Like many of you, I’ve been going over Chief Justice John Roberts’ presidential immunity decision, trying to understand the distinction it sets out between “official” acts of a president, which are immune from prosecution, and “unofficial” acts, which are not immune. And I wanted to share with you a particularly troubling aspect.
Having served in the Justice Department soon after Richard Nixon sought to use the department to go after the people on his “enemies list,” I was struck by Roberts’s assertion that a “president may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials …” and that “the Attorney General, as head of the Justice Department, acts as the President’s ‘chief law enforcement officer’ who ‘provides vital assistance to [him]…”
Since Nixon, the Justice Department has been careful to keep the president and the White House strictly out of decisions over whom to prosecute. But Roberts’s language would immunize Trump from criminal prosecution, were he to become president again and seek to use the Justice Department to prosecute his enemies — exactly what dictators do.
In her dissent, Justice Sonia Sotomayor wrote that “The Republican appointed-majority in this opinion has … opened the door to a President exercising wide dictatorial powers without any ultimate legal accountability for his actions.”
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In his opinion for the majority, Chief Justice John Roberts accused Sotomayor and the two other Democratic-appointed justices who joined her in dissent of “fearmongering on the basis of extreme hypotheticals….”
But is this really fearmongering? Trump has repeatedly called for the imprisonment of his political opponents, often singling out members of the January 6 committee.
Over the weekend, Trump circulated two posts on his social media website that presumably reflect his thinking.
One singled out Liz Cheney, the former Wyoming congresswoman, and called for her to be prosecuted by a type of military tribunal reserved for enemy combatants and war criminals, which would strip Cheney of her right to due process. “Elizabeth Lynne Cheney is guilty of treason,” the post said. “Retruth if you want televised military tribunals.”
The other post included photos of 15 former and current elected officials that said, in all-capital letters, “they should be going to jail on Monday not Steve Bannon!” The list included President Biden, Vice President Kamala Harris, Senators Mitch McConnell and Chuck Schumer and former Vice President Mike Pence, and members of the House committee that investigated the January 6, 2021, attack on the Capitol, including Ms. Cheney and the former Illinois Congressman Adam Kinzinger, another Republican, and the Democratic Representatives Adam Schiff, Jamie Raskin, Pete Aguilar, Zoe Lofgren, and Bennie Thompson, who chaired the committee.
The posts were still up on Trump’s Truth Social profile yesterday afternoon.
Liz Cheney responded with her own social media post, saying “Donald — This is the type of thing that demonstrates yet again that you are not a stable adult — and are not fit for office.”
The Trump campaign responded to Cheney with a statement claiming that “Liz Cheney and the sham January 6th committee banned key witnesses, shielded important evidence, and destroyed documents” related to their investigation.
I don’t believe Sotomayor and her fellow dissenters from yesterday’s opinion were engaging in fearmongering on the basis of extreme hypotheticals. Do you?
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Robert Reich is a professor of public policy at Berkeley and former secretary of labor. His writings can be found at https://robertreich.substack.com/
