Justice Roberts’ Immunity Decision is a Complete Mess

JUSTICE ROBERTS’ IMMUNITY DECISION IS A COMPLETE MESS  Yesterday’s Supreme Court immunity decision was written by Chief Justice John Roberts.  It has already been the subject of extensive commentary, including prognostications about its effect on November’s presidential election; the creation of a law-free king-like president who has a “law-free zone,” which was the subject of Justice Sotomayor’s impassioned dissent; and even a suggestion by Larry Tribe that we need to amend the Constitution to overrule the decision.  My purpose in this blog post isn’t to repeat any of those criticisms.  It is to point out as a matter of pure judicial craft just how bad Justice Roberts’ decision is.  I frankly expected better of him.

The core of Roberts’ opinion is that a former President is entitled to “some immunity from criminal prosecution for official acts during his tenure in office.”  How much is “some”?  How is that determination to be made?  And how do you differentiate between “official” and “unofficial” acts?  Does the “some” equate to “qualified immunity” recognized for presidential aides in civil cases in Nixon v. Fitzgerald, a case in which I was involved more than 40 years ago?  Given the pervasiveness of politics and PR in the conduct of the modern presidency, the distinction between official and unofficial acts is almost impossible to make as a practical matter, even if it sounds sensible in theory.

But it gets worse.  Justice Roberts declares that there needs to be “a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.”  How is the presumption overcome?  And how far can the outer perimeter extend?  Can you say “penumbra”?  

I don’t envy Judge Chutkan having to deal with these issues on remand.  Roberts tried to give her a little bit of guidance on that score, but the guidance he gave makes no sense.  He wrote that Trump’s discussions with former Attorney General Jeffrey Clark “are readily characterized” as official, and therefore immune, but his conversations with former Vice President Mike Pence may not be.  Say what?  Let’s remember the charge, which is that there was a conspiracy to submit fake slates of electors for certain states based on allegations of voting fraud that were rejected by 100% of the courts that considered the matter.  He installed Clark to get an opinion that his conduct was official, and lawful, and he wanted Pence to rule that there were enough questions about which slates of electors were legitimate that the issue had to be thrown into the House of Representatives, voting one vote per state, where Republicans’ dominance of small states would guaranty victory.  BOTH sets of conversations could be characterized as unofficial, as part of an election process, indeed a fraudulent election process, rather than the discharge of official duties, but Trump will argue that ensuring a fair election is unquestionably part of a President’s responsibilities.  It is impossible for me to see that there is a principled distinction between Clark and Pence.  The possibilities for confusion in making a nonsensical distinction abound.

Then there is the suggestion that “official acts” are inadmissible even to provide context for the “unofficial” ones.  How is that supposed to work in the context of a trial or an evidentiary hearing?  Justice Roberts made this point at oral argument, but he walked away from it in his opinion, and the unrealism of his chosen approach was the subject of Justice Amy Coney Barrett’s concurrence.

And where in all of this are the textualism and originalism that these conservative justices are supposed to adhere to?  There is nothing in the text of the Constitution or the deliberations of the founders or anything at all in the country’s early history that suggests that immunity was ever considered.  This is a pure common-law decision, but one that is based on defective reasoning and that will prove difficult to impossible to implement as a practical matter.  

Good luck Judge Chutkan.  The Supreme Court has set it up for further review, so if she concludes Trump should not be immune from prosecution they can again reverse.  

Justice Roberts is a better judicial craftsman than this.  For shame.

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