Even if the Justice Department can press forward with enough of its election interference case to convict Trump of something — and sustain the conviction on appeal — the case’s main legacy will be Chief Justice John G. Roberts Jr.’s muscular opinion this week loosening restraints on the presidency.
Whether you abhor or embrace the presidential immunity principles the Supreme Court announced in this case (my feelings are mixed), it’s important to understand that this outcome was not inevitable. It was the result of decisions by Attorney General Merrick Garland and his bullheaded prosecutor, Jack Smith. They chose to bring a questionable case that shouldn’t have been brought, and they presented it to the justices in a maximalist way that invited this beatdown.
As atrocious as Trump’s behavior was after losing the 2020 election, indicting him for it was a choice — a judgment call — not an obvious necessity. Garland himself certainly seemed to see it that way on entering office. The Post last year published a detailed account of Garland’s hesitation, citing his “desire to turn the page from missteps, bruising attacks and allegations of partisanship.” Gradually, and under intense political pressure, Garland changed his mind. Trump wasn’t indicted for 2½ years after the events in question, even though the indictment contained hardly any new information.
The New York Times described the Trump investigation this way: “Department leaders believed that the best way to justify prosecuting Mr. Trump and the Willard [Hotel] plotters was to find financial links between them and the rioters — because they thought it would be more straightforward and less risky than a case based on untested election interference charges.” Investigators’ inability to build a straightforward case tying Trump to the violence offered Garland the option of honorably declining to prosecute. But he didn’t take it.
Instead, he relied on tenuous legal theories to authorize one of the most momentous prosecutions in American history. The reliance on such theories to prosecute a president’s official acts did not sit well with the justices. Roberts’s opinion observes: “Section 371 — which has been charged in this case — is a broadly worded criminal statute that can cover ‘any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.’”
The chief justice continued: “Virtually every President is criticized for insufficiently enforcing some aspect of federal law (such as drug, gun, immigration, or environmental laws). An enterprising prosecutor in a new administration may assert that a previous President violated that broad statute.”
Had Trump been charged under a well-defined statute for what former attorney general William P. Barr has called a “meat-and-potatoes crime,” the Supreme Court might have been more likely to let the case go to trial without a ruling on presidential immunity — or to tailor immunity more narrowly. But because Trump’s terrible post-election behavior consisted mostly of broadcasting political lies, there was no such crime available. The Justice Department fell back on broad and inchoate charges.
If Garland’s prosecutors were determined to bring a case based on untested laws against a former president, they could have at least drawn up a clear, narrow indictment — perhaps limited to the fake elector slates Trump’s campaign submitted to Congress. But Garland’s prosecutors threw everything into the indictment they could, even alleging that Trump’s threat to remove an acting attorney general was criminal. Roberts was having none of it: “As we have explained, the President’s power to remove ‘executive officers of the United States whom he has appointed’ may not be regulated by Congress or reviewed by the courts.”
Conservatives such as Harvard Law School’s Jack Goldsmith noted in 2019 that special counsel Robert S. Mueller III had botched his analysis of the president’s power to remove subordinate officials. Smith, the second special counsel to pursue Trump, made the same mistake. That the Supreme Court’s six conservative justices recoiled at that part of the indictment, at least, should have been predictable. It was the only piece they quashed completely — and one wonders, again, how it affected their overall attitude toward the case.
Finally, there was the prosecution’s rush to try Trump before the 2024 election. Starting in late 2023, Smith began to strongly signal that the case had an electoral deadline, telling the Supreme Court that the “public interest in this case requires immediate resolution of the immunity question to permit the trial to occur on an appropriate timetable.”
Of course, the case was already moving at lightning speed. But Garland’s prosecutors, joined by an overwhelming chorus of anti-Trump legal pundits, began browbeating lower-court judges and later the Supreme Court justices to resolve the immunity issue, like, yesterday.
Put aside that trying to rush a case against a political candidate through the courts to affect an election is improper — it’s self-defeating if your goal is to convince the Supreme Court that prosecutors are apolitical. One of the Garland Justice Department’s key arguments against the need for presidential immunity was that prosecutors can be trusted to use their power responsibly.
The effort to jam the Supreme Court with high-minded pleas of urgency seems to have backfired. Roberts raised his eyebrows at the lower-court rush: “Despite the unprecedented nature of this case, and the very significant constitutional questions that it raises, the lower courts rendered their decisions on a highly expedited basis.” Again, by failing to treat the issue with seriousness and care, Garland’s prosecutors invited this massive repudiation.
To the question of when presidents can be prosecuted for their acts in office, Roberts wrote ruefully, “Our Nation has never before needed an answer.” If Garland had ignored political pressure and declined to bring this particular case against Trump, the nation would still not need an answer — and that ambiguity would probably be for the best. At the very least, Trump’s New York hush money conviction would not have been unexpectedly unsettled (because the trial might have included evidence of Trump’s official acts).
Will this debacle prompt the lawfare mavens to start listening to anyone outside their cocoon of the righteous? Doubtful. Those who hate the Supreme Court’s ruling will crusade against justices, and perhaps get some political mileage out of it.
But a savvy attorney general tries to advance his objectives within existing institutions. Garland took a big risk not only by bringing this case but also by letting his prosecutors present and argue it the way they did. Trump v. United States is his legacy, too.