Tom Williams/CQ Roll Call via AP Images
Chief Justice John Roberts arrives for President Joe Biden’s State of the Union address in the House Chamber of the U.S. Capitol on Thursday, March 7, 2024.
Within two weeks of the outbreak of the Civil War, President Lincoln suspended the right to habeas corpus between Philadelphia and Washington. There was a danger that rebels might actually seize the nation’s capital, and Lincoln had ordered some regular army units and Northern state militias to rush down to Washington, lest it fall to Southern insurgents. Problem was, those troops were met by violent opposition from mobs as they entered Baltimore. Hence Lincoln’s order, which enabled federal authorities to lock up the Maryland rebels, no questions asked.
One of those arrested and held without charges was John Merryman, who’d apparently been involved in pulling down telegraph lines linking Washington to points north. As he’d not been charged, he petitioned for release, and the case quickly ascended to U.S. Chief Justice Roger Taney, whose regional injunctive powers covered the mid-Atlantic states. Taney ruled that Lincoln had no power to suspend habeas corpus, even though the Constitution permitted such actions in certain times of war and kindred emergencies. The power to suspend, Taney wrote, was the prerogative solely of Congress, not the president. Lincoln then noted that Congress was not going to convene until December, which at the time of Taney’s ruling lay six months in the future.
So Lincoln ignored Taney’s order. Congress did in fact eventually suspend habeas corpus, but not until 1863, two years after Lincoln had issued his order. At the time he received word of Taney’s decision, however, Lincoln famously posed the following question:
“Are all the laws but one to go unexecuted, and the government itself to go to pieces, lest that one be violated?”
I was put in mind of this question by the Supreme Court’s ruling last week that nothing a president may do in his (or her) official capacity can be illegal—or, as Richard Nixon (also famously) opined, “Well, when the president does it, that means that it is not illegal.” What particularly sent me back to Lincoln was Roberts’s ruling that Trump was immune from prosecution for his discussions with Vice President Pence, in which he urged Pence to overturn the outcome of the election by refusing to accept the electoral votes of a number of states.
A president’s discussions with their vice president, Roberts argued, fall within the category of the president’s official powers and responsibilities, and the vice president’s role in presiding over the tally of electoral votes is likewise official.
“The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding,” Roberts wrote, “thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.”
Dismissing a very real threat to the nation, Taney upheld a usually inviolable right; also dismissing a very real threat to the nation, Roberts invented one.
The actual substance of any such discussion is completely out of bounds for prosecutors, Roberts added, because “Our constitutional system anticipates that the President and Vice President will remain in close contact regarding their official duties over the course of the President’s term in office.” As to what it is that the president has in mind during such discussions, well, Roberts concludes, “In dividing official from unofficial conduct, courts may not inquire into the President’s motives.”
To restate Lincoln’s question, “Are all the laws but one to go unexecuted, and the government itself to go to pieces, lest that one be violated?” To Roberts, the answer is yes—though he had to create that law from whole cloth.
The insurrection of January 6th, which Trump wanted to culminate in Pence’s reversal of the presidential election’s outcome, was the first threat to America’s fundamental legal structure since the Civil War, particularly the war’s opening days when the constitutional order could have been swept away by the rebels’ capture of its leaders. Context had to matter, Lincoln believed, when the nation’s very constitutional order was at stake, even if it meant the suspension of a basic right. But context cannot matter, Roberts and his five fellow Republicans decreed. The nation’s fundamental tenets—respecting the outcome of elections, equal justice before the law—must be subordinated to the inviolable sanctity of president-to-vice-president dialogue, even if that dialogue concerned suspending those fundamental tenets.
Taney, the chief justice who ruled against Lincoln in the habeas corpus case, is remembered today as the author of the Dred Scott decision, which declared that Blacks could never be citizens of the United States. That decision also struck down the territorial compromises that had enabled Northern states to ban slavery. His reputation in the eyes of history is that of a jurist whose extreme racism was a proximate cause of the Civil War.
In comparing Taney’s ruling in the habeas corpus case (ex parte Merryman) to the Roberts ruling in the Trump immunity case, however, Taney has by far the better of the arguments. Both chief justices completely ignored the violent threats to the nation’s fundamental constitutional order in their rulings, but Taney did so in the name of a basic human right, while Roberts did so in the name of presidential immunity, which appears nowhere in our Bill of Rights or anyplace else in the Constitution.
In fact, Roberts fully neglects Article I, Section 3 of the Constitution, which says that a president who suffers impeachment and removal from office for high crimes and misdemeanors “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Thanks to Roberts and his gang, this is no longer applicable to those presidents who commit high crimes and misdemeanors as part of their official acts.
Dismissing a very real threat to the nation, Taney upheld a usually inviolable right; also dismissing a very real threat to the nation, Roberts invented one.
