John Roberts Jr used his position as the US supreme court’s chief justice to urge his colleagues to rule quickly – and in favor – of Donald Trump ahead of the decision that granted him and other presidents immunity for official acts, according to a New York Times investigation published on Sunday.
The new report provides details about what was happening behind the scenes in the country’s highest court during the three recent supreme court decisions centering on – and generally favoring – the Republican former president.
Based on leaked memos, documentation of the proceedings, and interviews with court insiders, the Times report suggests that Roberts – who was appointed to the supreme court during Republican George W Bush’s presidency – took an unusually active role in the three cases in question. And he wrote the majority opinions on all three.
In addition to the presidential immunity ruling, the decisions collectively barred states from removing any official – including Trump – from a federal ballot as w
ell as declaring the government had overstepped with respect to obstruction of justice charges filed against participants of the 6 January 2021 attack that the former president’s supporters aimed at Congress.
The Times reported that last February, Roberts sent a memo to his fellow supreme court justices regarding the criminal charges against Trump for attempting to overturn the result of the 2020 election that he lost to Joe Biden.
In the leaked memo, the Times reported that he criticized a lower court decision that allowed the case to move forward – and he argued to the other justices that Trump was protected by presidential immunity. He reportedly said that the supreme court ought to hear the case and grant Trump greater protection from prosecution.
“I think it likely that we will view the separation of powers analysis differently,” the Times said that Roberts wrote to the other supreme court justices in the private memo.
According to the Times, some of the conservative justices wanted to delay the deci
sion on the presidential immunity case until after Trump finished running for a second term in the White House in November. But Roberts advocated for an early hearing and decision – and ultimately wrote the majority opinion himself.
Before the opinion and ruling went public, the Times reported that Justice Brett Kavanaugh had praised Roberts on the ruling, calling it “extraordinary”. Their fellow conservative justice Neil Gorsuch – who, like Kavanaugh, was appointed to the supreme court during Trump’s presidency – called it “remarkable”.
The decision came out on 1 July and stated that former presidents are entitled to some degree of immunity from criminal prosecution. Both conservatives and liberals saw it as a huge win for Trump, who – among a spate of legal problems – is awaiting sentencing for a criminal conviction in May of falsifying business records to conceal hush-money payments to an adult film actor who alleged an extramarital sexual encounter with him.
The supreme court then returned the case to
district judge Tanya Chutkan, who is overseeing the federal case against Trump for allegedly participating in an illicit effort to reverse his defeat in the 2020 election. That left her tasked with having to figure out how to apply the US supreme court’s decision.
The Times also reported that in the case about whether individual states could kick Trump off the ballot based on language in the US constitution which bars insurrections from holding office, Roberts told his colleagues that he wanted the decision to be unanimous and unsigned.
All nine justices initially agreed that Trump should remain on state ballots. But then, the Times reports, four conservative justices suggested additions to the ruling, including proposing that Congress would have to approve enforcement of the insurrectionist ban in the constitution.
Four justices – liberals Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson and conservative Trump appointee Amy Coney Barrett – reportedly disagreed. They said they thought that went too far
and wrote concurrences in disagreement, according to the Times.
Ultimately, Roberts sided with the four remaining justices – fellow conservatives Kavanaugh, Gorsuch, Clarence Thomas and Samuel Alito Jr – in an opinion that he wrote and was issued unsigned.
In the third case scrutinized by the Times, which involved the Capitol attack participants’ obstruction of justice charges, Roberts had originally assigned the writing of the majority opinion to Alito.
But then in May, Roberts – in an unusual move – informed the court that he would write the opinion himself. The chief justice did that days after a scandal enveloped Alito in the wake of reports that his wife had flown an upside-down flag outside the couple’s home following the Capitol attack. Flying flags upside down, a universal sign of distress, has been associated with a movement that boosted Trump’s lies about the 2020 election being unduly stolen from him.
The Times wrote that it was unclear whether there was a link between the flag scandal and Robe
rts’ decision to write the Capitol attack-related opinion, in which a 6-3 conservative majority found the federal government could not apply its obstruction of justice statute so broadly. The justices did not respond to the outlet’s request for comment.
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