Despite how it may seem when initially reading his disastrous decision in Trump v. United States, Chief Justice John Roberts didn’t give former President Donald Trump everything that he’d asked for in his immunity case. Roberts notably didn’t agree that Trump’s acquittal in an impeachment trial means he can’t be prosecuted in criminal court. However, because we can’t have nice things, in refusing one plea from Trump, Roberts instead granted him an even more powerful shield from accountability.
In refusing one plea from Trump, Roberts instead granted him an even more powerful shield from accountability.
Trump’s lawyers’ theory of “presidential immunity” — which seemed deeply implausible until it was affirmed by the Supreme Court — drew on several sources to claim Trump couldn’t be prosecuted over his attempt to reverse the 2020 election’s results. One of the most ludicrous reasons (and there were several) was based on an especially poor reading of the Constitution’s impeachment judgment clause.
Article I, Section 3, which deals with the possible sentences for impeachment convictions, dictates that “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” It was meant to be a contrast to the Senate’s limited punishments for convicted officials: removal from office and potentially then barring them from holding a future office. Those former officials would then be subject to prosecution over whatever applicable crimes they might have committed that got them impeached.
Trump’s team chose to read that clause completely backward and argued that the Senate vote to acquit Trump in 2021 during his second impeachment trial meant he couldn’t be criminally tried over the same alleged behavior. In other words, a former president could only be charged in a criminal court if he’d first been found guilty in an impeachment proceeding.
That claim bore almost no relationship with reality, let alone how English works. It also completely contradicted the arguments Trump’s defense team made during that impeachment trial, when it claimed that only the criminal justice system could convict a former president.
Fortunately, Roberts’ opinion threw out that theory in its entirety:
The implication of Trump’s theory is that a President who evades impeachment for one reason or another during his term in office can never be held accountable for his criminal acts in the ordinary course of law. So if a President manages to conceal certain crimes throughout his Presidency, or if Congress is unable to muster the political will to impeach the President for his crimes, then they must forever remain impervious to prosecution. Impeachment is a political process by which Congress can remove a President who has committed “Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, §4. Transforming that political process into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of our Government.
In addressing the matter with such directness, Roberts’ opinion shuts the door on Trump making a similar claim in other proceedings. He’d already tried to do so in a motion to dismiss the classified documents case against him in southern Florida, which is still awaiting a final ruling from Judge Aileen Cannon.
The problem is Roberts has managed to make utilizing that clause a near impossibility, going beyond even what Trump’s lawyers had argued. Trump lawyer John Sauer argued that an impeachment conviction was the only way to break the immunity that “official acts” confer. Roberts, in all his wisdom, says not even an impeachment conviction is enough to allow for an act taken as an “exercise of his core constitutional powers” to be prosecuted. It’s true that, unlike in Sauer’s framing, a Senate conviction isn’t a prerequisite to prosecute other official acts, those on the “outer perimeter” of the president’s job, or “unofficial conduct” that the president undertook while in office. But the former receives presumptive immunity, which it is the job of the prosecutors to overcome. Thanks to Roberts, they’ll have to do so with their hands absurdly tied, as the ruling says they can’t use the president’s motives to sort out whether an act was official or not. Furthermore, while Trump’s impeachment judgment clause argument is now moot, the decision added some credence to the other points made in Trump’s motion to dismiss the Mar-a-Lago case. It’s a major stretch to claim that his refusal to hand over subpoenaed documents as a private citizen, and allegedly misleading the Justice Department in the process, could possibly count as an “official act” undertaken by the president. But Trump’s lawyers were already arguing as much even before Roberts loaded them up with ammunition. Given Cannon’s indecisiveness, you can bet there’ll be at least a hearing or two to sort through this — and there’s no guarantee that whatever her decision is won’t go back up to the Supreme Court. While Trump’s impeachment judgment clause argument is now moot, the decision added some credence to the other points made in Trump’s motion to dismiss the Mar-a-Lago case. As Akhil Reed Amar noted in The Atlantic, the Roberts immunity ruling “turns the Constitution’s text and structure inside out and upside down, saying things that are flatly contradicted by the document’s unambiguous letter and obvious spirit.” Not even the sole bright spot in Roberts’ legal analysis is able to stand in the face of the carnage that the rest of the opinion does against the supreme law of the land. It’s horrifying to realize that there’s no crime that two-thirds of the Senate would convict Trump of committing in a second term, and no way to do so in criminal court should he ever leave office again.
Hayes Brown is a writer and editor for MS NOW Daily. 
