Akhil Reed Amar writes:

In a quid-pro-quo bribery case—money for a pardon—[Chief Justice John] Roberts apparently would allow evidence of the quid (the money transfer) and evidence of the quo (the fact of a later pardon) but not evidence of the pro: evidence that the pardon was given because of the money, that the pardon was motivated by the money. This is absurd.

In the oral argument this past April, one of the Court’s best jurists posed the issue well: “Giving somebody money isn’t bribery unless you get something in exchange, and if what you get in exchange is [an] official act … how does [the case] go forward?” The answer, of course, is by allowing evidence of all three legs of the bribery stool—the quid (the money), the quo (the official act), and the pro (the unconstitutional and vicious motive). Yet Roberts’s majority opinion entirely misses the thrust of this oral-argument episode.

This is astonishing, because the impressive jurist who shone in this oral exchange was none other than the chief justice himself. John Roberts, meet John Roberts.

And please meet the John Roberts who has long believed that the judiciary shouldn’t be partisan. Over the course of his career, Roberts has repeatedly said that there are no Republican justices or Democratic justices, no Trump justices or Obama justices or Biden justices—there are just justices, period. Yet the ​​Court​ in Trump v. United States​ split along sharply partisan lines—six Republican​ appointees,​​ three of whom were named to the Court by Trump himself,​ versus three Democrat​ic appointees​​​. ​Roberts failed to pull these sides together​​.

This is precisely the opposite of what happened in the celebrated ​​​decision United States v. Nixon​​, also known as the Nixon-tapes case, in which​ the Court​—including three justices appointed by Richard Nixon himself—issued a unanimous no-man-is-above-the-law ruling against the president. [Continue reading…]