that they cared about the precedent of Roe v. Wade, and they affirmed the bedrock principle that no one is above the law.
When it came time to write their opinion, I am guessing Chief Justice Roberts imagined himself the most reasonable-sounding, least ideological, and most practiced prevaricator of them all. He figured himself the author best able to pretend they weren’t really demolishing the very foundation of the American experience, neutering the guiding principle that no one is above the law or that the American president is surely no king.
Talk about your gaslighting: Page after page, Roberts employs level-headed language, filled with reference after reference to cut-and-pasted fragments of previous cases, all in service of the effort to normalize what a careful close reading reveals as absolutely abnormal. Sounds a lot like law-and-order Antonin Scalia’s abominable attempt to justify the right to own sophisticated weapons of war that ironically outgun our police while ripping to shreds innocent victims, as well as Samuel Alito’s trip back to the darkest crevices of our shameful past to justify removing the ability of American women to choose what to do with their bodies.
I am guessing that they all probably decided a long time ago that this democracy stuff deserved to go by the wayside. Why? First, to reward their benefactors, and second, in service of their right-wing Christin nationalism. These new truths they hold, evident to the select few—and they, of course, are that select few—need to be promoted and protected by a president they know will continue to reward the already powerful and disadvantage the rest of us. Privilege guaranteed by an imperial president is and always overseen by an imperial Court.
