Chief Justice John Roberts Walks Into Nuremberg, the Film…
The Chief Justice gets a message from beyond the grave
“We are able to do away with domestic tyranny … only when we make all men answerable to law.”
–Chief Nuremberg prosecutor Robert H. Jackson
This past weekend Supreme Court Chief Justice John Roberts and his wife attended a screening of the new film “Nuremberg,” about the trials of Nazi leaders and soldiers for war crimes. It must have been awkward – for some in that audience – when the actor Michael Shannon recited part of American prosecutor (and Supreme Court Justice) Robert H. Jackson’s opening statement about the rule of law at the trial of Hermann Göring.
But that is precisely what Roberts severed from our Constitution when he orchestrated the counter-constitutional pronouncement 17 months ago giving Donald Trump immunity and paving the way for his return to power.
It was Roberts and the recklessly partisan majority of Republican appointees on the Court he leads who made the shocking announcement that Trump was immune from criminal prosecution after he was indicted for his actions around trying to subvert the election after he incited the January 6 insurrection – a rebellion against the government, otherwise known as “sedition,” though he was not charged with that crime. The four charges included conspiring to defraud the United States and conspiring against our civil rights. Roberts’s unprecedented edict invented immunity for Trump after he unleashed a violent crowd on the Capitol determined to stop Vice President Mike Pence from certifying the results of the 2020 election, by asserting among other things: “If you don’t fight like hell you’re not going to have a country anymore!”
The bloody and deadly events that day did not succeed, despite acting Secretary of Defense Chris Miller–at Trump’s request–ordering the National Guard not to be armed with batons, helmets, or body armor, and in spite of Miller holding them back from aiding the Capitol Police for hours that day. As noted by the United States House Select Committee to Investigate the January 6th Attack on the United States Capitol, MIller “did not approve an operational plan to deploy the National Guard to the Capitol until 4:32 p.m., more than three hours after he first learned that demonstrators had breached the Capitol perimeter. The National Guard did not arrive at the Capitol for another hour, at nearly 5:30.”
It is impossible to read history and not hear it rhyme with the notorious Beer Hall Putsch that happened almost 100 years before Trump’s failed coup.
But that’s not all: The Roberts Six have propped up its keystone declaration that Trump has immunity with a series of other rulings that are creating a gateway for authoritarianism to barrel into the United States. Since January, Roberts and his Republican cohorts have issued 24 extraordinary orders mowing down trial court rulings that sought to protect people in the United States from irreparable harm caused by Trump’s unilateral dictates.
That deliberate and aggressive intervention by Roberts and his fraternal party-line quintuplets on the nation’s highest court has further emboldened Trump. He has unleashed his version of secretive state police (what could be called “Geheimnisvoll Staatspolizei” or “gev-stapo” instead of the secret original “geheimnis” ones, which was shortened to “gestapo”). It is now common for his agents, with guns, to accost people while hiding their faces, their names, and their units – with no probable cause of any crimes.
Where are we on the timeline? The good news, relatively, is that it’s more like 1933 than 1938, but that’s not great. However, we are pre-Holocaust and we are, at this moment, pre-invasion of other nations. The future is yet unwritten, and We the People still have the power to help write our destiny.
But it is worth acknowledging that, as the publishers of “The Law in Nazi Germany: Ideology, Opportunism, and the Perversion of Justice” detailed:
“While we often tend to think of the Third Reich as a zone of lawlessness, the Nazi dictatorship and its policies of persecution rested on a legal foundation set in place and maintained by judges, lawyers, and civil servants trained in the law. … [I]ntelligent and well-educated legal professionals lent their skills and knowledge to a system of oppression and domination…. [T]heir support of the regime resulted from a combination of ideological conviction, careerist opportunism, and legalistic self delusion….”
As Michael Luttig told me in a recent interview on Legal AF, the emergency docket rulings of the Roberts Court this year are “illegitimate.” Between those actions and Trump’s we are seeing a growing divergence of law from justice, after years of progress to draw these two values closer together.
The most troubling recent example of this divergence is Trump asserting six Democratic members of Congress should be “hanged” for “SEDITIOUS BEHAVIOR, punishable by DEATH!” because they appeared in a video stating that the military cannot follow illegal orders. Actually, federal law (18 U.S.C. section 115) makes it a crime to threaten a federal official with murder for doing their job, which includes protecting the U.S. Constitution. If a regular American – who was not given immunity for so-called “official acts” or words by Roberts – did such a thing, the Secret Service would investigate them and they could face up to 10 years in jail.
One of the main takeaways from the Nuremberg trials is, in fact, that soldiers cannot take plainly illegal action with impunity by claiming they were just following orders. The Nuremberg charter, which the United States co-authored, specified that “the fact that a defendant acted pursuant to an order of his Government or of a superior shall not free him from responsibility.”
The Code of Military Justice reflects that principle, too, along with its corollary, which is that a soldier can be court-martialed for refusing to follow a lawful order. This tenet is not new: In America it dates back to at least the War of 1812, when circuit judge George Washington (our first president’s nephew) found that “No military or civil officer can condemn an inferior to violate the laws of his country; nor will such command excuse, much less justify the act.”
The fact that our military does not take a loyalty oath to a person but pledges to defend our Constitution is not just emblazoned on a plaque at West Point, a photo of which Trump unironically posted: “Our American code of military obedience requires that should orders and the law ever conflict, our officers must obey the law.” That is the law of the land.
This should be uncontroversial, but Trump’s FBI has opened an “inquiry” into the six lawmakers, and Pete Hegseth’s agents are probing Sen. Mark Kelly (D-AZ), a decorated combat veteran, for potential court-martial. This all calls to mind Montesquieu, whose writings about law and power profoundly influenced the framers of the Constitution and who wrote that: “There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.”
As I noted in my book, Without Precedent, “Whatever extremes Trump pursues in 2025 and beyond, these sins must fall at Roberts’s feet too. Roberts broke the central pillar upon which our Constitution is built: The American president is not a king.” He is not to be a dictator, either.
But all is not lost. We still have the power to make our voices heard.
This Thanksgiving week and beyond, I am so grateful for the tremendous efforts in state after state to get out the vote earlier this month, and to use the ballot to take a stand against the extremes we are seeing. The No Kings marches, with their peaceful solidarity and love for the ideals of our nation, bring me enormous hope–along with the often humorous and joyful community actions outside detention facilities. And, I am awed by the thousands of individual acts of courage in speaking up or recording injustices, along with the countless beautiful acts of neighbors helping neighbors. Plus, the power of organic economic boycotts, like the successful outcry against Disney over firing Jimmy Kimmel, have been so inspiring.
We have a lot of work to do together in the months ahead to broaden our connections with one another, make our communities more resilient, and help make our nation a better and more just place. Together, we really can help bend the arc of history toward justice and freedom and fairness, if only we do not give up. Hope is a choice we must renew every day. Every. Single. Day.
What I’m Reading:
Actually, this week I am focusing less on reading and more on the music that makes my heart sing, including:
Splendid jazz riffs from Bruce Henry, who I just saw in concert, on songs like this, “In the Beginning God,” ““House of the Rising Sun,” and ”Song for My Father”
The amazing Dezy Walls’s original music, such as “Don’t Hide Your Love,” “It Never Rains in Ireland,” and “Love Is”
I admit it: I’m a Swifty. Whenever I need to shake off something irritating I play this song: “Shake It Off.”
And, I love funny songs. This quirky, animated one sung by Jemaine Clement and Kristin Chenoweth is one of my favorites (although I love the original version, too): “I Will Survive.”
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Thank you for all of this. The history, the law, the current news, the explanations, the personal notes-- wow!
I'm so grateful to get to learn from you, yet again. As a former history major and a very informal law student, I am deeply inspired by your willingness to stand for justice, call out the injustice, and do both with deep conviction and obvious compassion.
Lisa - Coincidently, I have been reading your fabulous book. "Without Precedent: How Chief Justice Roberts & his accomplices rewrote the Constitution & dismantled our rights." Like many Americans, including your former boss, Senator Leahy, who later deeply regretted voting to confirm Roberts, I fell for Roberts remarks that he would be an impartial judge "to call balls and strikes, and not to pitch or bat." (Liar!) Clearly, those remarks cloaked Roberts long game which, through his actions, have greatly weakened our system of checks & balances. Reading your book has helped me put some of the jigsaw puzzle pieces of the past in place for me. Thank you! I am grateful it is "only" 1933 today. However, we do have so much more we need to do at so many fronts to rein in and remove this autocratic regime.