No. of Recommendations: 3
Or in the simple language Roberts seems to prefer: A former president can be prosecuted if he breaks the law.
I think the more accurate simple language version is this: A former president can be prosecuted if he is accused of breaking the law.
You don't actually have to have broken the law to be prosecuted. Some innocent people are prosecuted. Some people are prosecuted because the prosecutors think their conduct was illegal and the defendant disagrees - and some of those people are vindicated on appeal.
And because we live in a world of imperfect information (and imperfect people), there's no omniscient philosopher-King that knows with certainty before the trial whether all persons who are being accused did, or did not, break the law.
Which is why Roberts characterized the appellate court ruling the way he did. Absent immunity, the rule isn't that anyone who breaks the law can be prosecuted. The rule is that anyone who the prosecutors accuse of breaking the law can be prosecuted. Institutionally, the grand jury system provides virtually no check on prosecutors' power (hence, the "ham sandwich" aphorism).
One can argue that this is the right result - that since any citizen of the U.S. can be prosecuted based on an accusation of lawbreaking, so too should an ex-President. But the factors that led the Court to grant total immunity to civil suits for acts taken during office are also at play with criminal suits. We want the President to be constrained by the law, but we don't want the President to refrain from doing lawful acts where reasonable people could disagree on what the law actually requires.
Every modern President has been found at one time or another to have violated the law - after all, there's not a single Administration that hasn't lost a case in front of the Supreme Court. I actually don't think there's a single Administration that hasn't lost at least one case unanimously in front of the Supreme Court. And since many of those cases involve clashes/disputes over the scope of regulatory/statutory power, I don't think there's a single modern President that you couldn't draft a "conspiracy to defraud" charge and get it through a grand jury.
Which is what Roberts (and Comey Barrett) were digging into....
