Justice Roberts Subverted the Separation of Powers and Created a Dangerously Unaccountable President

The court's immunity ruling will make it hard to punish Trump for his past lawlessness, while inviting future abuses

(Credit: John Roberts (Rob Crandall), Donald Trump (Yahor Pakhantsau), Montesquieu (Prachaya Roekdeethaweesab), Shutterstock.) Montage: The UnPopulist.

The Supreme Court decision in Trump v. United States has invented a doctrine of immunity that shields abuses of presidential power from criminal prosecution. In doing so, it has accomplished a constitutionally corrosive hat trick: It has helped Donald Trump, a presidential candidate contemptuous of constitutional barriers, personally; it has legitimized the unconstitutional ideological projects Trump pursued in his first presidential term; and it has advanced the self-empowering projects Trump plans to pursue if he wins a second. The constitutional transformation that Trump began, Chief Justice John Roberts, writing for the Court’s majority, has accelerated. Personal criminal impunity is of a piece with Trump’s past and prospective future agenda of evading constitutional constraints and legal accountability—of an executive power that obeys no rules except the president’s own will.

Perversely, Roberts dignifies his conclusions by invoking the “separation of powers.” The decision instead represents a fundamental subversion of that principle, which centrally involves holding the executive to lawful account and ensuring that the prosecutorial powers of the state are not used for his or her personal political convenience.

Such abuse is precisely what the court’s immunity holding allows—and what a second Trump presidency, even more so now than before the court ruled, would promise.

Misconstruing the ‘Separation of Powers’

In the court’s decision, its conservative majority claims to reinforce basic constitutional principles. Indeed, Roberts’ majority opinion is soaked in the language of the separation of powers. In considering the extent of a president’s potential immunity from criminal prosecution, he writes, “To resolve the matter, therefore, we look primarily to the Framers’ design of the Presidency within the separation of powers, our precedent on Presidential immunity in the civil context, and our criminal cases where a President resisted prosecutorial demands for documents.” He later states, “Taking into account these competing considerations, we conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.”

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The court majority’s concession that a president might still be prosecuted for entirely unofficial acts, while obviously justified, pales in comparison to the sweeping protection it grants for abuses of official power.  Prosecutors hoping to overcome a presumption of presidential immunity will need to show, the opinion states, “that applying a criminal prohibition to [a presidential] act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” Demonstrating no danger whatsoever will likely be prohibitively hard for a prosecutor to do.

The result is a betrayal of the full meaning of the U.S. Constitution’s separation of powers.

The Founders and the Danger of ‘Bold’ Executive Power

“Separation of powers” is a phrase that does not appear in the Constitution, but rather an idea that has been universally understood since the Founding to animate the whole constitutional system. It is not just any distinction among agencies of the state. As I have discussed at length elsewhere, it is an institutionalization of the rule of law, providing an articulated multi-step process in which the authority to formulate general rules of law, to adjudicate particular cases under those rules, and to enforce them by investigation, prosecution, and punishment, are lodged in distinct institutions.

This division, according to Montesquieu, the French political theorist who first articulated the idea, offers people the secure freedom of knowing that they will not be prosecuted and punished except in accordance with publicly promulgated and previously enacted general laws, and that their case will be heard by impartial judges, rather than legislative cliques or despotic executives with political agendas.

The concept of institutionally mixed government was ancient, as was the idea of the rule of law. It was Montesquieu’s innovation, however, to identify a judicial power as constitutionally fundamental, and to map liberty under the rule of law onto an insulation of the judicial power from those of the legislative and executive powers. He also argued that 18th century England had gone further toward promoting freedom by also distinguishing the executive power of the king and his ministers from the legislative authority of Parliament.

But there are two other important features in Montesquieu’s formulation. One is that he, like the American founders who followed him, was careful not to treat “separation” as implying completely impervious barriers. The English monarch, for example, had the authority to veto legislation, as does the American president. The other is underscoring the constitutional importance of holding the executive power, including those who wield it, to legal account. In other words, the executive power that enforced the law must itself be subject to enforcement of the law in turn.

This goal was so foundational as to justify vesting its exercise in a particularly powerful body: the nobility, taking the form of the House of Lords in England, and, by implication, the judicial parlements in France. The English House of Lords, for example, held the authority to try impeachments of the King’s executive ministers—an authority that extended not just to removal from office, but to imprisonment, loss of property, and even execution. Such convictions, notably, were immune to monarchical pardons. Just as notably, the most powerful nobles had the wealth and status to allow them to stand up to the king and his agents, as ordinary judges of the King’s Bench likely would not.

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Why were such extraordinary measures called for? Because the executive is uniquely able to sidestep the formal division of legal authority. After all, the goal of protecting secure freedom under law against political persecution does not only require that criminal trials happen before an independent judiciary: It also requires that the enforcement powers of the state not be used without such a criminal trial. As Montesquieu knew, regimes that engage in extra-judicial imprisonment, torture, and execution at the behest of the governing executive are all too common, whether there is officially a functioning independent judiciary in the country or not.

More generally, a government’s military, policing, and imprisoning powers—the violent agencies of executive power—have been threats to constitutional government and civil liberty whenever they were unleashed. Thus, historically, the separation of powers did not aim to unleash those powers in the name of letting the executive, as Roberts has it, “boldly and fearlessly carry out his duties.” As England had institutionally discovered and Montesquieu understood, making the separation of powers an effective institutionalization of the rule of law requires adding—not subtracting—political weight behind the legal control of executive powers in general and executive leaders in particular.

Hence the American founders, influenced by Montesquieu’s gloss on the English constitution, guarantee in the U.S. Constitution not just that a president could be impeached in the U.S. House and removed from office by a trial in the U.S. Senate, but that even following removal from office, a former president “shall nevertheless be liable and subject to indictment, trial, judgment and punishment”— meaning criminal punishment. Unlike in England, they vested the latter in courts of law with ordinary judicial procedures, but the core restraint on the executive remained the same.

The explicit availability of both impeachment and criminal prosecution under the Constitution is, as Yale University legal scholar Akhil Reed Amar noted last week, impossible to reconcile with Roberts’ invention of criminal immunity for precisely those abuses of official power that are the central case of impeachable offenses. And as Dan Drezner, a Tufts University political scientist, has emphasized, The Federalist Papers reinforced the idea of the president’s liability under criminal law by arguing that a virtue of a one-man presidency was that it made clear who should be held accountable for executive misconduct, including through criminal punishment.

The Trumpian Past as Prologue: 2017–2021

The Supreme Court’s ruling addressed Trump’s efforts to have all charges dismissed in his federal trial on four felony counts of attempting, in the months up to and including Jan. 6, 2021, to overturn the results of the 2020 election and interfere in the electoral vote count. Reversing a compelling appeals court ruling that denied presidential criminal immunity and allowed the case to go forward, the majority sent the case back to the trial court to decide which, if any, of special counsel Jack Smith’s election subversion indictments would survive. Because the court’s expansive understanding of “official” action may include all of a president’s public communication and any effort he justifies as maintaining election integrity, Trump may now escape legal accountability for his election subversion altogether.

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Stopping a Rogue Executive from Abusing the Massive Powers of the Presidency

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Thus, perversely, the court’s undermining of criminal accountability arises out of Trump’s efforts to avoid democratic accountability as well, after being rejected for reelection by the electorate. The combined effect suggests a vision of executive power that can’t be held accountable by any means at all, whether in court or at the ballot box. The court’s majority has, in effect, gone a very long way toward establishing the constitutional theory Trump memorably described as, “I have an Article II, where I have the right to do whatever I want as president.”

Trump’s term in office was marked by executive lawlessness and an obsessive desire for impunity. He was certainly not alone among populist and nationalist leaders in that orientation: The impetus to focus the governing power of a nation in one man’s will, unobstructed by the legalism of courts, the proceduralism of the bureaucracy, or legislative debates with an opposition party, is one of the defining features of populist authoritarianism.

U.S. presidents, too, chronically try to expand their power. But even by American standards, Trump stood out as trying to govern without legal constraint, and as eager to free the violent agencies of executive power from such constraint.

There were, for example, his attempts to govern without and against Congress, perfectly exemplified by his administration’s illegal expenditure of funds that Congress had refused to allocate to build a wall on the border with Mexico. This was accompanied by his habit of filling Cabinet and sub-Cabinet positions with “acting” appointees to avoid Senate confirmation.

There were also his efforts to expand a lawless power to halt immigration. As I wrote in 2018, Trump’s calls at the time for “mass expulsions without judicial oversight or procedural protection would be not only a violation of international law and of the U.S. Constitution (which guarantees due process to persons, not only citizens),” but “a grave threat to … American residents,” since “due process is how we ensure that citizens and legal residents aren’t among those swept up and deported.”

Consider, too, his hostility to legal accountability for the agents of state violence in general, not only in his own urge to unleash military violence against protestors, but also in, for example, his pardons of military personnel and contractors convicted of war crimes in Afghanistan and Iraq, against the advice of military and Department of Defense leadership. He similarly pardoned a former police officer convicted of directing her police dog to attack a homeless, undocumented immigrant who had already surrendered.

Above all, there was Trump’s quest to keep himself and those closest to him immune from legal scrutiny or accountability. Trump considered himself unbound by the Constitution’s Emoluments Clauses, which prevent him from taking financial advantage of his office, and the norm of disclosing tax returns; he went to extraordinary lengths to prevent and obstruct investigations into his campaign’s links to Russia; he tried to use military aid to Ukraine for his personal political advantage against Democrat Joe Biden; and he used pardons as a carrot to keep potential witnesses against him quiet.

It’s particularly unsettling to note that many of the instances of the Trump administration’s obstructions of justice as identified in the Mueller Report would seem to be protected by the court’s new ruling, which provides the president with absolute immunity from criminal prosecution for the use of core presidential powers and presumptive immunity for all official actions. Whether someone acted “corruptly”—in other words, the motive behind their actions—is central to the charge of obstruction of justice, and it helps to identify the difference between legal and illegal action. Yet Roberts insists, against a more careful concurrence by Justice Amy Coney Barrett, that the motives for the use of a presidential power may not be used to distinguish whether a presidential act is official or unofficial, and that official acts sit behind a veil that may not be pierced even to find evidence of crimes. By granting the president criminal immunity and making the executive’s obstruction of justice harder to prosecute and prove, the court has severely undermined the separation of powers.

A New Era of Politicized Federal Prosecutions and Regulatory Actions?

It’s also important to note that the court’s decision gives cover to personalized and politicized federal prosecutions. In a reversal of the priorities of the separation of powers, Roberts makes it harder to prosecute the holder of executive power but easier for him to direct the government’s prosecution of his enemies.

In the majority opinion, Roberts wrote:

The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to “take Care that the Laws be faithfully executed.” And the Attorney General, as head of the Justice Department, acts as the President’s “chief law enforcement officer.” ... Investigative and prosecutorial decisionmaking is “the special province of the Executive Branch,” and the Constitution vests the entirety of the executive power in the President.
[Emphasis added, citations omitted.]

This description of the relationship between the presidency and the prosecutorial and investigative functions of the Department of Justice delegitimizes the norms and rules that have been put in place within the executive branch since the 1970s Watergate scandal to insulate those functions from direct political interference. Indeed, the ruling’s characterization of the attorney general as the president’s—rather than the federal government’s—chief law enforcement officer endorses precisely the view of that office that then-President Trump constantly complained was not accepted by Attorney General Jeff Sessions or even, at times, Attorney General Bill Barr. Troublingly, the decision clearly gives cover to a president firing or threatening to fire the executive officers charged with federal investigations and prosecutions. In the Trump administration, this power would have included Trump’s threatening to dismiss Acting Attorney General Jeffrey Rosen prior to Jan. 6 for refusing to announce an investigation into supposed “election fraud,” and it would also have applied to the firing of FBI Director James Comey for investigating links between the Trump campaign and Russia.

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In the final months of his presidency, Trump issued an executive order creating a new federal civil service category of employment known as “Schedule F.” This order would have stripped career protections from tens of thousands of bureaucratic positions deemed to have a role in shaping policy and extending the president’s ability to hire and fire based on partisan or personal loyalty far down into the ranks of upper and mid-level employees.

Trump’s term ended before he could fully implement the order, but he has said he will reissue it immediately if he wins a second term. He means to go to war against the career civil service professionals who contradicted him in the past—people he imagines make up a conspiratorial “deep state” because they don’t necessarily agree with his partisan goals. And given his past frustrations with Comey, Robert Mueller, Sessions, Barr, and Rosen, it’s clear he means to bend the Department of Justice, including the FBI, to his will. Indeed, he has openly fantasized about using the investigative and prosecutorial tools of the federal government against his political enemies, starting with his 2016 campaign chants of “lock her up” regarding Hillary Clinton and continuing through last week in his calls to prosecute former Republican member of Congress and U.S. House Jan. 6 committee member Liz Cheney in a televised military tribunal.

The Roberts’ opinion’s discussion of the executive branch not only implied a stamp of approval on Schedule F; it also explicitly sanctioned direct presidential interference in the use of federal investigations and prosecutions. The ruling virtually ensures that the norms that barely held during Trump’s first term would get swept away in his second. 

A central purpose of the Constitution’s separation of powers is to protect liberty by constraining the executive’s lawless use of the policing and punishing branches of the state, and to bolster those constraints by ensuring that the holders of executive authority may themselves be held to account. As president, Trump sought to reject those structures of accountability, and if re-elected, he will do so again. Sadly, the Roberts court has facilitated this effort, gutting the separation of powers while claiming to entrench it.

© The UnPopulist, 2024