During nearly three hours of historic Supreme Court arguments, John Roberts said little. But the cagey chief justice made some points abundantly clear.
A lower court ruling denying Donald Trump absolute immunity will not stand. The court cannot rely on the good faith of prosecutors. And whatever the staggering facts of the election subversion allegations against Trump, they are not his concern here.
Yet, Roberts kept his cards close to his vest on the full merits of the case as other justices played theirs – for and against the former president. That strategy will no doubt give the chief more options as the nine begin negotiating the decision.
Given the signals Thursday from Roberts and other justices, a majority would reject his broad proposition and find some criminal liability for former presidents who engaged in criminal acts while in office.
Yet, whatever Trump loses on larger constitutional grounds, he may gain in the pure practicalities of avoiding to account for charges arising from the 2020 presidential contest before the 2024 election – a gift for Trump from the conservative Supreme Court.
The tenor of the arguments differed strikingly from the sentiment of lower court judges who’d previously heard Trump’s claim, as Roberts and the right wing concentrated on a former president’s potential exposure to retaliation by political opponents.
They avoided the particulars of the allegations against Trump, his rejection of the 2020 presidential election results, the efforts to organize alternate slate of electors and the January 6, 2021, US Capitol attack.
The DC Circuit US Court of Appeals had highlighted all of the post-presidential election activity.
Roberts’ attention, however, was elsewhere. He said he found the appeals court opinion lacking in sufficient grounding, and he derided the unanimous panel decision as circular and tautological.
“As I read it, it says simply a former president can be prosecuted because he’s being prosecuted,” Roberts said.
Michael Dreeben, arguing on behalf of special counsel Jack Smith who brought the charges against Trump, countered with prosecutorial safeguards, including that allegations would be presented to a grand jury, which then votes on an indictment.
“Now you know how easy it is in many cases for a prosecutor to get a grand jury to bring an indictment,” Roberts rejoined with derision, “and reliance on the good faith of the prosecutor may not be enough in some cases.”
Roberts suggested the case be returned to the lower court for deeper legal grounding and possible determination of what of the Trump actions charged could be considered part of his official duties and which his private conduct.
Sitting at the center of the bench and with several conservative hardliners to his right, Roberts matters. In difficult, closely divided controversies, such as Thursday’s, he can hold the deciding vote. Further, when he is in the majority, Roberts has the power, as chief justice, to determine who writes the opinion.
In past high-profile disputes involving Trump, Roberts has kept the pen for himself. Having begun his legal career in the Ronald Reagan administration, Roberts is protective of the office of the presidency.
But he has sometimes tried to put distance between the high court and the polarizing figure of Trump. He may be loath to write an opinion appearing to give the former president a victory that could be waved on the campaign trail. The nine-member bench is dominated by six conservatives, including three appointed by Trump.
Conservatives express fear of retribution against former presidents
The riveting arguments played out before a packed courtroom, with overflow seats set up in an alcove. Spectators included several current and former high ranking Justice Department officials.
Among the guests in the justices’ reserved seats were Jane Sullivan Roberts, wife of the chief justice, and Patrick Jackson, husband of Justice Ketanji Brown Jackson.
John Sauer, representing Trump and up first at the lectern, drew a more receptive response than might have been expected, perhaps because he quickly conceded his more expansive claims about absolute immunity. Sauer also acknowledged that certain private actions Trump took would not be shielded at trial.
But the dominant theme emerged when Dreeben stood at the lectern. The justices voiced fear of retribution against a former president, instigated by a new administration and overzealous prosecutors.
That possibility loomed larger than any court concern about the current indictment of the presumptive GOP presidential nominee or about his possible danger to democracy.
Whenever Dreeben tried to return to allegations of fraud, obstruction and other crimes against Trump, conservative justices swept them away.
In one exchange between Dreeben and Justice Samuel Alito regarding the reach of a law punishing conspiracy to defraud the United States, Alito asked, “Would you not agree that that is a peculiarly open-ended statutory prohibition?”
“It’s designed to protect the functions of the United States government,” Dreeben responded. “And it’s difficult to think of a more critical function than the certification of who won the election.”
Responded Alito, with the stance implicitly shared by Roberts: “I’m not, as I said, I’m not discussing the particular facts of this case.”
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