I've now had five full days to think about Trump v. United States. I wrote a series of posts about Chief Justice Roberts's majority opinion. When the Chief wants to be clear, he is very clear. When the Chief wants to be opaque, he is very opaque. And when the Chief is trying to hold together a majority opinion, he can be conciliatory. In Trump, Roberts wrote crystal clear prose. And he had no problem holding together his five votes. But the majority opinion made no effort to bring on Justice Barrett as a sixth vote.
Why? In Part III-C, the Court reached out to decide an issue that wasn't presented yet: prosecutors cannot introduce as evidence conduct that is otherwise protected by presidential immunity. Roberts explained:
Allowing prosecutors to ask or suggest that the jury probe official acts for which the President is immune would thus raise a unique risk that the jurors' deliberations will be prejudiced by their views of the President's policies and performance while in office. The prosaic tools on which the Government would have courts rely are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President. Although such tools may suffice to protect the constitutional rights of individual criminal defendants, the interests that underlie Presidential immunity seek to protect not the President himself, but the institution of the Presidency
