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.
