For Chief Justice John G. Roberts Jr., the trial should be a reminder as to what the courts are facing in the Trump era. Roberts typically operates in the serene world in which lawyers cannot misrepresent the record without fear of harsh rebuke; in which legal arguments must be grounded in a fair reading of precedent; and in which counsel steer clear of grotesque assertions of power for fear of invoking the dreaded question from the bench — “Counselor, if your argument is true, what limit is there?” But there’s a new reality in the Trump era and Roberts got a taste of it last term when he all but accused the administration of lying in the census case. Sitting in the Senate chamber day after day, listening to Trump’s assertion of unlimited executive authority and the president’s attorneys assert a discredited claim of absolute immunity — in contrast to the calm, exquisite dissection of Trump’s case by the House managers — must surely impact his understanding of the president’s authoritarian ambitions.
Roberts is an institutionalist, one who openly worries about the perception of the court’s integrity and credibility, and one who defends the third branch of government as a check on the other two. Roberts certainly has read and respects the precedent set out in U.S. v. Nixon:
[Neither] the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President’s need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III. In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.
This does not mean Roberts is going to leap into the impeachment fray. But when Trump’s attorneys come shopping their bogus legal theories or twist the factual record, we hope alarm bells will ring in the chief justice’s head.
We hope that Roberts viscerally understands that this is a president who will obliterate the separation of powers, wield his powers for personal gain, seek to destroy the role and authority of both the legislative and executive branches, and lie to courts, Congress and the American people. We trust that Roberts will not accord to the Trump Justice Department or to Trump’s personal lawyers the assumption of good faith. We pray he summons some righteous indignation and rhetorical fire to reject Trump’s ludicrous claims of executive supremacy and to bring along in his rulings the so-called originalist justices who have read the Federalist Papers and talk a good game about separation of powers. In sum, we hope this is a transformational professional experience for Roberts.
Here is the thing: Trump’s lawyers know they are lying about the facts and distorting the law. The Republicans know they are doing so, too. The Democrats know the Republicans know what Trump’s lawyers are up to, although theRepublicans carry on shamelessly. Power outweighs truth for this crowd.
But there sits Roberts, thinking to himself that he surely would bounce from the courtroom lawyers who twisted the record and misrepresented facts and law as Trump’s attorneys are doing. Surely he is absorbing the central lesson of the Trump era: If the courts do not stop Trump, no one will.