Chief Justice Roberts’s Rule of Disorder: Where the Trump Legal Cases Stand
On Monday, Donald Trump became the Republican Party’s presidential nominee. The same day, a federal district court judge he appointed, Aileen Cannon, threw out the Mar-a-Lago documents case in which the evidence was overwhelming that the former president obstructed justice. The Republican nominee remains a convicted felon in New York State, where he’s also been barred from doing business, found liable for sexual assault, had his charity dismantled, and other penalties in what’s fair to call a crime spree. He has been charged with multiple additional felonies in federal and Georgia state court.
Anyone else so situated would fear imprisonment, as even Trump was earlier this summer when the Manhattan jury found him guilty on 34 felony counts related to his hush money and electoral interference scheme. However, sentencing has been delayed until September, and imprisonment seems increasingly remote.
Indeed, none of the four outstanding cases will be completed before the November election, and if Trump is elected president, they’ll vanish. Even if Trump loses the election to Joe Biden or another Democrat, he could walk out of four courthouses as a free man.
While Chief Justice John Roberts has said that “no one is above the law,” his sweeping opinion on presidential immunity issued at the end of this Supreme Court term has placed the 78-year-old almost entirely beyond the prosecutor’s reach—not only granting all former presidents presumptive immunity for official acts but, in a footnote that will live in infamy, limiting the proof available to prosecutors to go after “private” criminal acts.
Under Roberts’s Rule of Disorder, Richard Nixon’s criminal conduct during the Watergate scandal could be characterized as “official” since he used governmental resources to cover up his crimes. It was inconceivable to anyone in the mid-1970s that Nixon faced no legal liability, which is precisely why President Gerald Ford pardoned him.
As bad as that is, there’s even more to the Roberts invitation to Oval Office lawlessness. Hypothesizing a bribery prosecution where the president accepts money to appoint an ambassador, the Chief elaborated:
“[O]f course, the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence
of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. … What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. … As we have explained, such inspection would be “highly intrusive” and would “ ‘seriously cripple’ ” the President’s exercise of his official duties. …. “
Trump-appointed Justice Amy Coney Barrett was horrified by the Chief’s footnote dictum. She said in an “Are-you-kidding?” concurring opinion:
Consider a bribery prosecution—a charge not at issue here but one that provides a useful example. … The Constitution, of course, does not authorize a President to seek or accept bribes, so the Government may prosecute him if he does so.… Yet excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability.
The Roberts get-out-of-jail-free pass for Trump is most glaring in the Manhattan jury’s conviction for his presidential payment of hush money to the adult film actress Stormy Daniels in the runup to the 2016 election.
Trump has moved to vacate his conviction because, although the vast majority of the prosecution’s evidence related to pre-presidential conduct, it also included elements occurring after he took office in 2017, including conversations with White House Communications Director Hope Hicks, Tweets sent from the official White House account, and a financial disclosure form required of the president.
Based on Roberts’ footnote, Trump contends that these bits are evidence of his “core” presidential authority—one tier of authority in a multi-part test that the chief dreamed up, making Roe v. Wade look like a one-page memo. Trump argues that the verdict must be set aside because the court failed to exclude these “core” duties at the “outset” of the case.
Judge Juan Merchan appears unlikely to rule for Trump. He will probably find that the presidential conduct is insignificant to the guilty narrative or was collateral to the overwhelming evidence of guilt. But will the appellate courts—notably, the Supreme Court—agree? Not bloody likely.
Merchan admitting Hicks’s testimony about her 2018 conversations with Trump, including one that took place after The Wall Street Journal reported on Michael Cohen’s payment to Daniels, demands the verdict be reversed. Trump argues that despite the Journal article’s subject matter predating his presidency and covering purely private conduct, that conversation qualifies as evidence of executive authority.
The Supreme Court’s ruling leaves Special Counsel Jack Smith’s January 6 case in Washington, D.C., in tatters. The justices returned the case to the District Court with pointed guidance: Trump’s fruitless communications with the Justice Department, ordering a baseless election investigation, are, according to the conservative majority, “official acts” entitled to immunity. Similarly, his pressuring Vice President Mike Pence to ignore his constitutional duty to confirm the electoral count and the 45th president’s public statements are presumptively immune. Remove those bytes from the evidentiary database, and little is left standing. Perhaps Trump’s arm-twisting of officials in multiple states to promote a fake electors scheme can form the germ of a case. But it’s unclear whether that’s sufficient to sustain Smith’s broad conspiracy charges or enough to tell a coherent story to a jury.
Judge Tanya Chutkan has to cadge through the carnage, and she won’t have the final say. The Supreme Court gave Trump explicit permission to appeal the judge’s new determinations right back up the chain before the trial starts. This’ll take a while, and by then, Smith may have been dismissed by Trump’s new attorney general.
The find-me-the-votes case brought by the concupiscent Fulton County, Georgia, District Attorney Fani Willis is on life support. The Georgia Court of Appeals has taken up the defendants’ claim that Willis has a disqualifying conflict of interest due to her meretricious relationship with since-departed lead prosecutor Nathan Wade. The appeals court has accepted the case and ordered the trial court to stand down entirely while it reviews the matter.
Judge Aileen Cannon has dismissed Smith’s classified documents case in Florida on the repeatedly rejected basis that the Justice Department violated the Constitution’s Appointments Clause by designating Special Counsel Smith. As indifferent as this ruling is to courts upholding dozens of special counsel appointments, it’s an added insult that Cannon was first handed the case in June 2023. Why go through the charade that she was seriously considering a trial if she would axe the prosecutor at the end of the day?
The answer may be in her 90-plus page opinion that leans heavily on Justice Clarence Thomas’s one-off cuckoo theory that special counsels are unconstitutional—something that even the likes of Justices Samuel Alito and Neil Gorsuch haven’t entertained. Trump never even raised the point before the Supreme Court. DOJ will appeal Cannon’s dismissal to the Eleventh Circuit. This development allows Smith to ask the Circuit Court to remove Cannon from the case.
The case against Trump in Florida is robust. The charged criminal conduct—unlawful retention of national security materials and obstruction of justice—occurred after Trump left office. Trump contends that he obtained the documents in the first place as a core exercise of his presidential duties, and his retention of them arose from those official acts. The argument is preposterous and would, by that logic, permit his selling those secrets to foreign governments as the fruit of an immunized tree. But, at the moment, the case is in tatters.
Trump’s attorney and mentor, the late redbaiter Roy Cohn, was famously fond of saying, “F— the law. Just tell me who the judge is.” Trump-appointed judges constitute the Court’s conservative supermajority. Now, he’s likely to be returned to office with more latitude to violate the law than even he thought possible.
It makes me think of William Carlos Williams: “Hold back the edges of your gowns, Ladies, we are going through hell.”
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