“Conspicuously absent [in the dissent] is mention of the fact that since the founding, no President has ever faced criminal charges—let alone for his conduct in office. And accordingly no court has ever been faced with the question of a President’s immunity from prosecution. All that our Nation’s practice establishes on the subject is silence. . .”
Chief Justice John “Arbitration Clause” Roberts, writing for the 6-3 Federalist Society majority in Donald J. Trump v The United States (2024).
I finally read this stinking pile of rabidly activist partisan juridical offal, a July 4th pre-election present to the plaintiff, Mr. DJT, so that you don’t have to. Note the Federalist Society/Heritage Foundation/judicial activist approach taken by Chief Justice John “Balls and Strikes Umpire” Roberts and his ilk.
Take the result you want (no prosecution of Project 2025’s declared presidential candidate) and work backwards from there by narrowly following the desired path. Minimize the many damning specifics of this case, mere allegations, many of them baseless or constitutionally irrelevant, keep the ruling as abstract, narrowly legalistic and generic as possible (in other cases, do the exact opposite, obviously, whatever the desired result dictates). In Trump v. US, obviously, start by framing the constitutional question of a candidate indicted on dozens of federal felony charges not even arguably part of his “core official duties” as narrowly as possible, some MAY have been part of his official duties, like so:
We granted certiorari to consider the following question: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
(note: for ease of reading I omit all citations. Decision, citations, concurrences and dissents can all be found here.)
On August 1, 2023, a federal grand jury indicted him on four counts for conduct that occurred during his Presidency following the November 2020 election. The indictment alleged that after losing that election, Trump conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of the election results. According to the indictment, Trump advanced his goal through five primary means. First, he and his co-conspirators “used knowingly false claims of election fraud to get state legislators and election officials to . . . change electoral votes for [Trump’s] opponent, Joseph R. Biden, Jr., to electoral votes for [Trump].” Second, Trump and his co-conspirators “organized fraudulent slates of electors in seven targeted states” and “caused these fraudulent electors to transmit their false certificates to the Vice President and other government officials to be counted at the certification proceeding on January 6.” Third, Trump and his co-conspirators attempted to use the Justice Department “to conduct sham election crime investigations and to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome.” Fourth, Trump and his co-conspirators attempted to persuade “the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.” . And when that failed, on the morning of January 6, they “repeated knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding.” Ibid. Fifth, when “a large and angry crowd . . . violently attacked the Capitol and halted the proceeding,” Trump and his co-conspirators “exploited the disruption by redoubling efforts to levy false claims of election fraud and convince Members of Congress to further delay the certification.” .Based on this alleged conduct, the indictment charged Trump with (1) conspiracy to defraud the United States in violation of 18 U. S. C. §371, (2) conspiracy to obstruct an official proceeding in violation of §1512(k), (3) obstruction of and attempt to obstruct an official proceeding in violation of §1512(c)(2), §2, and (4) conspiracy against rights in violation of §241.[1]
Trump insisted nobody can do shit to him because of Article II. The district court disagreed. The appellate court affirmed the trial court’s decision. Here’s what John Roberts quoted from their decision:
The D. C. Circuit distinguished between two kinds of official acts: discretionary and ministerial (citation). It observed that “although discretionary acts are ‘only politically examinable,’ the judiciary has the power to hear cases” involving ministerial acts that an officer is directed to perform by the legislature. (citation). From this distinction, the D. C. Circuit concluded that the “separation of powers doctrine, as expounded in Marbury and its progeny, necessarily permits the Judiciary to oversee the federal criminal prosecution of a former President for his official acts because the fact of the prosecution means that the former President has allegedly acted in defiance of the Congress’s laws.” (citation). In the court’s view, the fact that Trump’s actions “allegedly violated generally applicable criminal laws” meant that those actions “were not properly within the scope of his lawful discretion.” (citation), The D. C. Circuit thus concluded that Trump had “no structural immunity from the charges in the Indictment.” Like the District Court, the D. C. Circuit declined to analyze the actions described in the indictment to determine whether they involved official acts.
We granted certiorari to consider the following question: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
John Roberts includes this weighty consideration, properly enough, in deciding how much unaccountability a certain former president would enjoy (he does so in passing, of course):
We must, however, “recognize[ ] the countervailing interests at stake.”. Federal criminal laws seek to redress “a wrong to the public” as a whole, not just “a wrong to the individual.”. There is therefore a compelling “public interest in fair and effective law enforcement.” The President, charged with enforcing federal criminal laws, is not above them (citation). . .
And this is why Roberts is a fucking Nazi:
. . . Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution. Indeed, if presumptive protection for the President is necessary to enable the “effective discharge” of his powers when a prosecutor merely seeks evidence of his official papers and communications, it is certainly necessary when the prosecutor seeks to charge, try, and imprison the President himself for his official actions. At a minimum, the President must therefore be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.” . . .
. . . As for a President’s unofficial acts, there is no immunity. The principles we set out in Clinton v. Jones confirm as much. . .
. . .The indictment broadly alleges that Trump and his co-conspirators sought to “overturn the legitimate results of the 2020 presidential election.”. It charges that they conspired to obstruct the January 6 congressional proceeding at which electoral votes are counted and certified, and the winner of the election is certified as President-elect. As part of this conspiracy, Trump and his co-conspirators allegedly attempted to leverage the Justice Department’s power and authority to convince certain States to replace their legitimate electors with Trump’s fraudulent slates of electors. According to the indictment, Trump met with the Acting Attorney General and other senior Justice Department and White House officials to discuss investigating purported election fraud and sending a letter from the Department to those States regarding such fraud. The indictment further alleges that after the Acting Attorney General resisted Trump’s requests, Trump repeatedly threatened to replace him. . . .
. . .The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials. . .
. . .The indictment’s remaining allegations cover a broad range of conduct. Unlike the allegations describing Trump’s communications with the Justice Department and the Vice President, these remaining allegations involve Trump’s interactions with persons outside the Executive Branch: state officials, private parties, and the general public. Many of the remaining allegations, for instance, cover at great length events arising out of communications that Trump and his co-conspirators initiated with state legislators and election officials in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin regarding those States’ certification of electors. .Specifically, the indictment alleges that Trump and his co-conspirators attempted to convince those officials that election fraud had tainted the popular vote count in their States, and thus electoral votes for Trump’s opponent needed to be changed to electoral votes for Trump. After Trump failed to convince those officials to alter their state processes, he and his co-conspirators allegedly developed a plan “to marshal individuals who would have served as [Trump’s] electors, had he won the popular vote” in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin, “and cause those individuals to make and send to the Vice President and Congress false certifications that they were legitimate electors.”. If the plan worked, “the submission of these fraudulent slates” would position the Vice President to “open and count the fraudulent votes” at the certification proceeding and set up “a fake controversy that would derail the proper certification of Biden as president-elect.” According to the indictment, Trump used his campaign staff to effectuate the plan. On the same day that the legitimate electors met in their respective jurisdictions to cast their votes, the indictment alleges that Trump’s “fraudulent electors convened sham proceedings in the seven targeted states to cast fraudulent electoral ballots” in his favor. Those ballots “were mailed to the President of the Senate, the Archivist of the United States, and others.”.
At oral argument, Trump appeared to concede that at least some of these acts—those involving “private actors” who “helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding” at the direction of Trump and a co-conspirator—entail “private” conduct.
But then, during anal argument, the president had a shit fit. He agreed that he could send SEAL Team Six to kill the Biden Crime Family. All of his conduct was official, throughout his presidency, his reluctant post-presidency, during his first, second and third presidential campaigns and all the years leading up to, and including, the Apprentice, as well as his childhood and the years of his sexual maturity — all immune from any criticism, allegation or anything hurtful to his sense of self.
. . . On Trump’s view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity and proper administration of the federal election. Of course, the President’s duty to “take Care that the Laws be faithfully executed” plainly encompasses enforcement of federal election laws passed by Congress. Art. II, §3. And the President’s broad power to speak on matters of public concern does not exclude his public communications regarding the fairness and integrity of federal elections simply because he is running for re-election. Similarly, the President may speak on and discuss such matters with state officials—even when no specific federal responsibility requires his communication—to encourage them to act in a manner that promotes the President’s view of the public good.
“encourage them to act in a manner that promotes the President’s view of the public good.” Fuck you, John, seriously.
. . . Indeed, a long-recognized aspect of Presidential power is using the office’s “bully pulpit” to persuade Americans, including by speaking forcefully or critically, in ways that the President believes would advance the public interest. . .
Such as the public interest in violently storming the Capitol to prevent certification of an election result the electorally defeated president does not like.
. . .The essence of immunity “is its possessor’s entitlement not to have to answer for his conduct” in court. Presidents therefore cannot be indicted based on conduct for which they are immune from prosecution. As we have explained, the indictment here alleges at least some such conduct. . .
Trump claimed he couldn’t be prosecuted for the same things he was impeached and unsuccessfully removed for. Roberts, bravely calling balls and strikes (after getting ready to rule basically exactly this):
. . .The implication of Trump’s theory is that a President who evades impeachment for one reason or another during his term in office can never be held accountable for his criminal acts in the ordinary course of law. So if a President manages to conceal certain crimes throughout his Presidency, or if Congress is unable to muster the political will to impeach the President for his crimes, then they must forever remain impervious to prosecution. . .
Finally Roberts dismisses the doomsaying dissenters who seem not to want an openly corrupt president with a long criminal history to be immune for all criminal acts he can justify as falling within the outer limits of his core powers.
. . . As for the dissents, they strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today—conclude that immunity extends to official discussions between the President and his Attorney General, and then remand to the lower courts to determine “in the first instance” whether and to what extent Trump’s remaining alleged conduct is entitled to immunity. . .
. . . Unable to muster any meaningful textual or historical support [1], the principal dissent suggests that there is an “established understanding” that “former Presidents are answerable to the criminal law for their official acts.” Conspicuously absent is mention of the fact that since the founding, no President has ever faced criminal charges—let alone for his conduct in office. And accordingly no court has ever been faced with the question of a President’s immunity from prosecution. All that our Nation’s practice establishes on the subject is silence. . .
Justice Sotomayor, joined by Kagan and Jackson, dissented:
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. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.
The indictment paints a stark portrait of a President desperate to stay in power.
In the weeks leading up to January 6, 2021, then-President Trump allegedly “spread lies that there had been outcome-determinative fraud in the election and that he had actually won,” despite being “notified repeatedly” by his closest advisers “that his claims were untrue,”.
When dozens of courts swiftly rejected these claims, Trump allegedly “pushed officials in certain states to ignore the popular vote; disenfranchise millions of voters; dismiss legitimate electors; and ultimately, cause the ascertainment of and voting by illegitimate electors” in his favor. It is alleged that he went so far as to threaten one state election official with criminal prosecution if the official did not “ ‘find’ 11,780 votes” Trump needed to change the election result in that state. When state officials repeatedly declined to act outside their legal authority and alter their state election processes, Trump and his co-conspirators purportedly developed a plan to disrupt and displace the legitimate election certification process by organizing fraudulent slates of electors.
As the date of the certification proceeding neared, Trump allegedly also sought to “use the power and authority of the Justice Department” to bolster his knowingly false claims of election fraud by initiating “sham election crime investigations” and sending official letters “falsely claim[ing] that the Justice Department had identified significant concerns that may have impacted the election outcome” while “falsely present[ing] the fraudulent electors as a valid alternative to the legitimate electors.” When the Department refused to do as he asked, Trump turned to the Vice President. Initially, he sought to persuade the Vice President “to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.”. When persuasion failed, he purportedly “attempted to use a crowd of supporters that he had gathered in Washington, D. C., to pressure the Vice President to fraudulently alter the election results.”
Speaking to that crowd on January 6, Trump “falsely claimed that, based on fraud, the Vice President could alter the outcome of the election results.” When this crowd then “violently attacked the Capitol and halted the proceeding,” Trump allegedly delayed in taking any step to rein in the chaos he had unleashed. Instead, in a last desperate ploy to hold onto power, he allegedly “attempted to exploit the violence and chaos at the Capitol” by pressuring lawmakers to delay the certification of the election and ultimately declare him the winner. That is the backdrop against which this case comes to the Court.
The Court now confronts a question it has never had to answer in the Nation’s history: Whether a former President enjoys immunity from federal criminal prosecution. The majority thinks he should, and so it invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.
Or as John Roberts, and his five reactionary colleagues on the nation’s highest court, would say “I know you are, but what am I?” And it’s not like Trump has done anything illegal, corrupt, unconstitutional or stinking to high heaven since becoming the 47th president…
“The indictment paints a stark portrait of a President desperate to stay in power.”
[1] As corporate pantload Roberts himself notes, this is the first time the question of immunity for a criminal former president has ever come before the Supreme Court, so where is the precedent he chides the dissent for failing to cite supposed to come from? Once again, John, fuck you and the Nazi horse you rode in on.
