John Roberts embraces Donald Trump's vision of the presidency

CNN —

Chief Justice John Roberts is so enamored with the image of a bold, fearless American president that he has abandoned his usual restraint and declared a stunning level of immunity for a former president facing criminal indictment for trying to overturn an election.

The man who compared judges to umpires who simply call balls and strikes, to borrow a baseball cliché, struck hard. Roberts broadly interpreted the constitutional protection afforded to any president who might be indicted and all but ensured that former President Donald Trump will escape trial for subverting the 2020 election before the 2024 presidential election.

Emphasizing the unparalleled gravity of presidential responsibilities and embracing the term fearlessly, Roberts said a president makes the most sensitive and profound decisions entrusted to a public servant and must be granted the maximum ability to discharge his duties fearlessly and impartially.

Flanked by five of his fellow Republican-appointed justices (including three appointed by Trump himself), Roberts has taken an unflinching view of presidential immunity, his traditional respect for the stature of the judiciary eclipsed by an aspiration for the institution of the presidency.

Roberts is generally concerned with these overtly political divisions. He generally takes a more institutional and judicial approach. He is also aware that in the previous major separation of powers disputes, United States v. Nixon in 1974 and Clinton v. Jones in 1997, the justices ruled unanimously and both times against a sitting president.

In these cases, the judges voted against the interests of the president who appointed them.

But this is not that court.

And today's Roberts bears little resemblance to the chief justice known for brokering compromises in politically sensitive disputes, including upholding Barack Obama's Affordable Care Act just months before the 2012 presidential election.

The current bench reflects the country’s deep political polarization. While Roberts downplayed the chaos Trump propagated after the 2020 election, the dissenting justices highlighted it. More concretely, they said Roberts’ single-minded fixation on the president’s need for boldness and speed defied constitutional history and relevant past cases.

In turn, Roberts ridiculed the three liberal dissidents, saying they displayed a tone of frightening doom.

There was a time when Roberts went to great lengths to suggest his disapproval of the norm-busting Trump, even publicly refuting the former president’s attacks on the judiciary. But on Monday, Roberts provided a cold distillation of the events leading up to the Jan. 6, 2021, storming of the U.S. Capitol and avoided any reference to the former president.

Roberts, who served in the administrations of Ronald Reagan and George H.W. Bush, has a history of favoring executive branch prerogatives.

The resolution of Trump v. United States, however, is more sweeping and likely to define Roberts' broader legacy as chief justice.

Appointed by President George W. Bush, Roberts will begin his 20th term as Council president in October.

On Monday, as the 69-year-old chief justice read excerpts from his opinion from the bench, he used some of the most dramatic lines of his written opinion, arguing that if newly elected presidents were free to prosecute their predecessors, the result would be an executive branch that cannibalized itself.

Roberts said that under the cover of potential prosecution, a president would be reluctant to make decisions fearlessly and fairly and would be rendered essentially ineffective. The president, he wrote, must be protected from prosecution for any essential constitutional power and be entitled, at a minimum, to presumptive immunity from prosecution for all his official acts.

The courts’ new presumptive immunity gives Trump a substantial victory at this stage of the lengthy proceedings brought by Justice Department special counsel Jack Smith. Last August, Smith indicted Trump on various counts of conspiracy, fraud and obstruction for the activities that culminated on January 6.

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Justice Sonia Sotomayor, speaking for the dissent, ratcheted up her rhetoric, condemning the majority for favoring Trump in a way that reshapes the institution of the presidency and makes a mockery of the principle that no man is above the law.

Her voice expressed disdain, as when she mocked Roberts' references to the bold, unhesitating action required of an independent leader.

In one of her particularly impassioned speeches, the senior liberal justice told the audience that the majority had granted Trump all the immunity he had requested and more.

Among the guests in the VIP section of the courthouse, near the bench, was Jane Sullivan Roberts, the chief justice's wife. In the lawyers' section was Michael Dreeben, the Justice Department lawyer who argued on Smith's behalf in April and who will now, with the special counsel team, determine what to do next.

(Roberts and Dreeben have a long history. Before becoming a justice, Roberts was an appellate lawyer. In his first case before the Supreme Court, in January 1989, he faced Dreeben, then an assistant attorney general. Roberts won.)

The case will return to Judge Tanya Chutkan, who previously rejected Trump’s request for immunity, to determine what activities Trump engaged in during his protest of the 2020 election results could be considered unofficial and subject to criminal prosecution. Trump had previously argued that virtually all of his activities surrounding the 2020 election were official actions and protected from criminal prosecution.

Defensive of Supreme Court's handling of case

As he turned away from Trump, the person who brought the case, Roberts insisted that broad presidential immunity protects the institution of the presidency, not an individual president.

But those assertions were subtly mixed with defensiveness about how the courts have handled the Trump controversy. He said the justices had little relevant precedent to guide their review of the case, a case that we are deciding on an expedited basis, less than five months after accepting the government's request to take up the issue.

But the majority, in a one-sentence order issued last December, rejected Smith's request to hear the issue of consequential immunity earlier. The court has not scheduled oral arguments until late April.

In early December, Chutkan had ruled that Trump had no immunity from criminal prosecution. Whatever immunities a sitting president enjoys, the United States has only one chief executive at a time, and that position does not provide a free pass from life in prison, she wrote.

The U.S. Court of Appeals for the District of Columbia affirmed, writing: “For purposes of this criminal case, former President Trump has become a Trump citizen, with all the defenses of any other criminal defendant. But any executive immunity that might have protected him while he was President no longer protects him from this prosecution.”

Endorsing this view, Sotomayor recalled how it all began.

In a last desperate ploy to hold on to power, she wrote, Trump allegedly tried to exploit the violence and chaos at the Capitol by pressuring lawmakers to delay certification of the election and ultimately declare him the winner. It is in this context that this case is before the Court.

Not for the Chief Justice.

Unlike political powers and the general public, he said, we cannot afford to focus exclusively, or even primarily, on the demands of the present.

Roberts wrote: “Our perspective must be more clear-sighted.”

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