Cast aside, among other precedents, was a legal opinion embraced by every Justice Department, Republican and Democratic, for more than a half century: a legal opinion that said presidents cannot be criminally prosecuted while in office, but can be held to account in court after leaving office. That’s why President Ford pardoned President Nixon after Nixon resigned, and why Nixon accepted the pardon.
The immunity decision sent the election subversion case against Trump back to the trial judge to decide what charges would survive, thus guaranteeing that the former president would not face trial until after the election, if ever. In contrast, Justice Barrett grew up in Louisiana and spent almost all of her professional life in academia at Notre Dame Law School in South Bend, Ind., far from the power politics of Washington.
“We really saw Amy Coney Barrett come out of whatever was left of her shell this term,” observes Georgetown law professor Steven Vladeck. “She really has a series of principles” that we may or may not agree with, but “she’s going to follow them” even when they are not aligned with her political preferences.
“This was a wonderful chance for to show that there are not Republic and Democratic justices,” says Yale law professor Akhil Amar. “And he failed the test."
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