Supreme resistance: John Roberts and company immunize Trump from the Left’s lawfare

Since he departed the White House, Donald Trump has faced a barrage of litigation and judicial proceedings across the country. Some of it was civil, such as the New York attorney general’s suit against the Trump Organization for inflating property valuations, E. Jean Carroll’s defamation suit, and the gambit to use Section 3 of the 14th Amendment to kick Trump off the ballot. Presidents have faced civil actions before. Last year, however, Trump became the first current or former president to face criminal charges — not once, but four times over, in the Manhattan hush money case, the Georgia false electors case, the Washington, D.C., election interference case, and the Mar-a-Lago classified documents case.

The aim of this legal maneuvering, which critics have decried as “lawfare,” was to render Trump unelectable by miring him in court for most of 2024, making it all but impossible for him to campaign and securing multiple guilty verdicts so he could be labeled a convicted felon.

The judges presiding over Trump’s trials have in many instances behaved like willing participants in these anti-Trump legal machinations, imposing gag orders on him, routinely rejecting motions filed by his lawyers while rubber-stamping those from the plaintiffs and prosecution and accepting their dubious theories, and generally rushing him toward unfavorable judgments. Before it was taken out of her hands, Tanya Chutkan, the judge in charge of Trump’s Washington, D.C., Jan. 6 case, seemed to be facilitating special counsel Jack Smith’s Javert-like pursuit of Trump as though she herself were hell-bent on getting the trial wrapped up well in advance of Nov. 5.

One court, however, has been unmoved by the Left’s pleas that Trump must face a jury of his peers before voters mark their ballots this fall. Unfortunately for the “resistance,” it happens to be the highest court in the land. While it may have enjoyed some success elsewhere, the scheme to litigate Trump into oblivion ran aground on the shoals of 1 First St. NE. With its decision in the Trump immunity case, the Supreme Court may have sunk it for good.

Trump had asked the high court to determine whether, as a former president, he enjoys immunity from criminal prosecution. Lower courts rejected his claim out of hand. But by a vote of 6-3, with the Republican-appointed justices on one side and the Democratic-appointed ones on the other, the justices ruled that presidents, including former presidents, possess absolute immunity with regard to their core constitutional powers and enjoy presumptive immunity for all official acts. Only unofficial acts lack any immunity at all.

The immunity case, the last to be decided and unusually not announced until July, was easily the most significant of this Supreme Court term. No ruling by any court will have a greater impact on the legal campaign against Trump. Because of its broad, nearly categorical assertion of presidential immunity, Chief Justice John Roberts’s majority opinion in Trump v. United States struck possibly a fatal blow against the legal resistance.

Taking a cue from Justice Sonia Sotomayor, who lamented in her dissent that “the President is now a king above the law,” champions of the effort to use the courts to vanquish Trump reacted with fury, as though recognizing its death knell. The majority’s decision “undermines the foundations of republican government,” sputtered New York Times columnist Jamelle Bouie. The Atlantic’s Adam Serwer, distempered as ever, castigated it “for defacing beyond recognition the Constitution and the concept of democratic self-determination.” Quinta Jurecic and Benjamin Wittes of the blog Lawfare, one of the main redoubts of the legal resistance, denounced “a decision of surpassing recklessness in dangerous times.”

Disgusted as they were with how the case was decided, their hyperbolic responses suggest that what upset progressive legal commentators most was that it was decided at all.

For many of them, the outcome was going to be illegitimate whatever it was because the case itself was illegitimate. The high court’s ruling merely confirmed what had been apparent for months: that a trial in the Washington election interference case, the most dangerous one for Trump, would not take place before the election. For months, therefore, critics had been objecting to the court’s timing and handling of Trump’s appeal. These objections, which crescendoed with the release of the decision in Trump v. United States, demonstrate most clearly the political considerations motivating the Left’s lawfare against the once and maybe future president.

Laurence Tribe, a retired Harvard Law School professor and for decades one of the luminaries of the legal Left, gave the game away in his New York Times op-ed about the immunity judgment. The court, he howled, “dispensed with the rule of law by effectively depriving the American people of crucial information we should have had before the November election.” By sending the case back to the district court not for trial but for Chutkan to ascertain which of Trump’s actions are immune, the majority “extinguished any realistic hope of getting a verdict in the Jan. 6 case before November” and condemned citizens to have to vote without knowing if Trump “is guilty of the crimes with which a grand jury of his fellow citizens charged him.”

Simply by accepting the immunity case the justices were “undermining core democratic values,” Melissa Murray, a professor at the New York University School of Law, and Andrew Weissmann, a frequent MSNBC guest who was Robert Mueller’s second in command during the Russian collusion inquiry, fulminated in April. What values would those be? Trying Trump ahead of the election, of course.

Why and how failing to try Trump before the election would undermine democratic values by depriving voters of crucial knowledge is never explained, just taken for granted. It’s hard not to think, though, that the ones really being deprived are Trump’s enemies, who tried to concoct that knowledge by putting him on trial and convicting him before the election. Which is the point. That gambit fails if the trials occur afterward. Hence the insistence, chanted like a mantra, that Trump must be tried before Nov. 5 and the myriad specious and factitious justifications the legal resistance invented for doing so.

One of the most noxious was the notion, fabricated out of whole cloth, that by taking their time to decide the immunity case, the justices were somehow violating the public’s right to a speedy trial. This conceit is a favorite, for example, of MSNBC legal analyst Barbara McQuade, a former U.S. attorney and current law professor at the University of Michigan who routinely refers to this suppositious right. Writing in the Atlantic in March, NYU law professor Ryan Goodman and Weissmann, two of the most scurrilous and mendacious figures in the legal resistance, urged the Supreme Court “to vindicate the public’s right to a speedy trial” by resolving the immunity case shortly after hearing it. While it is true that federal law recognizes a public interest in a speedy trial, under the Sixth Amendment, the right to a speedy trial belongs solely to the accused.

As the immunity case dragged on and the legal resistance became more anxious about its fate, its members increasingly complained about how long it was taking. The more conspiratorial among them detected nefarious designs in the delay and suspected the justices were intentionally dragging their feet to help Trump by holding on to it until a preelection trial was no longer feasible. University of Michigan professor Leah Litman smelled something “rotten at the court” because the immunity case remained unresolved in mid-June, while the 14th Amendment case took about a month to decide. Never mind that with the latter, the court faced an external deadline in the form of Colorado’s March 5 primary. And never mind, too, that by its standards, the immunity case was expedited, going from district court judgment to Supreme Court opinion in exactly seven months. Normally, a case accepted in February wouldn’t be heard until the following term, which really would have put it beyond the election. The justices did move fast. Just not fast enough for the Left’s political expediency.

With a 2024 trial just about dead, some members of the legal resistance have begun putting their hopes in the idea that Chutkan could turn the hearings to determine which of Trump’s actions relating to Jan. 6 are immune into a kind of “mini trial” that will air his dirty laundry and fulfill the “vital function” of letting voters “learn more details about Trump’s alleged election interference,” as Norman Eisen, who served as counsel to the House’s first impeachment of Trump and is now arguably the most prominent member of the legal resistance, put it. Chutkan and the DOJ, protested Politico legal affairs writer Ankush Khardori, must “salvage whatever they can from this case before November and try to give the public the information and accountability that they deserve.” What the public deserves is a normative concern. It is a matter of politics, not law. If anything lacks a “basis in constitutional text, history or logic,” as Khardori said of the decision, it’s the belief that only placing Trump in the dock come September or October can vindicate some ineffable public right and spare it from harm.

“Donald Trump isn’t worth the Constitution,” I once saw a cable news pundit observe. He was talking about Trump’s supporters, who by his lights place Trump above the Constitution. But his words apply with equal force to Trump’s enemies, who regard him as utterly beneath it.

Seen from this perspective, granting Trump immunity was the only possible outcome in a small-C constitutional sense. Anything else would have destabilized the political order. Critics of the majority opinion, including the dissenters, scoffed at Roberts for worrying about the “prospect of an Executive Branch that cannibalizes itself” as each new president prosecutes his predecessor. Yet had he greenlighted Smith’s election interference charges as filed, that’s just what would have happened. There would have been no way to stop retaliatory prosecutions, as any future Republican administration would simply ignore a ruling saying it couldn’t prosecute a Democratic president after President Joe Biden was allowed to prosecute Trump. The vision of every ex-president becoming fair game for his replacement surely made the chief justice blanch. The genie would never go back in the bottle. Of course he would do everything to prevent its escape.

It’s not that members of the resistance couldn’t conceive of these concerns. They just didn’t care because their paramount goal was getting Trump, the Constitution be damned. Roberts, though, understood, even if they refused to, that Trump and Biden aren’t the only presidents and that other Democrats and other Republicans will occupy the Oval Office. The court, the chief justice wrote, “cannot afford to fixate exclusively, or even primarily, on present exigencies.” Thus, the majority attempted, as Justice Neil Gorsuch had pronounced during the oral argument, that the court must craft “a rule for the ages.”

Roberts is an institutionalist. He preserved many institutions with his opinion in the immunity case: the presidency, the courts, the Constitution. But by refusing to let the transfer of power turn, as Justice Samuel Alito had warned during the oral argument and Trump in his typically blundering way nearly achieved on Jan. 6, into a moment of existential peril for the nation, the institution he protected most of all was the republic itself.

The cadres of the legal resistance, among whom Smith is almost certainly to be counted, though he can never admit it publicly, made known, loudly and vociferously, their desire that Trump “face the music” before November. Perhaps if they had been less hungry, the Supreme Court would have been less determined to smite what Washington Post columnist Jason Willick aptly characterized as their “hubris and zealotry.”

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Roberts took one look at the legal resistance and launched it into the sun at the earliest opportunity. Such an unforgiving reception might, one would think, inspire some soul-searching. But if the legal resistance were capable of self-reflection, none of this would have happened in the first place.

With the civil trials and his Manhattan conviction having barely made a dent in his standing, and the rest of his criminal trials now stuck in deep freeze for the rest of 2024, and maybe forever, Trump has emerged bloodied but unbowed from the Left’s legal gantlet. As a consequence, what started as an effort to prevent his return to the White House may have all but ensured it.

Varad Mehta is a writer and historian. He lives in the Philadelphia area. Find him on X @varadmehta.