John Roberts’ Guide to Pulling Off a Coup Without Getting Caught

The Supreme Court on Monday granted former presidents so much immunity from prosecution — some absolute, some presumptive, but with little guidance on how to classify official acts into those categories — that it will be nearly impossible for prosecutors to bring criminal charges against them in the future. This is, of course, particularly relevant in the case of special counsel Jack Smith, who had to wait a long time to rule on Donald Trump on January 6.

Fortunately for Trump, the court’s decision suggests that he appears to have conducted the Jan. 6 insurrection in a manner that affords him near-total immunity. Even some of Trump’s actions that look a lot like off-the-record acts — tweets that incited the mob, his speech at the Stop the Steal rally on the Ellipse — may well merit some immunity after all, Chief Justice John Roberts reasoned in his majority opinion.

“Certain presidential conduct—for example, speaking to and on behalf of the American people—certainly qualifies as official even if it is not clearly tied to any particular constitutional or statutory provision,” Roberts wrote, suggesting that he saw himself as casting a very wide net.

Under the new legal framework established by the Court, acts related to “fundamental constitutional powers” ​​enjoy absolute immunity. Other official acts enjoy “presumptive immunity.” And unofficial acts enjoy none (provided prosecutors can find any).

Roberts reviewed the charges against Smith, giving preemptive “guidance” to lower courts on how to sort through the charges.

In a complete get-out-of-jail-free card, Roberts claimed that Trump’s attempts to intimidate and pressure his Justice Department into pressuring states to replace their voter rolls with fake pro-Trump ones warrant absolute immunity.

“The president can discuss potential investigations and prosecutions with his attorney general and other Justice Department officials to fulfill his constitutional duty to ‘take care that the laws be faithfully executed,'” Roberts shrugged, apparently unconcerned by the torpedo he had just thrown at the Justice Department’s independence.

Trump’s threats to fire non-compliant Justice Department officials and replace them with subordinates? That also gives them absolute immunity.

The court then brought a more difficult-to-explain charge: Trump’s pressure campaign to get then-Vice President Mike Pence not to certify the actual Electoral College votes. Pence was acting as president of the Senate, not as a member of the executive branch, Roberts reluctantly noted. But!

“Applying a criminal ban on the President’s conversations about such matters with the Vice President – ​​even if they concern his role as President of the Senate – could well impede the President’s ability to perform his constitutional duties,” he wrote.

The presumptive immunity then falls on the government to prove that the pressure campaign was an unofficial act.

As for the fake voter scheme, even Trump admitted that these were “private acts” before quickly backtracking. The majority, moving from a summary of Trump’s argument to a direct comment, seemed to suggest that the conspiracy should in fact enjoy absolute immunity — the highest degree under the new standard, which attaches to “fundamental constitutional powers.”

“Of course, the president’s duty to ensure that the laws are faithfully administered clearly includes enforcing federal election laws passed by Congress,” Roberts wrote. “And the president’s broad authority to speak on matters of public concern does not preclude his public communications about the fairness and integrity of federal elections simply because he is running for reelection.”

And as for the aforementioned tweets and speeches that stirred up the mob that stormed the Capitol, the majority nominally leaves that to the lower courts — but offered a generous helping of its own inclinations (“most of a president’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities,” e.g., presumptive immunity).

In every instance, the majority tipped the scales in favor of granting Trump some degree of immunity (and occasionally made caveats so as not to completely exclude the government’s arguments). Roberts offered no examples of Trump conduct that the Court found to be indisputably off-the-record. Smith will surely now rephrase his remarks, trying to find a way through the Scylla and Charybdis of absolute and presumptive immunity.

It is nonetheless instructive that a Court so dismissive of Trump’s disqualification case—which took its argument directly from the text of the Constitution—is so willing to craft an entirely new theory of presidential immunity that just so happens to fit Trump’s actions around January 6.