Even if the Justice Department is able to fully investigate the election interference case and convict Trump, and even if the conviction is able to be upheld on appeal, the case's main legacy will be a powerful opinion issued this week by Chief Justice John G. Roberts Jr. that loosens constraints on the presidency.
Whether you abhor or support the doctrine of presidential immunity that the Supreme Court enunciated in this case is up to you (my feelings are mixed), but it is important to understand that this outcome was not inevitable. It is the result of the decisions of Attorney General Merrick Garland and his stubborn prosecutor Jack Smith, who chose to bring a questionable case that should never have been brought and presented the case to the judge in the utmost manner that would result in this defeat.
Trump's behavior after losing the 2020 election was egregious, but indicting him was a choice, a judgment, not an obvious necessity. Garland himself seemed to think so when he took office. The Washington Post detailed Garland's hesitation last year, citing his “desire to move on from missteps, scathing attacks and allegations of partisanship.” Gradually, and under intense political pressure, Garland changed his mind. Two and a half years after the events in question, Trump has not been indicted, but the indictment contained little new information.
The New York Times said of the Trump investigation: “Justice Department leaders said the best way to justify prosecuting Mr. Trump and Mr. Willard was to [Hotel] “We focused primarily on finding financial ties between the investigators and themselves, because we believed that would be a simpler, less risky prosecution than a case based on unproven allegations of election interference.” Because investigators could not build a simple case linking Trump to the riot, Garland was given the option to gracefully decline to prosecute. But he chose not to.
Instead, Justice Roberts relied on a flimsy legal theory to authorize one of the most serious prosecutions in American history. Relying on such a theory to prosecute the president's official duties drew the justices' displeasure. Justice Roberts' opinion stated, “Section 371, as charged in this case, is a broadly worded criminal statute, covering 'any conspiracy with the intent to impair, impede, or defeat the lawful functioning of any branch of government.'”
The Chief Justice continued: “Virtually every president has been criticized for inadequately enforcing some aspect of federal law — drug, gun, immigration, environmental laws, etc. — and an enterprising prosecutor in the new administration may argue that the former president violated that broad law.”
Had Trump been charged under what former Attorney General William P. Barr called a “fundamental crime,” the Supreme Court might have been more likely to let the case go to trial without ruling on presidential immunity, or to have narrowed the scope of immunity. But because Trump's egregious post-election behavior was centered on spreading political lies, no such crime existed. The Justice Department resorted to broad and vague charges.
If Garland's prosecutors had been determined to bring a case based on untested law against the former president, they could have at least crafted a clear and narrow indictment, perhaps confined to the fake electoral rolls the Trump campaign submitted to Congress. But Garland's prosecutors tried to include everything in their indictment, even going so far as to argue that Trump's threat to fire the acting attorney general was a criminal act. Roberts had no business with that: “As we have explained, the president's power to fire 'the executive officer of the United States whom he has appointed' cannot be restricted by Congress or reviewed by the courts.”
Conservatives like Harvard Law School's Jack Goldsmith pointed out in 2019 that special counsel Robert S. Mueller III got it wrong in his analysis of the president's power to fire his subordinates. Smith, the second special counsel pursuing Trump, made the same mistake. It was expected that the Supreme Court's six conservative justices would have balked at least at that part of the indictment. It was the only part they rejected outright, but it leaves one wondering again how that affected their overall stance on the case.
Finally, prosecutors rushed to try Trump before the 2024 election. Beginning in late 2023, Smith began strongly suggesting that the case had an election deadline, telling the Supreme Court that “the public interest in this case requires that the immunity issue be resolved immediately in order to bring the case to trial on an appropriate timeline.”
Of course, the case was already moving at lightning speed, but Garland's prosecutors joined an overwhelming chorus of anti-Trump legal experts who began threatening lower court judges, and later Supreme Court justices, yesterday to try to iron out the immunity issue.
Aside from the fact that it is inappropriate to rush to court to bring lawsuits against political candidates in order to influence an election, if your goal is to influence an election, it is self-defeating. Convince the Supreme Court that prosecutors are not involved in politicsOne of Garland's Justice Department's main arguments against the need for presidential immunity was that prosecutors could be trusted to use their power responsibly.
The attempt to confuse the Supreme Court with lofty pleas of urgency appears to have backfired. Roberts frowned upon the rush of the lower courts: “Despite the unprecedented nature of this case and the very serious constitutional questions it raises, the lower courts acted very quickly.” Garland's prosecutors once again invited this wholesale rejection by failing to treat the issue seriously and carefully.
In response to a question about when a president can be prosecuted for acts committed while in office, Roberts wrote ruefully:, “Our country has never needed answers.” If Garland had ignored political pressure and not brought this case against Trump, the country would have still No answer was needed, and the ambiguity was probably for the best: At the very least, Trump's New York hush-money conviction would not have been unexpectedly overturned (because the trial may have included evidence of Trump's official duties).
Will this fiasco make the legal gurus start listening to those outside their cocoons of justice? Probably not. Those who don't like the Supreme Court's decisions will mobilize against the justices and perhaps derive political advantage from it.
But a shrewd attorney general will work within the existing system to advance his own ends, and Garland took a big risk not only by filing this case but also by letting prosecutors build and argue the case. Trump vs. the United States That is also his legacy.
