Yet, whatever Trump loses on larger constitutional grounds, he may gain in the
pure practicalities of avoiding to account for charges arising from the 2020 presidential contest before the 2024 election – a gift for Trump from the conservative Supreme Court.
The tenor of the arguments differed strikingly from the sentiment of lower court judges who’d previously heard Trump’s claim, as Roberts and the right wing concentrated on a former president’s potential exposure to retaliation by political opponents.
They avoided the particulars of the allegations against Trump, his rejection of the 2020 presidential election results, the efforts to organize alternate slate of electors and the January 6, 2021, US Capitol attack.
The DC Circuit US Court of Appeals had
highlighted all of the post-presidential election activity.
Roberts’ attention, however, was elsewhere. He said he found the appeals court opinion lacking in sufficient grounding, and he derided the unanimous panel decision as circular and tautological.
“As I read it, it says simply a former president can be prosecuted because he’s being prosecuted,” Roberts said.
Michael Dreeben, arguing on behalf of special counsel Jack Smith who brought the charges against Trump, countered with prosecutorial safeguards, including that allegations would be presented to a grand jury, which then votes on an indictment.
“Now you know how easy it is in many cases for a prosecutor to get a grand jury to bring an indictment,” Roberts rejoined with derision, “and reliance on the good faith of the prosecutor may not be enough in some cases.”
Roberts suggested the case be returned to the lower court for deeper legal grounding and possible determination of what of the Trump actions charged could be considered part of his official duties and which his private conduct