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    Chief justice Roberts pushed for quick immunity ruling in Trump’s favor – report

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    John Roberts Jr used his position as the US supreme court’s chief justice to urge his colleagues to rule quickly – and in favor – of Donald Trump ahead of the decision that granted him and other presidents immunity for official acts, according to a New York Times investigation published on Sunday.The new report provides details about what was happening behind the scenes in the country’s highest court during the three recent supreme court decisions centering on – and generally favoring – the Republican former president.Based on leaked memos, documentation of the proceedings, and interviews with court insiders, the Times report suggests that Roberts – who was appointed to the supreme court during Republican George W Bush’s presidency – took an unusually active role in the three cases in question. And he wrote the majority opinions on all three.In addition to the presidential immunity ruling, the decisions collectively barred states from removing any official – including Trump – from a federal ballot as well as declaring the government had overstepped with respect to obstruction of justice charges filed against participants of the 6 January 2021 attack that the former president’s supporters aimed at Congress.The Times reported that last February, Roberts sent a memo to his fellow supreme court justices regarding the criminal charges against Trump for attempting to overturn the result of the 2020 election that he lost to Joe Biden.In the leaked memo, the Times reported that he criticized a lower court decision that allowed the case to move forward – and he argued to the other justices that Trump was protected by presidential immunity. He reportedly said that the supreme court ought to hear the case and grant Trump greater protection from prosecution.“I think it likely that we will view the separation of powers analysis differently,” the Times said that Roberts wrote to the other supreme court justices in the private memo.According to the Times, some of the conservative justices wanted to delay the decision on the presidential immunity case until after Trump finished running for a second term in the White House in November. But Roberts advocated for an early hearing and decision – and ultimately wrote the majority opinion himself.Before the opinion and ruling went public, the Times reported that Justice Brett Kavanaugh had praised Roberts on the ruling, calling it “extraordinary”. Their fellow conservative justice Neil Gorsuch – who, like Kavanaugh, was appointed to the supreme court during Trump’s presidency – called it “remarkable”.The decision came out on 1 July and stated that former presidents are entitled to some degree of immunity from criminal prosecution. Both conservatives and liberals saw it as a huge win for Trump, who – among a spate of legal problems – is awaiting sentencing for a criminal conviction in May of falsifying business records to conceal hush-money payments to an adult film actor who alleged an extramarital sexual encounter with him.The supreme court then returned the case to district judge Tanya Chutkan, who is overseeing the federal case against Trump for allegedly participating in an illicit effort to reverse his defeat in the 2020 election. That left her tasked with having to figure out how to apply the US supreme court’s decision.The Times also reported that in the case about whether individual states could kick Trump off the ballot based on language in the US constitution which bars insurrections from holding office, Roberts told his colleagues that he wanted the decision to be unanimous and unsigned.All nine justices initially agreed that Trump should remain on state ballots. But then, the Times reports, four conservative justices suggested additions to the ruling, including proposing that Congress would have to approve enforcement of the insurrectionist ban in the constitution.skip past newsletter promotionafter newsletter promotionFour justices – liberals Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson and conservative Trump appointee Amy Coney Barrett – reportedly disagreed. They said they thought that went too far and wrote concurrences in disagreement, according to the Times.Ultimately, Roberts sided with the four remaining justices – fellow conservatives Kavanaugh, Gorsuch, Clarence Thomas and Samuel Alito Jr – in an opinion that he wrote and was issued unsigned.In the third case scrutinized by the Times, which involved the Capitol attack participants’ obstruction of justice charges, Roberts had originally assigned the writing of the majority opinion to Alito.But then in May, Roberts – in an unusual move – informed the court that he would write the opinion himself. The chief justice did that days after a scandal enveloped Alito in the wake of reports that his wife had flown an upside-down flag outside the couple’s home following the Capitol attack. Flying flags upside down, a universal sign of distress, has been associated with a movement that boosted Trump’s lies about the 2020 election being unduly stolen from him.The Times wrote that it was unclear whether there was a link between the flag scandal and Roberts’ decision to write the Capitol attack-related opinion, in which a 6-3 conservative majority found the federal government could not apply its obstruction of justice statute so broadly. The justices did not respond to the outlet’s request for comment. More

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      How the US supreme court shredded the Constitution and what can be done to repair it | Laurence H Tribe

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      On 1 July 2024, the US supreme court, after an unconscionable half-year delay that it laughably described as “expedited” treatment, handed down Trump v United States, the immunity ruling placing American presidents above the law by deeming the president a “branch of government … unlike anyone else.” The court’s delay guaranteed that Donald Trump would face the electorate in 2024 without first confronting a jury of his peers instructed to decide, and thus inform voters, whether he was guilty of trying to overthrow the 2020 election.Famously, the English immigrant Thomas Paine advocated that we revolt against the Crown to form an independent country and frame a constitution to prevent the rise of a dictator “who, laying hold of popular disquietudes, may collect together the desperate and the discontented … [and] sweep away the liberties of the continent like a deluge”. To that end, Paine asked: “Where … is the King of America?” And he replied: “In America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”In the court’s majority opinion, Chief Justice John G Roberts, Jr betrayed that promise and the Constitution that embodied it. He pretended that granting lifelong immunity from accountability to the nation’s criminal laws didn’t place the president “above the law”. In majestic circularity, he announced that the “President is not above the law” because it is the law itself that implicitly contains that immunity, to preserve “the basic structure of the Constitution from which that law derives”.But the idea that we need an unbounded chief executive to make the separation of powers work is grounded neither in theory nor in experience and contradicts the axioms of checks and balances. Worse still, the court’s decision delivers not a genuinely unbounded executive but one bound by whatever limits the court itself invents as it fills in the gray areas in its anything but black-and-white ruling. So it’s an imperial judiciary this court delivers in the guise of an imperial executive, not surprising for a court that just last week dismantled the administrative state by substituting itself for the panoply of expert executive agencies in Loper Bright Enterprises v Raimondo.The three dissenting justices objected, without rebuttal by the majority, that no prior president has needed this novel immunity from generally applicable criminal laws to operate as “an energetic, independent executive”, an objective the court placed above all else. The majority professed worry about “an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next”. But it said nothing to justify that worry – or to explain how the newly concocted less-than-absolute shield of presidential immunity could hope to solve the problem it conjured. After all, if we elect presidents unprincipled enough to direct their attorneys general to persecute their predecessors on trumped-up charges of abusing their official powers, there’s nothing to stop them from fabricating purely private – and, under the court’s new rule, non-immune – crimes by those predecessors.Beyond those glaring flaws in the majority’s reasoning, Roberts snidely accused the three dissenting justices of “fear mongering on the basis of extreme hypotheticals” that neither the majority opinion nor either of the two concurring opinions troubled to refute.What to make of the majority’s confusing instructions to the court trying Trump for the federal crimes through which he is alleged to have sought to overturn the 2020 election and the lawful transfer of power for the first time in our history? Only Justice Amy Coney Barrett, partly concurring and partly dissenting, wrote in no uncertain terms what the majority should have made clear but didn’t: “The President’s alleged attempt to organize alternative slates of electors … is private and therefore not entitled to protection … While Congress has a limited role in that process, see Art II, §1, cls 3-4, the President has none. In short, a President has no legal authority – and thus no official capacity – to influence how the States appoint their electors.” The majority should’ve endorsed Barrett’s brisk conclusion: “I see no plausible argument for barring prosecution of that alleged conduct.”The majority also offered no cogent reason to disagree with Barrett that, “beyond the limits afforded by executive privilege”, the US constitution doesn’t “limit the introduction of protected conduct as evidence in a criminal prosecution of a President”. As she and the three dissenters persuasively argued, the constitution “does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable” even if it does immunize them from prosecution on the basis of those circumstances. Bribery, a federal crime, makes the point perfectly. It’s nonsensical to hold, as the majority does, that a president who performs an official act like issuing a pardon in return for a bribe may be prosecuted for the bribe but may prevent the jury from learning about the backroom presidential conversations surrounding the pardon. The majority’s rejoinder that the pardon itself may be introduced in evidence as an official record is no answer at all.Indeed, the whole journey on which the majority embarks is misdirected. As dissenting Justice Ketanji Brown Jackson argued, it’s “cold comfort” to learn that “the President is subject to prosecution in his unofficial capacity … like anyone else”, because the “official-versus-unofficial act distinction” is both “arbitrary and irrational, for it … is when the President commits crimes using his unparalleled official powers that the risks of abuse and autocracy will be most dire”. She is right that vesting the president with uniquely sweeping powers and duties “actually underscores, rather than undermines, the grim stakes of setting the criminal law to the side when the President flexes these very powers”.I’ll let others sort through the tangled puzzles the court has left in its wake absent meaningful guidelines for distinguishing between the various categories of presidential conduct it enumerates. My main takeaways from this shameful decision are three: first, there is a compelling need for supreme court reform, including a plan to impose an enforceable ethics code and term limits and possibly create several added seats to offset the way Trump as president stacked the court to favor his Maga agenda; second, we should start planning for a constitutional amendment of the sort I have advocated in the New York Times to create a federal prosecutorial arm structurally independent of the presidency; and third, we need a constitutional amendment adding to Article I, Section 9’s ban on titles of nobility and foreign emoluments a provision expressly stating that nothing in the constitution may be construed to confer any immunity from criminal prosecution by reason of a defendant’s having held any office under the United States – and a provision forbidding use of the pardon power to encourage the person pardoned to commit a crime that the president is unable to commit personally.Amending the constitution to address problems the supreme court creates needn’t take long. When the court prevented Congress from lowering the voting age to 18 in state along with federal elections in Oregon v Mitchell, it took under seven months for us to adopt the 26th amendment to repair that blunder. And the court can overturn its own egregiously wrong decisions quickly, as it did in 1943 when it overturned a 1940 ruling letting states force children to salute the flag against their religious convictions in West Virginia State Board of Education v Barnette. As Justice Felix Frankfurter once wrote: “Wisdom too often never comes, so one ought not to reject it merely because it comes late.” Trump v United States isn’t just unwise. It’s a betrayal of the constitution. Overturning it should be an issue in this November’s election.
      Laurence H Tribe is the Carl M Loeb University professor and professor of constitutional law at Harvard Law School More

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      The Guardian view on Trump and presidential immunity: the return of the king | Editorial

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      The supreme court’s ruling on presidential immunity combines a tectonic constitutional shift and immediate political repercussions to devastating effect. It allows one man to stand above the law. It slows and appears to gut the 2020 election-subversion case against Donald Trump, though it does not necessarily end it. No one believes a trial can be held before November’s election, although court hearings could still offer a detailed airing of the evidence this autumn.There could hardly have been a better week for Mr Trump, who saw his rival stumble so badly in last Thursday’s debate that Joe Biden faces growing calls to quit four months from election day. Anyone who doubts how consequential a second Trump administration term would be for the United States and the world need only look to the supreme court, now ruled by a conservative supermajority thanks to three Trump-appointed justices.Monday’s majority ruling, penned by Chief Justice John Roberts, is a disingenuous, bloodless discussion which pompously warns that “we cannot afford to fixate exclusively, or even primarily, on present exigencies”. The minority opinion, written by Justice Sonia Sotomayor, is screaming to the people to wake up: the city on a hill is on fire. A twice-impeached convicted felon who attempted to overturn the people’s verdict, reveres authoritarians and pledges to be a dictator (only “on day one”) could soon be re-elected. This is not about exigencies; this is an emergency.Justice Sotomayor outlined the new limits for a president: “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organises a military coup to hold on to power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune … In every use of official power, the president is now a king above the law.”The court’s ruling grants complete immunity from criminal prosecution to core presidential powers. But it also grants presumptive immunity to other “official acts” – and these are extraordinarily widely drawn. Pressuring Mike Pence not to certify the 2020 election results would probably enjoy immunity, Chief Justice Roberts writes, because if the president and vice-president are discussing official duties, this is official conduct; and presiding over the results is a constitutional responsibility of the vice-president.The bar for overturning presumption looks sky-high, as Justice Sotomayor notes – doing so must pose no danger of intrusion whatsoever on presidential authority. The president’s motives cannot be examined. Nor can official acts be used in criminal cases relating to unofficial acts. The resulting scope is so great that any politician or official would surely balk at granting it to the other side – unless they were certain they could hold on to power indefinitely.This ruling will almost certainly, as it should, further lower declining support for a court now mired in scandal, thanks to the Republican-appointed Clarence Thomas and Samuel Alito. Other majority rulings in recent days have delivered a major blow to the regulatory powers of federal agencies and, extraordinarily, said that officials can accept cash or gifts from people they have assisted: they only count as bribes if given before the favour. This is a court for the rich and powerful, and it is making them more so. The founders intended the supreme court to be part of the solution to the tyranny of European kings. Mr Trump, and the court’s conservative justices, have made it part of the problem. More

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      The US supreme court just completed Trump’s January 6 coup attempt | Rebecca Solnit

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      The violent attack on Congress on 6 January 2021, and all the ancillary attempts to steal the 2020 election, were a coup attempt led from the executive branch of the federal government with support from Republicans in the legislative branch. 1 July 2024 – this Thursday – was a more successful coup attempt orchestrated by six judges of the judicial branch.“With fear for our democracy, I dissent,” wrote Justice Sonia Sotomayor in an opinion joined by justices Ketanji Brown Jackson and Elena Kagan, after the US supreme court’s conservative majority ruled that Donald Trump holds “absolute immunity” for “official acts” done while president. Part of what’s shocking about the state of the union right now is that an entire party and the US supreme court’s conservative majority have abandoned almost everything – the truth, the rule of law, their own legitimacy, their place in history and the fate of the nation – to serve one man.They could not have picked a more outrageous man to throw their weight and reputations behind – a psychotic clown who’s also an indicted felon found liable in civil court for sexual assault, barred from doing business in New York, a stealer of state secrets, a would-be thief of an election and the instigator of a violent attack on the legislative branch of government and the constitutionally mandated transition of power after an election. A grifter who in 2016 won a minority victory in a corrupted election – his conviction earlier this year was on charges for one small part of that corruption. A man who has gloated about seizing dictatorial powers and never letting go and a worshiper of tyrants denounced by dozens of his former cabinet members and senior staffers.January 6 was an attack on the constitution and so was 1 July. That no one is above the law has been a pillar of this nation and a cherished value since the 18th century; to knock it down in the 21st destabilizes structures and values that have stood these two centuries and more. A president with total immunity poses obvious threats to the rule of law, the balance of powers and democracy itself, and if that president is the vindictive criminal on the Republican ticket the dangers are immediate and obvious.The day before this ruling Trump approvingly shared a post on his own social media platform calling for Liz Cheney, the former Republican congresswoman, to be tried in a televised military tribunal – for boldly opposing his coup attempt and being one of the few members of their party to support his impeachment. She committed no crimes and the military has no jurisdiction over her, but under Trumpism there are no laws, just opportunities.The people I talked to and saw on social media were stunned, horrified, uncertain of what we do next. When the agency that is supposed to be the final authority on the rule of law becomes lawless, what do you do? There is much we can do, and much of it will be new kinds of campaigns with new goals, because we are in unprecedented territory.While a lot of elected officials seemed immobilized by this much-anticipated legal ruling, Alexandria Ocasio-Cortez, the representative, vowed to introduce legislation to impeach some supreme court justices – she didn’t say which ones, but it seems likely that Samuel Alito and Clarence Thomas top her list. The Politicus newsletter notes that the senator Sheldon Whitehouse, a Democrat from Rhode Island, “has been one of the few members of Congress who has consistently sounded the alarm about Supreme Court corruption for years, and he isn’t letting the Senate’s limitations stop him from planning a massive investigation” of the supreme court.Of course this has been brewing for a long time. Before these decisions were handed down, journalists were reporting on the Alito household flying apparently pro-insurrection flags in open defiance of norms of judicial neutrality and on more illicit gifts Thomas had taken. Thomas’s wife was an eager participant in the January 6 coup attempt and all the back-room machinations around it; he and Alito were obliged by all norms and ethical principles to recuse themselves from Thursday’s decision, aptly titled Trump v United States, but of course did not.That was just part of the supreme court majority’s rampage this summer. As Nation legal correspondent Elie Mystal wrote a few days before, of the ruling that is devastating for environmental protection and science-based policy: “In the biggest judicial power grab since 1803, the Supreme Court today overruled Chevron v Natural Resources Defense Council, a 1984 case that instructed the judiciary to defer to the president and the president’s experts in executive agencies when determining how best to enforce laws passed by Congress. In so doing, the court gave itself nearly unlimited power over the administrative state and its regulatory agencies. The US Constitution, flawed though it is, has already answered the question of who gets to decide how to enforce our laws. The Constitution says, quite clearly, that Congress passes laws and the president enforces them. The Supreme Court, constitutionally speaking, has no role.” Until now.Then came Monday’s bigger judicial power grab, because as another legal pundit, Asha Rangappa pointed out, in saying official presidential acts were above the law, the court “has made itself the ultimate umpire of what is ‘official’ or ‘not official,’ thereby giving itself power to determine which prosecutions are warranted and which aren’t. Basically, they’ve made themselves, not POTUS, the kings here.” Mystal tweeted, “I mean, at a core level, listening to us lawyers is of no more use here. We are beyond ‘law.’ We are beyond principles we studied or researched” while sharing her fellow law journalist Dahlia Lithwick’s declaration, “As an official representative of the legal commentariat I want to suggest that tonight’s a good news cycle to talk to the fascism and authoritarianism experts. This is their inning now…”We do have fascism and authoritarianism experts, who are often also scholars of civil society resistance and the ways dictatorial regimes can be resisted and toppled. And we do know that this is a time when civil society participation will be crucial. First of all to make sure a Democrat takes the White House in November; from that victory much can be restored. If Trump wins, the pieces of the coup will cohere into not the end of democracy in America but at least its kidnapping and torture by its enemies.There are remedies within the legislative process and the rule of law to some of this. But we will only get them with massive public participation. Civil society must press the case that this court is fatally illegitimate and Roberts, Alito and Thomas must resign. And we must press our legislators to act. Other countries have survived worse, and most of the countries to the south of the US have been through revolutions, coups, dictatorships and other dramas in the past century, as well as successful non-violent resistance and democratic triumphs.One thing is clear after this epochal supreme court decision: the fate of the country is in the hands of its people. Or rather two things are clear: the rightwing pursuit of increasingly outrageous minority rule is because they are increasingly a minority; the will of the people and the majority of votes are not on their side when it comes to everything from reproductive rights to climate action. Which is why they have to suppress votes, gerrymander districts, try to steal elections and now torch the constitution. In one way, this demonstrates their strength. In another, their weakness. It’s up to us to make that weakness matter more than that strength.
      Rebecca Solnit is a Guardian US columnist. She is the author of Orwell’s Roses and co-editor with Thelma Young Lutunatabua of the climate anthology Not Too Late: Changing the Climate Story from Despair to Possibility More