Barrett sought middle ground in Trump immunity case. This time Roberts said no

The Supreme Court ended its term divided into partisan blocs, with the Republican appointees ruling in favor of former President Trump’s claim of immunity while the three Democratic appointees voiced a bitter dissent.

It’s exactly the result many critics of the court might have expected, with politics driving the law. It’s also what Chief Justice John G. Roberts Jr. has tried hard to avoid — at least most of the time.

For much of this year, Roberts and the justices succeeded in defusing partisan splits with narrow or procedural rulings.

By a 9-0 vote, they threw out a Texas lawsuit seeking to block millions of American women from obtaining abortion pills. They denied gun rights to people who are under a domestic violence restraining order in a 8-1 decision.

But the chief justice did not seek to bridge the partisan divide in the case of Trump vs. United States. He passed up the chance for a narrow consensus ruling offered by Justice Amy Coney Barrett that could have won over the court’s liberals.

A former Notre Dame law professor,
Barrett saw no need for a broad ruling on presidential immunity in Trump’s case.

“Properly conceived, the president’s constitutional protection from prosecution is narrow,” she wrote in a concurring opinion. “The Constitution does not insulate presidents from criminal liability for official acts.”

Yes, the president cannot be prosecuted for the exercise of his “core” constitutional powers, she said, agreeing with the conservative majority on that point.

But she said the indictment before the court focused on Trump’s effort overturn his election defeat by, for example, encouraging Republican state legislators to create false slates of electors claiming that Trump, not Biden, won in their state.

This is “private conduct,” Barrett said. “The president has no authority over state legislatures,” and the Constitution offers Trump “no protection from prosecution of acts taken in a private capacity.”

That was just the kind of middle-ground position that Roberts usually seeks. Instead, he dismissed it.

The court must uphold “enduring principles” involving the “separation of powers and the future of our Republic…We cannot afford to fixate exclusively, or even primarily, on present exigencies,” he said, referring to the case before the court.

It wasn’t the first time Barrett split with Roberts this year in a high-profile case involving Trump. One week ago, Barrett disagreed with Roberts and said she would have upheld the obstruction charges against the Trump supporters who broke into the Capitol on Jan. 6 of 2021. She said Roberts did “textual backflips” to ignore what the law said.

Why did Roberts and the four conservatives on his right insist on a broad ruling on presidential immunity?

Unlike Barrett, all five have worked in Washington in Republican administrations and are attuned to how politics drives most investigations that involve presidents and their administrations.
Roberts and Justice Brett M. Kavanaugh worked as White House lawyers for Republican presidents.

Justice Neil M. Gorsuch was in high school when his mother, Anne Gorsuch, was forced to resign as President Reagan’s administrator of the Environmental Protection Agency. House Democrats had voted to hold her in contempt for refusing to turn over documents at the behest of the White House involving hazardous waste dumps.

Justices Clarence Thomas and Samuel A. Alito Jr. came to the court after tough confirmation hearings where they clashed with then-Sen. Joe Biden (D-Del.) More recently, they have been steady targets of Democrats for their undisclosed vacation trips paid for by billionaires. They were the most likely to vote for Trump’s broad claim of immunity.

Many Republicans, not just Trump’s supporters, saw the prosecutions of the former president through a political lens. Never before, they said, had a former president from one party been indicted for crimes by the administration of the party that replaced him.

Moreover, the Trump case took shape in the past year as the former president prepared to run against the Democratic president who ousted him.

In November 2022, Trump announced he would seek the presidency again. Biden said he too would run. Biden’s Attorney Gen. Merrick Garland then appointed Jack Smith, a hard-charging prosecutor, as a special counsel to pursue the investigation of Trump for his actions following the 2020 election.

Last August, Smith indicted Trump for conspiring to overturn his election loss, and he sought a fast-track jury trial for early this year. He also indicted Trump in Florida for mishandling secret and highly classified documents.

Meanwhile in New York, Manhattan District Attorney Alvin Bragg, an elected Democrat, indicted Trump on 34 felony counts for false booking keeping entries intended to hide payments to a porn star. New York’s state Attorney General Letitia James, a Democrat, sought and won a $355 million civil penalty against Trump for allegedly inflating his assets. In Georgia, Fulton County District Attorney Fani Willis, an elected Democrat, indicted Trump and 18 others on state racketeering charges involving the 2020 election.

Democrats and progressive groups cheered the indictments as signs that Trump was finally being held to account in the courts for his misdeeds. They were not prepared for what happened when Trump’s case reached the Supreme Court.

In early December, the special counsel petitioned the justices to take up Trump’s claims immediately. It is of “imperative public importance” the case move promptly toward a trial, he said. Two weeks later, his appeal was turned down without comment.

In February, the U.S. appeals court in Washington said the case may move forward, but the Supreme Court put it on hold and scheduled arguments for the end of April on Trump’s claim of presidential immunity.

Those arguments and this week’s opinion made clear that Roberts and the conservative justices saw the issue through an entirely different prism than the liberals and Democrats.

“No president has ever faced criminal charges—let alone for his conduct in office,” Roberts said. Responding to the fierce dissent by Justice Sonia Sotomayor, he said she was engaged in “fear mongering” which ignores the “more likely prospect of an executive branch that cannibalizes itself, with each successive president free to prosecute his predecessors.” He foresaw “the enfeebling of the presidency” and “a cycle of factional strife.”

Roberts concluded by noting the newly declared immunity for presidents “applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.”

Which poses the greater danger to the nation: a president who can break the law knowing he is forever shielded from prosecution or a presidents under constant threat that they may face prosecution after leaving office by partisan opponents?

Georgetown law professor Irv Gornstein, director of its Supreme Court Institute, said that question explains much about the outcome.

“If you think that tit-for-tat prosecution of ex-presidents poses a greater risk to the presidency and democracy than Trump, you probably think that presumptive immunity for all official acts makes sense,” he said. “But if you think that Trump is the greater threat, as many Americans almost certainly do, you probably think the court cares more about Trump and his reelection prospects than it does about democracy and the rule of law.”

“When a sizable portion of the public has already lost confidence in the court, that is something the court ought to worry about,” he added.

Many critics on the left said the chief justice had made a colossal error of judgment that will overshadow his career.

Quinta Jurecic and Ben Wittes, writing in the Lawfare blog, called it a “decision of surpassing recklessness in dangerous times.”

The “court majority may flatter itself that it’s staying out of politics. But this is a fairy tale the justices are telling themselves—if they are, in fact, telling themselves this pleasant little tale,” the pair said. “In fact, they are handing a powerful immunity to an adjudged felon who may be about to assume the executive power of the United States.”

Harvard law professor Jack Goldsmith, a top Justice Department attorney under President George W. Bush, said in response that it will not be clear for some time whether the court made the right call. But he said the Democratic lawyers made a mistake by relying on the courts to stop Trump.

“It has been a fantasy for many years now to think that courts and prosecutors can purge the nation of a law-defiant populist demagogue,” he said. “Only politics, not law, can do that.”

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