Chief justice ‘shaken’ by 'adverse' reaction to Trump's near-total immunity: report

Last year, when Donald Trump’s attorneys declared he had “total immunity” from prosecution, many in the legal community scoffed. No president in all of American history had ever proclaimed they could not be convicted for serious violations of law—most infamously, President Richard Nixon had to have been keenly aware he might be criminally prosecuted.

Just eleven days after Nixon resigned the presidency in 1974, TIME reported, “Nixon’s new status as a private citizen puts him in grave peril.”

In fact, TIME continued, “the Watergate grand jury had vigorously wanted to indict Nixon while he was President.”

The American public is aware presidents can be prosecuted for certain crimes, and there is a foundational expectation of that possibility. In February of 2021, after the Democratic House impeached Donald Trump, Senate Republican Minority Leader Mitch McConnell declared the ex-president should face criminal prosecution rather than impeachment.

“Donald Trump’s legal troubles are far from over, despite his acquittal in the U.S. Senate impeachment trial that ended on Saturday,” Reuters reported on February 16, 2021. “Minority Leader Mitch McConnell noted this just moments after voting to acquit Trump, saying the courts are the proper forum for holding the former president accountable for his role in the deadly Jan. 6 attack on the U.S. Capitol by Trump supporters.”

We now know that after Special Counsel Jack Smith asked the U.S. Supreme Court to settle the claim of “presidential immunity” by Trump’s attorneys, it refused, waiting for a lower court to weigh in. Chief Justice John Roberts sent a “scathing critique of [that] lower-court decision and a startling preview of how the high court would later rule,” The New York Times reported last month.

“Behind the scenes, the chief justice molded three momentous Jan. 6 and election cases that helped determine the former president’s fate,” according to The Times’ reporting.

“’I think it likely that we will view the separation of powers analysis differently’ from the appeals court, he wrote,” The Times reported, offering this interpretation for the Chief Justice’s message: “In other words: grant Mr. Trump greater protection from prosecution.”

During oral arguments at the Supreme Court, Trump’s attorney, John Sauer, had literally argued a president could order a coup and be protected by immunity because it was an “official act” of the presidency.

Sauer also argued a president could order the assassination of a political rival and still have immunity from prosecution.

Chief Justice Roberts responded to the “momentous trio of Jan. 6-related cases…by deploying his authority to steer rulings that benefited Mr. Trump, according to a New York Times examination that uncovered extensive new information about the court’s decision making.”

In short, the Chief Justice used his powers to intervene and craft an opinion that some experts have said creates new law—certainly nothing that is found in the U.S. Constitution.

“There’s no legal authority for it,” remarked CNN legal analyst Norm Eisen back in December.

Nor, as the “originalist” far-right justices on the bench have adopted, does Chief Justice Roberts’ ruling lie in the “history and tradition” of the United States.

And yet, despite decades of history starting with Richard Nixon, and despite the scathing dissenting opinion from Justice Sonia Sotomayor, CNN reports on Tuesday, Chief Justice Roberts “was shaken by the adverse public reaction to his decision affording Trump substantial immunity from criminal prosecution. His protestations that the case concerned the presidency, not Trump, held little currency.”

“The Roberts Court has been in sync with the GOP political agenda largely because of decisions the chief justice has authored: For Trump and other Republicans. Against voting rights and racial affirmative action. Against federal regulations over environmental, public health and consumer affairs,” CNN’s Chief Supreme Court Analyst Joan Biskupic reported. “Roberts, joined by his five fellow conservatives, found that the former president was entitled to presumptive, if not absolute, immunity for actions related to his official acts. Roberts’ view of official acts, as opposed to private ones, was vast.”

Justice Sonia Sotomayor’s dissenting opinion on Trump’s immunity blasted Roberts and the far-right justices, famously declaring:

“Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for ‘bold and unhesitating action’ by the President, the Court gives former President Trump all the immunity he asked for and more.”

She also wrote:

“The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military dissenting coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.”

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