In concluding his opinion on executive immunity, Chief Justice John G. Roberts Jr. pooh-poohed the fear of his liberal colleagues who were worried that they would disagree that the broad protections the Supreme Court granted former President Donald J. Trump would provide for the future. The president is beyond the reach of the law.
The real concern, Chief Justice Roberts said, is not immunity that would allow presidents to commit crimes with impunity, but that without it, the nation’s rival leaders would be constantly at the throats of the nation.
“Advocates ignore the prospect of an executive branch that can self-destruct,” he wrote, “with each successive president free to sue his predecessors.”
That vision is dark, But right or wrong it proves to be, not out of nowhere: It was offered to the court by Mr. Trump’s own lawyer during the oral argument in the question of immunity that took place in April.
The justices in the majority said their decision was not just about Mr Trump. But it cannot be separated from the possibility of a second Trump presidency after a campaign in which Mr. Trump himself has promised without shame to use the legal system as a weapon of political retribution against President Biden and other opponents, who are accused of having. unfairly targeted him for prosecution.
In many ways, the court’s decision is like a Rorschach test for judges, revealing what they see as the greatest threat to American democracy.
For conservatives, the threat is the prospect of an unending cycle of partisan impeachment that impedes the president’s ability to make decisions in the best interest of the country.
The main concern, the chief justice wrote, is to insulate the president from the danger of “hesitating to carry out the duties of office fearlessly and fairly” for fear of prosecution.
Liberals, by contrast, fear monarchical presidents who can use the power of office for personal or political gain or for other illegitimate purposes without the legal checks and balances they say have long been needed to ensure accountability.
“Let the president break the law, let him exploit the trappings of office for personal gain, let him use official power for nefarious purposes,” Justice Sonia Sotomayor said angrily and occasionally sarcastically. “Because if they know that they will face responsibility for breaking the law, they may not be as brave and fearless as they want to be. This is the message of the majority today.
Overall, the ruling reflects the extent to which the court’s conservative majority, which Mr. Trump helped expand, has embraced his view of politics as an unstoppable battle for power and the assertion that American leaders will, as a matter of course. course, now seek to sue their competitors.
Trevor Morrison, a professor at New York University School of Law, agreed that the court’s decision focused the spotlight not only on what the judges feared about the future of the country, but also on the central principles held as federal legal experts.
“Both are very different from what they see as the main danger that everyone wants to protect against,” he said. “But you can also compare these values, with the majority wanting the presidency not to be marred by ongoing prosecutions and detractors who show concern about ensuring the rule of law.”
These two divergent views on the nature of politics and power were more than a philosophical dispute between the judges. The way courts decide immunity cases can have real effects on the ground.
Mr. Morrison, for example, imagined what would happen if Mr. Trump were re-elected and appointed attorney general to follow Mr. Biden.
“The majority of the court would say that Biden enjoys a lot of immunity from prosecution,” Mr Morrison said. “But at the same time, nobody can go after Trump for going against the Justice Department.”
Mr. Trump’s lawyers first expressed the idea that in the future, the former president will be constantly pursued by his successors in a written submission to the court. But the fullest articulation of that stance came during the court’s oral arguments.
That’s when D. John Sauer, who argued before the judge on behalf of Mr. Trump, asked him to imagine anyone – Mr. Trump was not identified by name – suing Mr. Biden for his immigration agenda.
“Will President Biden one day be charged with unlawfully impeding immigrants from entering the country illegally for his border policies?” Mr. Sauer asked.
Answering his own question, Mr. Sauer envisioned a world where legal tit-for-tat continued, insisting that it would destroy “the presidency as we know it.” And some judicial conservatives seem to agree that the world is on its way — or perhaps already here.
Justice Samuel A. Alito Jr., for example, expressed concern that without some form of criminal immunity, former presidents would be extremely vulnerable to having their successors use the courts to pursue them after they leave office. And, he added, it could lead to a continuous cycle of retribution that would pose a risk to “a stable democratic society.”
Mr. Trump has long maintained — and baselessly — that Mr. Biden and his Democratic allies are doing politicians justice by pursuing him with multiple indictments even as they face each other on the campaign trail. But in continuing his statement, Mr. Trump never acknowledged the fact that no other president has faced allegations, or as much evidence, of wrongdoing as he has.
In its ruling, the Supreme Court majority tacitly bought into Mr. Trump’s portrayal of himself as the victim of a partisan legal battle — if only by endorsing a vision of the world in which the president would use his power to follow his predecessors.
That bleak outlook also resonates with the former president’s long-held belief: there are no good men in the world because everyone is corrupt.
Against that dystopian vision, liberal dissenters, especially Justice Sotomayor, asserted that immunity is not necessary to protect former presidents from partisan charges because the job can be effectively handled by “all the protections that our system provides to criminal defendants.”
Justice Sotomayor reminded the conservative majority that it will not be easy to prosecute the former president — a proposition that is consistent with the amount of time and anxiety required to prosecute Mr. Trump and the difficulty prosecutors have had in moving forward. case.
There are checks and balances built in, Justice Sotomayor said, to stop prosecutors from bringing cases without merit. He cited the grand jury process, for example, the ability to file a motion to dismiss and the burden of proof that prosecutors must meet in court.
But Chief Justice Roberts seemed to reject the suggestion that normal legal roadblocks could slow down partisan prosecutors in their mission to prosecute political rivals, arguing that immunity is needed because, by its very nature, it stops prosecutions from reaching the courtroom.
He also seemed to reject the assurance of the Department of Justice – echoed by dissenting liberals – that “prosecutors and grand juries will not allow political or baseless prosecutions from moving forward in the first place,” as he put it.
“We do not ordinarily decline to decide important constitutional questions,” he wrote, “based on the government’s promise of good faith.”
Maggie Haberman contribute reports.
