John Roberts Supersized Trump’s Power over DOJ, Fueling the Fulton County Raid and Other Wreckage
Trump’s dark desires to prosecute his enemies are abetted by his appointees–and by the Roberts Court
“I can’t believe … you think [it]’s normal or good that one person can dictate who the Department of Justice investigates and indicts,” the moderator of the American Bar Association’s “Rule of Law” panel recently said in response to remarks by John Lauro. Lauro, who represented Donald Trump after he was indicted for criminal interference in the 2020 election, replied: “That’s what the Supreme Court said,” referring to John Roberts’ opinion in the hyper-partisan ruling that invented criminal immunity for Trump.
It is neither normal nor good for a president to dictate DOJ investigations. But that is exactly what is happening in the aftermath of the reckless edict Roberts orchestrated for the leader of the political party that elevated him to Chief Justice.
While presidents can set broad policies for DOJ–such as prioritizing the prevention of school shootings–no president since Richard Nixon has sought to abuse the Department of Justice to protect himself from prosecution or to go after his enemies, until Trump. For decades, DOJ guidelines have required impartiality and the insulation of prosecutorial decisions from political influence, as Sarah Wilson noted in a Miller Center report. Since 1939, for example, the Hatch Act has also barred federal employees from using their official authority or influence to interfere with elections. That law and related guardrails have long been reinforced in DOJ and White House policies and memoranda.
Yet Lauro, enabling his former client’s self-victimization, contends that no one has been more “abused” by the criminal justice system than Trump– a risible talking point that was recently reiterated by another one of Trump’s former criminal defense lawyers: Acting Attorney General Todd Blanche.
In his first press conference after Pam Bondi’s firing, Blanche blithely defended Trump’s directives to prosecute his political enemies, going as far as to claim: “That is his right, and indeed it is his duty to do that, meaning to lead this country.” Blanche insisted that the only thing keeping him up at night was not Trump’s demands, but the need to “investigate every case that we have to the fullest extent of the law.”
Blanche also repeated Trump’s discredited claims about the “weaponization” of DOJ, ignoring that neither President Joe Biden nor Attorney General Merrick Garland pushed for a criminal investigation into his activities. Instead, Garland belatedly appointed a special counsel, under long-standing DOJ regulations, to independently investigate January 6 and Trump’s stealing away of classified documents. That independent review process has been used repeatedly by DOJ in order to avoid the politicization of prosecution decisions.
Blanche even had the audacity to dismiss reporting that Trump “wants to go after his political enemies” as “completely false,” framing the president’s demands as merely the pursuit of “justice”–which is a highly disturbing way of describing the very thing he claims to not be doing. Blanche, who is seemingly auditioning for the official job of Attorney General, also glorified the removal of federal prosecutors involved in the lawful investigations of Trump because–and get this–he claimed:
If you were a prosecutor and you were trying to prosecute your boss, you have ethical duties as a lawyer that I think prevent you from continuing to work in that environment. And … you had prosecutors that were absolutely not doing the right thing. And so, none of those prosecutors ... I hope everybody agrees that they shouldn’t work here if you’re not doing the right thing.
There is no such duty not to prosecute your boss if your boss is a criminal and your job is to prosecute criminals. Such a claim should be disqualifying for any DOJ appointee.
But the related reality is that John Roberts has made this disaster possible. By orchestrating a counter-constitutional ruling blocking Trump’s criminal prosecution, he effectively pardoned Trump and paved the way for his return to power, as I discuss in my new book, Without Precedent.
That illegitimate edict is also enabling Trump’s DOJ appointees to revive his debunked lies about supposed voter fraud in the 2020 election. In Georgia, for example, Blanche and Bondi’s handpicked prosecutor has apparently been working closely with Trump loyalists/conspiracy theorists to assail the election results in Fulton County, even though the five million votes cast there have been counted, re-counted, and counted again–as Republican Secretary of State Brad Raffensperger has repeatedly attested.
Trump lost.
Nevertheless, at his behest, the FBI seized hundreds of pallets of ballots based on claims that they were not retained for 22 months as required by law, despite plain evidence that they were retained for more than five years. These facts did not prevent the issuance of an indictment for a supposed crime that would be beyond the statute of limitations even if proven. Plus, as Fulton County’s lawsuit challenging the seizure notes: the Trump administration did not tell the judicial officer who signed off that they were relying significantly on witnesses whose claims had been previously discredited.
None of this is normal or should be normalized.
But the broader responsibility lies with Roberts’ counter-constitutional immunity ruling, which asserted that presidential control over prosecutions is “conclusive and preclusive.” Roberts took that phrase out of context from a case where the Supreme Court ruled against President Truman in his attempt to control the production of American steel mills (it had nothing to do with prosecutions). Roberts wielded that phrase more than 20 times in his destructive opinion, as if repetition were a magical incantation that would transform his political assertions into an ironclad truth.
In that edict, Roberts claimed that because the Executive Branch has “exclusive authority and absolute discretion” over which crimes to investigate and prosecute, including alleged election crimes, the president can dictate who to prosecute. In shutting down special counsel Jack Smith’s prosecution of the grand jury’s charges against Trump, Roberts claimed that the “indictment’s allegations that the requested investigations were shams or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.”
Those judicially-concocted claims–plus Trump’s vendettas and disproven lies–are precisely why we are now contending with a DOJ acting like it can do his bidding without facing any adverse consequences. The Republican-led Senate is also to blame for stupidly and cravenly confirming Trump’s defense attorneys to DOJ positions of power.
This crisis we are in has many authors, but Roberts and Trump are central players in the felling of vital, long-standing constraints on the abuse of prosecutorial power.
A reckoning must eventually come, but meanwhile we are living through the wreckage John Roberts has unleashed on America.
What I’m Reading:
Injustice: How Politics and Fear Vanquished America’s Justice Department by Carol Leonnig and Aaron Davis
This is a must-read report from investigative reporters examining how DOJ has failed to protect our democracy.
Every time I read John Roberts’ claims in this ruling I am more and more appalled at how deeply destructive and outrageously arrogant it is in its destruction of the rule of law in America.
And, of course, the U.S. Constitution.
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All of this will be on that pompous white man ! In the white man club doing dirty deeds . I hope he realizes what he’s unleashed on this country . He should be held in front of a court or disbarred.
Hard to underestimate the damage done by John Roberts, a true judicial wrecking ball. Citizens United, presidential immunity, at least two of the worst decisions in the history of the high court.