Making sense of the Trump-Roberts exchange about impeachment

We are in strange constitutional times.

Yesterday there were two public statements, from the heads of their respective branches of the United States constitutional system.

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The first was from the president of the United States Donald Trump on social media:

“This Radical Left Lunatic of a Judge, a troublemaker and agitator who was sadly appointed by Barack Hussein Obama, was not elected President – He didn’t WIN the popular VOTE (by a lot!), he didn’t WIN ALL SEVEN SWING STATES, he didn’t WIN 2,750 to 525 Counties, HE DIDN’T WIN ANYTHING! I WON FOR MANY REASONS, IN AN OVERWHELMING MANDATE, BUT FIGHTING ILLEGAL IMMIGRATION MAY HAVE BEEN THE NUMBER ONE REASON FOR THIS HISTORIC VICTORY. I’m just doing what the VOTERS wanted me to do. This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!! WE DON’T WANT VICIOUS, VIOLENT, AND DEMENTED CRIMINALS, MANY OF THEM DERANGED MURDERERS, IN OUR COUNTRY. MAKE AMERICA GREAT AGAIN!!!”

This social media post indicated Trump was perhaps a little disappointed with how the current case on deportations is going (covered on this blog  in the last couple of days).

And unlike many of the documents examined on this blog, this Trump post really is not a difficult text to parse.

Once upon a time, when things were normal, such a statement by a president or anyone else in a position of power would have caused consternation, and maybe even triggered its own impeachment.

Now, we just expect these things – and one’s eyes glaze over such missives, with their lines of block capitals, just like one’s eyes can glaze over those irksome American contracts which insist in putting dozens provisions in block capitals so as to make them (supposedly) duly prominent.

And the fact that Trump was attacking a judge and calling for their impeachment also registered hardly a shrug.

So what? This is what he does. Next news item, please.

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But.

It is a text not without interest – not for what it says, but for its context.

The timing of this post would accord with when Trump was probably being told of how the court case was going, with federal lawyers briefing him on the merits of the success of the defence.

As this blog has said, the US federal government are facing a hard time in this particular case – and there seems no obvious way that the government was not in breach of a court order.

If that was the substance of what Trump was being told, there is no wonder his response was this social media text. He would not take such news well.

But even after setting out this possible context, few would give such blather a second thought. More of the same.

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But.

Then something unexpected happened.

John Roberts, the chief justice of the United States Supreme Court, put out his own public statement.

Such statements are as rare as Trumps posts are ubiquitous, and so it had the sudden effect that Trump’s posts have lost long lost.

Roberts simply said this, in a mere two sentences, and without any block capitals or exclamation marks:

“For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”

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Bang.

Of course, this does not mention Trump expressly. And nor it is it an exceptional statement – it states the obvious.

In and of itself, it is not a radical text.

Yet the context of this text maybe makes it very potent indeed, and for at least two possible reasons.

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First, it perhaps indicates that Roberts – part of the nominal conservative majority on the court – is not happy with threats to impeach judges over how cases are decided.

And if Roberts is not happy, it is likely that other conservative justices such as Amy Coney Barrett are unhappy too.

Given that Trump and his supporters hope and expect the conservative majority on the supreme court to ultimately uphold a lot of what they are currently doing, this statement was a signal that this majority cannot be taken for granted.

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Second, it appears to also be a signal of judicial leadership. Roberts is implicitly telling the other federal judges across America who are having to adjudicate legal claims arising from the current political turmoil not to be intimidated by threats of impeachment.

(Any impeachment would also require two-thirds of the senate – votes which the conservatives have not (yet) got.)

If it is such a signal of leadership then, again, this is not good news for Trump and his bullying supporters.

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Was it proper for Roberts to make such an extra-judicial statement?

Already conservative senators are saying that Roberts has trespassed onto the arena of the legislature, for it is Congress that decides whether to impeach.

(Such senators, of course, are silent on whether it was proper for the president to usurp the role of Congress on impeachment – but presumably such intellectual consistency is for the hobgoblin of little minds.)

But in any case Roberts was correctly stating the appropriate response to disagreeing with a court decision – you appeal, which is certainly proper for a chief justice to say.

And by saying what is the appropriate response, you are also necessarily saying what is not the appropriate response, and there is nothing wrong with him doing that expressly.

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One never would have expected the president and chief justice to engage in, what is in effect, a twenty-first century pamphlet war – to have such a row in public.

To his credit Roberts avoided joining with Trump expressly, but the meaning of his speech act was plain: it was a public correction, if not a contradiction, of the president of the United States. It was a public rebuke.

Roberts would not have enjoyed doing this, and so there must have been for him a compelling reason to overwhelm his usual reluctance to make such statements.

(One wonders if he is also tempted to make a general statement that court orders should also be complied with unless appealed – though that may be too close to the facts of many currently contested cases.)

Many – fully aware of Roberts’ own rather illiberal judicial record – were unimpressed with this intervention. It was too little, too late and he only has himself to blame for much of the current law and policy dumpster fires.

Perhaps.

But here Roberts did do the right thing, and for that he should be commended – even if much of the rest of his record should be condemned.

And if politics is about getting people to shift their position to a better position, then any such move should always be welcomed.

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Of course, the Roberts statement will make little difference to the current spectacular legal and political breakdown of the United States.

But it is a signal that those seeking to bring about this breakdown are not going to have it all their own way.