Riding the storm, directing the whirlwind

 

Two hundred and forty-eight years ago, a group of American patriots gathered to ratify a document written by revolutionary firebrand and intellectual Thomas Jefferson that, more than anything, made abundantly clear their disgust with unaccountable kings deriving their power from the Almighty. And three days before those patriots’ descendants celebrated the Declaration of Independence this month, the Supreme Court of the United States in a burst of judicial activism restored the very monarchial malignancy our forefathers fought against in the American Revolution. It recast the American presidency in a way that 18th century Tories and turncoats might have celebrated.

In a ruling that will forever define the legacy of the Roberts court, Chief Justice John Roberts wrote a long, tortuous opinion in Trump v. United States that violates the fundamental, all-American principle that presidents be as accountable under the law as the rest of us. It instead allows immunity loopholes for all sorts of corruption and criminality by a president if he or she can pass off such malfeasance as "official acts." One can actually feel Roberts’ discomfort in the blunderbuss of words he employs to hide the fact he’s defending a deceitful, narcissistic scoundrel who sought to overturn the will of the American people and upend the peaceful transfer of power that had been an American hallmark for 220 years.

In doing so, Roberts at long last ensures himself of the same ignominy that posterity bestows on hoary Chief Justice Roger Taney in the 1857 Dred Scott v. Sandford decision.

Roberts' reading of The Federalist Papers is clearly selective. He gallops right past Federalist No. 69 by Alexander Hamilton who in 1788 sought to outline for Americans the benefits of a president over a king: "The president of the United States would be liable to be impeached, tried and, upon conviction of treason, bribery or other high crimes 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."

Obviously, the 69-year-old chief justice has had a change of heart since his testimony before the Senate Judiciary Committee in 2005 when he declared: “I believe no one is above the law under our system and that includes the president. The president is fully bound by the law, the Constitution and statutes.” Two decades later, overseeing a bitterly divided court hobbled by corruption, incompetence and incoherence, Roberts now signals in a ruling brimming with contradictions that, well, yes, the president has significant immunity from prosecution for official acts, whatever those acts might be. And that’s the problem with presidents claiming all sorts of powers beyond those set out by Article II of the Constitution.

Yes, one appreciates arguments for a strong, decisive chief executive, especially given that Congress is increasingly dysfunctional – more prone to showmanship and grandstanding than consensus-building and legislating policy. But the very act of emboldening the American presidency demands that those chief executives who exceed their “core constitutional powers” for self-gain be held accountable. That includes Donald Trump who, as sitting president, clearly conspired to subvert the will of the majority in a national election. Yet Roberts writes not only as if this conspiracy never happened, he seeks to hinder and confound and obstruct a federal trial weighing all the evidence and testimony, pro and con.

For graying Americans, the Roberts ruling showcases how effectively Make America Great Again rhetoric and its fanciful reweaving of foundational history has remolded the hearts and minds of some of us to be willing subjects, not discerning citizens. To quote journalist and historian Garrett M. Graff: “I wrote a history of Watergate that was a finalist for the Pulitzer Prize last year. And let me tell you: When Nixon said, ‘If the president does it, it’s not illegal,’ no one believed that was true. All of American history argues the opposite. And yet that’s exactly what the Supreme Court agreed today. The entire test of Watergate was no one is above the law. Today, the Supreme Court made one man above the law.”

In her powerful dissent, Justice Sonia Sotomayor makes this point: "After the Watergate tapes revealed President Nixon’s misuse of official power to obstruct the Federal Bureau of Investigation’s investigation of the Watergate burglary, President Ford pardoned Nixon. Both Ford’s pardon and Nixon’s acceptance of the pardon necessarily 'rested on the understanding that the former president faced potential criminal liability.'" Sotomayor adds: “Trump’s own lawyers during his second impeachment trial [for incitement of an insurrection in 2021] assured senators that declining to impeach Trump for his conduct related to January 6 would not leave him ‘in any way above the law.’” So much for that supposed point of law.

The lack of outrage by everyday Americans – and during the Fourth of July weekend – offers disturbing evidence of how tenuous our collective grasp of foundational American principles is. After a windstorm toppled a large red oak in a neighbor’s yard this spring, he voiced astonishment the tree’s roots didn’t run deeper, given the many years the tree dominated the front yard. The failure of so many Americans – perhaps defeated by the court’s serpentine legal reasoning, perhaps allergic to daunting news reports on complicated topics, perhaps just eager to go out and revel in carefree displays of patriotism – reminds me of that oak’s fate as the nation lazily contemplates another tradition-trashing Trump presidency.

The ruling also reinforces that bright line between what I call “classic conservatives” – those embracing classical principles of limited government and rule of law – and Trump supporters who call themselves conservative but unashamedly shed their principles whenever convenient, particularly in deference to charismatic, divinely dispatched strongmen who cater to their fears and feed their anger and into whose arms they unwittingly surrender much. And it highlights the fact that, in so many infamous authoritarian eruptions, the judiciary is often quick to falter in upholding the law. The collective capitulation shown by so-called “conservative” Supreme Court members suggests we’re witnessing that here and now.      

Many of us who listened to oral arguments before the court by the Department of Justice and Trump’s attorney in April marveled at how right-wing justices shifted and squirmed to avoid discussing the actual case at hand, retreating instead into hypotheticals. Yet those justices who ultimately dissented elicited the most frightening possibilities in this legal game. Justice Sotomayor asked Trump’s attorney: "If the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him, is that within his official acts for which he can get immunity?" Trump’s lawyer: "It would depend on the hypothetical but that could well be an official act."

Really? And that’s constitutionally protected now? In America?

On the very eve of this 6-3 ruling, Trump paused his many posts claiming victimhood by a “weaponized” Department of Justice to instead repost to his online followers a post accusing former Congresswoman Liz Cheney of treason and calling for “televised military tribunals.” He boosted another calling for the imprisonment of President Biden, Vice President Harris, former Vice President Pence and others. Would the high court regard such vengeful acts, were they to occur in a second Trump presidency, protected from prosecution because they qualify as official presidential acts? Or is only a two-month coup to hijack our government masterminded by a losing reality-TV president protected from legal consequence?

Trump celebrated the ruling on Truth Social: "Without Presidential Immunity, a President of the United States literally could not function! It should be a STRONG IMMUNITY, where proper decisions can be made, where our Country can be POWERFUL and THRIVE and where Opponents cannot hold up and extort a Future President for Political Gain. It is a BIG decision, an important decision, a decision which can affect the Success or Failure of our Country for decades to come. We want a GREAT Country, not a weak, withering and ineffective one." His campaign marketed T-shirts: "Trump 2024: Don't Tread on MAGA,” complete with timber rattler – ironically playing off the Revolutionary-era flag defying kings.

Heritage Foundation President Kevin Roberts, former guiding light of the off-the-rails Texas Public Policy Foundation, praised the court decision on presidential immunity as “vital” – hardly a surprise as he likely views it as more easily facilitating his goal of “institutionalizing Trumpism,” including radical measures in Project 2025 such as replacing much of the federal workforce with Trump loyalists, however competent. In an interview, he quite naturally cited Federalist No. 70, published March 15, 1788, in which Hamilton argued for a vigorous chief executive – also predictably quoted by the chief justice. Yet this essay surely didn’t negate Hamilton’s thoughts on presidents and the law in Federalist No. 69, published a day earlier.

For the record, Hamilton proved shrewdly perceptive. When Thomas Jefferson and Aaron Burr tied in the hard-fought presidential election of 1800, Hamilton surprised some by helping tilt the election outcome to Jefferson, even though Jefferson and Hamilton were fierce political rivals. So far as Hamilton was concerned, Jefferson at least had principles; Burr had none: “Mr. Jefferson, though too revolutionary in his notions, is yet a lover of liberty and will be desirous of something like orderly government. Mr. Burr loves nothing but himself – thinks of nothing but his own aggrandizement – and will be content with nothing short of permanent power in his own hands.”

Burr’s post-election intrigue allegedly involving shadowy efforts to prompt the secession of western lands and invade Mexico left him on trial for treason in 1807. He was acquitted but his reputation never recovered. By then Burr had also killed Hamilton in America’s most famous duel. Chief Justice Roberts actually cites United States v. Burr in his own Trump v. United States ruling, but in his bid to crown Trump with presidential immunity he contorts the broader views of Chief Justice John Marshall, who presided over the Burr trial. Whatever else on finer points in this complicated case, Marshall famously reasoned that “the law does not discriminate between the president and a private citizen.”

This much is clear: Alexander Hamilton anticipated Donald Trump 223 years before, judging from this 1792 epistle: “When a man unprincipled in private life, desperate in his fortune, bold in his temper . . . despotic in his ordinary demeanor – known to have scoffed in private at the principles of liberty – when such a man is seen to mount the hobby horse of popularity – to join in the cry of danger to liberty – to take every opportunity of embarrassing the general government and bringing it under suspicion – to flatter and fall in with all the nonsense of the zealots of the day – it may justly be suspected that his object is to throw things into confusion that he may 'ride the storm and direct the whirlwind.’”

In his smug interview on Steve Bannon’s “War Room” podcast, Heritage executive Kevin Roberts skates past such historical distinctions. He delights in the “radical left” going apoplectic “because our side is winning.” He claims the nation is undergoing “the process of the Second American Revolution, which will remain bloodless if the left allows it to be.” This raises a question given this historian and election denier’s suggestion that whoever resists this “revolution” – including presumably we moderates and anti-Trump conservatives – will be dealt with. Are we permitted to at least resist with, say, the ferocity and dedication displayed by self-righteous, delusional, far-right “heroes” of the Sixth of January?  

Equally disturbing is the court majority’s dictate – and without any constitutional originalism to back it up – that lower courts “may not inquire into the president’s motives … nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law.” And, amazingly, the court ruled Trump’s exchanges with Department of Justice officials to overthrow the 2020 election in his favor are protected by presidential immunity because such exchanges qualify as “officials acts.” Constitutional scholar and Democratic Congressman Jamie Raskin correctly argues this "radical break from history and the rule of law shows how far Trump’s lawlessness has contaminated the Supreme Court." Indeed.

Even Trump-nominated Justice Amy Coney Barrett balked at John Roberts' sweeping view of presidential immunity for acts hardly within a president’s constitutional realm. "Take the president’s alleged attempt to organize alternative slates of electors," Barrett wrote in a partial dissent. "In my view, that conduct is private and therefore not entitled to protection. The Constitution vests power to appoint presidential electors in the states. And while Congress has a limited role in that process, the president has none. In short, a president has no legal authority – and thus no official capacity – to influence how the states appoint their electors. I see no plausible argument for barring prosecution of that alleged conduct.”

Yet Chief Justice Roberts seeks to excuse a movement bent on dictatorship, if Trump’s words of recent are to be taken seriously. At one point, Roberts argues immunity may be warranted involving Trump’s self-serving efforts to pressure his vice president to reject or question Electoral College votes from battleground states sufficiently to allow Trump a path to electoral victory. Vice President Pence refused to do so, citing his strictly ceremonial role as defined by law, including the Twelfth Amendment to the Constitution. Yet Roberts trivializes the key fact that Pence, in his role on January 6, was functioning as president of the Senate – and not as vice president.

"When may a former president be prosecuted for official acts taken during his presidency?" Roberts asks in his opinion. "Our nation has never before needed an answer. But in addressing that question today, unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies. In a case like this one, focusing on 'transient results' may have profound consequences for the separation of powers and for the future of our republic." And thus he cavalierly justifies a bewildering, disordered decision that is more an assemblage of impressions and musings, dispensed with little or no solid foundation and providing no real resolution to our "present exigencies."

Freewheeling Justice Clarence Thomas expands on Roberts' scattershot approach in a concurrence that isn't really even a concurrence, questioning the appointment of "a private citizen as special counsel to prosecute a former president on behalf of the United States." It lands far from the immunity question, yet is perversely intriguing given a member of the Thomas household who, in the wake of the disputed 2020 presidential election, longingly contemplated "the Biden crime family and ballot-fraud co-conspirators (elected officials, bureaucrats, social media censorship mongers, fake stream media reporters, etc.)" being arrested and "living in barges off GITMO to face military tribunals for sedition."

Roberts’ tangled web of arguments for unburdening Trump, even as the court now returns the case to District Judge Tanya Chutkan to sort out to see if a trial is even possible, confirms that we the people are indeed the proverbial frogs in the proverbial slow-boiling pot. The Roberts court has given oligarchs free rein to buy elections and candidates in Citizens United v. FEC (2010) and unleashed an avalanche of anti-democratic laws aimed at making voting harder through Shelby County v. Holder (2013), which gutted the Voting Rights Act that, ironically, might have allowed President Trump to legally prevent the “election irregularities” that supposedly foiled his reelection in 2020. Yet this latest ruling is far more malignant.

For one thing, it’s astounding in its reversal of what so many of these justices claimed during their own nomination hearings. For another, it’s stunning in its cowardice. The former president has immunity in conversations with the vice president – maybe. The former president has immunity in his conspiracy to assemble fake electors – maybe. The former president has immunity in his rhetoric and presumably his dereliction of duty on the Sixth – maybe. The one silver lining is that this bag of worms is back before Judge Chutkan, whose decisive, tightly worded Dec. 1 ruling on presidential immunity revealed far more constitutional resolve than the toxic ambiguities offered by Roberts and his crew of Trump apologists.

Roberts’ Trump v. United States opinion – affirmed by two justices (Thomas, Samuel Alito) who arguably violated federal ethics law by not recusing themselves from this particular case and three more justices who owe their powerful lifetime appointments to Trump – clashes with not only the Declaration of Independence but the Constitution. The president has no legitimate role whatsoever in contesting election outcomes except as a litigant through the courts (in which Trump consistently failed in 2020). And the president certainly has no constitutional right to strong-arm and browbeat governors, state lawmakers and secretaries of state into violating the law.

The Roberts ruling signals not only the court’s plummeting legitimacy but our nation's decline. Consider President Trump's insistence in June 2019 that "Article II allows me to do whatever I want" or his Dec. 3, 2022, call for "termination" of the Constitution to return him to power. Then consider a post-presidential observation in 1913 by Theodore Roosevelt, one of our nation's most vigorous chief executives, yet one cognizant and respectful of our history and the Constitution in ways Trump and the high court are not: “My belief was that it was not only [the president’s] right but his duty to do anything that the needs of the nation demanded unless such action was forbidden by the Constitution or by the laws.”

Former federal jurist Michael Luttig, whose conservatism is beyond question, showed his contempt for the ruling by quoting American revolutionary Thomas Paine from “Common Sense” (1776): “But where, say some, is the king of America? . . . [S]o far as we approve of monarchy . . . in America the law is king. For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.” For his part, Luttig in February joined in an amicus brief that asked the high court: "What kind of Constitution would immunize and thereby embolden losing first-term presidents to violate federal criminal statutes through either official or unofficial acts in efforts to usurp a second term?"

The answer, it turns out, pivots on a court that has forsaken originalism and is soaring well beyond our constitutional framework, desperately snatching bits and fragments of text out of context to bolster preposterous positions, paving the way for arguably America’s darkest days. The answer pivots on the court’s awe of a constitutionally contemptuous political figure who seeks to “ride the storm and direct the whirlwind.” As Luttig says, "the decision is irreconcilable with America's democracy, the Constitution and the rule of law." Yet many who pride themselves as patriotic Americans without fully understanding the American Revolution, the Constitution, Jefferson, Paine or Hamilton will celebrate this ruling.

Sotomayor’s rousing dissent finale has been widely quoted; equally relevant is her point that the court majority “invents an atextual, ahistorical and unjustifiable immunity that puts the president above the law.” And quoting the landmark 1821 Cohens v. Virginia ruling by a unanimous Marshall court, dissenting Justice Ketanji Jackson adds: “As we enter this uncharted territory, the People, in their wisdom, will need to remain ever attentive, consistently fulfilling their established role in our constitutional democracy and thus collectively serving as the ultimate safeguard against any chaos spawned by this court’s decision. For, like our democracy, our Constitution is ‘the creature of their will, and lives only by their will.’”

Yet Justice Jackson’s insights draw from another time. One fears America has settled into a bread-and-circus era when many of us rally around leaders who entertain and arouse us with demagoguery, uncouthness and hatred for fellow citizens, saying things decency, manners and political correctness once discouraged. We care little if such leaders cheat on their spouses with porn stars, get caught enriching themselves at the public trough, talk of becoming dictators or try to cancel out votes of our fellow citizens. As Alexis de Tocqueville observed after his travels through America in 1831, “A man's admiration for absolute government is proportionate to the contempt he feels for those around him.”    

In siding with Trump, the Roberts court also thumbs its nose at the spectacle of an angry, resentful mob of Trump supporters brutalizing police outside the U.S. Capitol and chasing lawmakers into hiding as it seized the building and delayed the constitutionally mandated certification of the presidential election. Had the mob stormed the nearby Supreme Court building, justices so desperate to reposition Trump for another destructive term in the American presidency might have had far more sobering thoughts about the rule of law in America. The Roberts court has lost its constitutional compass, let alone any moral compass. It is worthy of contempt and condemnation, infamy and irrelevance, now and forever.

Bill Whitaker spent 45 years as a reporter, editor and columnist in Texas journalism, including a dozen years as Waco Tribune-Herald opinion editor. He is a member of the Tribune-Herald Board of Contributors.