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Opinion: In Trump’s immunity case, John Roberts has quite a mess in front of him

Opinion By Steve Vladeck, CNN

(CNN) — Throughout Thursday’s marathon oral argument in Trump v. United States, which lasted more than two and a half hours, most of the US Supreme Court’s nine justices provided at least some clue as to how they’re likely to rule on whether the January 6 criminal prosecution against former President Donald Trump can go forward. (Trump has denied any wrongdoing related to this case.)

At its core, the question in the Trump case is relatively straightforward: Can Trump be criminally prosecuted for his alleged role in the events leading up to and on January 6, 2021? Lower courts resoundingly said yes—without getting into the harder question of whether there’s ever a circumstance in which criminal laws can’t be applied to actions by a president. The Supreme Court could have ducked that question too, either by not taking up Trump’s appeal in the first place, or by holding that, whether or not there is ever a case in which a president is immune from criminal prosecution, the January 6 prosecution against Trump can proceed.

Four of the justices — Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — expressed support for different arguments that would each pose serious (if not fatal) obstacles to the closely watched criminal case. Four of the justices — Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson — seemed to support a ruling that would allow most, if not all, of the charges in the January 6 case to go forward. If that holds, the fate of the January 6 prosecution likely rests in the hands of the justice who spoke first and last on Thursday, but who did the least to reveal his views: Chief Justice John Roberts. And he has quite a mess in front of him.

It became clear early in Thursday’s argument that there was little support across the bench for a narrow ruling that would be good for only this case. As Gorsuch put it at one point, the court needs to articulate “a rule for the ages.” Never mind that we’ve never had a criminal indictment of a former president before; the concern seems to be about the need to articulate a forward-looking rule so that future presidents will know when they should be worried about future criminal prosecution, and when they shouldn’t. Once the court articulates that rule, presumably, it would send Trump’s case back to the district court — where Judge Tanya Chutkan would be expected to apply it before proceeding to trial.

All of this may sound plausible enough in the abstract. But there are two complications, both of which paint the chief justice into a pretty tight corner.

First, where exactly is the line between acts that are immune from prosecution and those that aren’t? One of the few colloquies during Thursday’s argument that featured the chief justice included his effort to underscore this problem—and how the same acts might fall on one side of the line or the other depending upon the president’s motive or other idiosyncrasies of a specific case.

Second, even if five or more justices ultimately agree on where the line ought to be, how long will it take them to get there? If the court doesn’t hand down a ruling until late June or even early July, that may have the effect of practically immunizing Trump even if the majority holds that he can stand trial. That’s because there may not be enough time for the trial to be held before the election, and there’s no way the trial would happen in a world in which Trump wins.

Whatever else might be said about Roberts, he is not oblivious to this maelstrom of legal and political considerations. And he knows, as well as anyone, that many of the Supreme Court’s most celebrated decisions historically have come in rulings by chief justices. It was Chief Justice Earl Warren who wrote for a unanimous court in the biggest civil rights cases — not just Brown v. Board of Education, but Cooper v. Aaron, Loving v. Virginia and a host of others. It was Chief Justice Warren Burger who wrote for a unanimous Court in the Watergate tapes cases — in which the court held that President Richard Nixon, who had appointed Burger, had to turn over the Watergate tapes notwithstanding executive privilege, a ruling that led directly to Nixon’s resignation.

And it was Chief Justice William Rehnquist who wrote for the court in a technical but essential 2000 ruling reaffirming that only the court, and not Congress, could overrule Miranda v. Arizona — even though Rehnquist himself abhorred that ruling, which mandated that a suspect must be advised of their right to remain silent and to have an attorney present in order for that suspect’s confession to be used in court.

Of course, that could also work out poorly — as in Dred Scott v. Sandford, the infamous 1857 ruling in which Chief Justice Roger B. Taney effectively held that enslaved people were not and never could become citizens, further helping to set the stage for the Civil War. But for better or worse, in all of these cases, the chief justice wasn’t just speaking for the court. He was speaking for the country.

For Roberts, the question is whether there’s any way to actually do that in this case — whether there is some way to make it possible for Trump’s trial to proceed before the election (so that the court isn’t accused of effectively taking the former president’s side) in an opinion that sets out a clear, forward-looking standard to govern this and future cases. We may not know the answer to that question for another two months. But the one thing that seems most clear coming out of Thursday’s argument is that the answer — and the broader legacy of the Roberts court — will ultimately be up to him.

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