0:07

This is our latest installment of If You

0:09

Can Keep It. It's our weekly election series

0:12

where we leave the horse race to the

0:14

side. Instead, we focus on the stakes of

0:16

this election for people, for the country, and

0:18

for our democracy. Today we're

0:20

talking about a landmark case that the Supreme Court

0:23

is taking on. Last Thursday, the

0:25

justices heard arguments in a case all

0:27

about presidential immunity. At the

0:29

heart of the case is whether former President

0:31

Donald Trump is immune from charges related to

0:33

efforts to overturn the 2020 election.

0:36

The case is a first for the Supreme Court

0:39

that could impact not only the former

0:41

president, but future presidents, as stated by

0:43

Justice Brett Kavanaugh. This case has huge

0:45

implications for the presidency, for the future

0:48

of the presidency, for the future of

0:50

the country, in my view. And

0:53

the timing is just as significant as

0:55

the outcome with the November election just

0:57

six months away. So what

0:59

exactly happened on Thursday? What kind of

1:01

impact will the outcome of this hearing have? I'm

1:04

Jen White, in studio with 1A's Todd Zwilik, and

1:06

you're listening to the 1A podcast, where we get

1:08

to the heart of the story. We'll be back

1:10

with our panel in just a moment. Let's

1:18

meet our panel. Joining us today is Mary

1:20

McCord. She's the executive director at the Institute

1:22

for Constitutional Advocacy and Protection.

1:25

She's also a professor of law

1:27

at Georgetown University and the co-host of

1:29

the Prosecuting Donald Trump podcast. Mary, thanks

1:31

for being here. Thanks for having me,

1:33

Jen. Also with us is

1:35

Leah Litman. She's the co-host of the

1:37

podcast Strict Scrutiny and a professor at

1:39

the University of Michigan Law School. Leah, it's

1:41

great to have you back. Thanks for having me.

1:44

So on Thursday, the Supreme Court took

1:46

three hours to hear arguments. Mary, what was

1:48

the core question they were trying to answer? Well,

1:52

the question presented was really whether and to

1:54

what extent a former

1:56

president is criminally immune for acts of sexual assault, sexual

1:58

assault, sexual assault, sexual assault, and taken within

2:00

the scope of his official acts as

2:02

a president. And that's the way the

2:05

court had articulated the question that it wanted

2:07

to hear from the parties on. But we

2:09

heard a whole lot more than that, I

2:12

think, over the course of the three hours.

2:15

Well, I just want to point out

2:17

the fact that the court has a

2:19

conservative majority, thanks to former President Trump.

2:21

He appointed three of those justices, Amy

2:23

Coney Barrett, Brett Kavanaugh, and Neil Gorsuch.

2:26

Leah, after hearing Thursday's line of questioning, what

2:28

sense did you get about how the justices

2:30

are leaning? It was a

2:32

little bit difficult to know where exactly

2:34

a majority would be. I think it

2:36

is clear there is no majority to

2:38

simply agree with and let stand the

2:41

U.S. Court of Appeals for the D.C.

2:43

Circuit's opinion, which had held that once

2:45

a former president leaves office, the president

2:47

is not entitled to immunity for violating

2:49

criminal laws while he or she was

2:51

in office. It's clear that there are

2:53

not five votes just to let that

2:55

opinion stand and the trial to proceed.

2:58

And the question is really, what are

3:00

five justices going to coalesce around when

3:02

they send the case back down to

3:04

the lower courts and likely ask them

3:06

to make some additional determinations before allowing

3:09

the case to proceed any further? Now, Justice

3:11

Samuel Alito posed a line of questioning that revealed

3:13

a bit about his thoughts on the case. If

3:16

an incumbent who loses

3:19

a very close, hotly contested

3:21

election knows that

3:23

a real possibility after

3:27

leaving office is not that the president is

3:29

going to be able to go off into

3:31

a peaceful retirement but that

3:33

the president may be criminally prosecuted

3:36

by a bitter political opponent,

3:40

will that not lead us

3:42

into a cycle that

3:45

destabilizes the functioning of our country

3:47

as a democracy? And we can

3:49

look around the world and find

3:51

countries where we have seen this

3:53

process. That was Justice

3:55

Alito speaking during oral arguments on Thursday.

3:57

Mary, what insights did you have on the case?

4:00

you gather from the justices line of questioning

4:02

on where they may stand on presidential immunity?

4:05

Well directly related to that quote

4:07

from Justice Alito, it seemed that there

4:09

was a contingent of

4:13

justices, Justice Alito, Justice Kavanaugh, and

4:15

Justice Gorsuch, who had the concern

4:17

that we just heard. If there

4:19

isn't immunity, will presidents, all future

4:21

presidents, be chilled in their ability

4:24

to function as president because of

4:26

their concern about a future prosecution?

4:28

In fact, would that even lead

4:30

to presidents trying to self

4:32

pardon on their last day of office

4:35

or at the end of office? There

4:37

was a separate contingent of justices who

4:39

had the opposite concern, which was articulated

4:42

by Justice Jackson when she said, if

4:44

the potential for criminal liability is taken

4:46

off the table, wouldn't there be a

4:49

significant risk that future presidents would be

4:51

emboldened to commit crimes with abandon while

4:53

they're in office? And I do think

4:55

this is a concern here as we

4:58

look toward an opinion. If

5:00

the justices decide that there is

5:02

some category of

5:05

official acts for which a

5:07

president is immune from criminal

5:09

prosecution, would

5:12

anything within that category would essentially

5:14

be what Justice Jackson was worried

5:16

about, things that a president could do

5:18

without worry about criminal prosecution? Now,

5:20

I will say I agree with Leah that

5:23

I didn't hear five votes

5:25

who were ready to

5:27

affirm the D.C. circuit and say a president

5:30

is not immune from criminal liability, period.

5:32

I also didn't hear five

5:35

votes that says he's immune for everything

5:37

he does within the outer perimeter of

5:39

his official acts. So I think that

5:41

the whole question here is going to

5:43

be, there is the line drawn. And

5:46

I would say one thing. There is another option

5:49

here. Everyone agrees that the

5:51

president is a former president,

5:53

is criminally liable for things

5:55

done private acts, things that

5:57

were not done in his official capacity. And

5:59

there is an ability here for the court

6:01

to rule narrowly and not have to

6:03

answer all of the difficult questions that

6:05

it would if it really wants to

6:07

create a rule for the ages, as

6:09

Justice Gorsuch says. They don't need to

6:11

do that. They can say whatever the

6:14

meets and bounds of official acts, in

6:16

this case, the allegations here were not

6:18

within the scope of the president's outer

6:20

perimeter of the president's official acts. And we'll

6:22

drill down a little bit more into how

6:25

they're trying to draw this distinction between official

6:27

and private acts a little later. Leah,

6:30

you mentioned that there wasn't a lot of

6:32

controversy in the lower courts. Mary, you just

6:34

said the court can rule narrowly here. I

6:36

mean, the lower courts ruled decisively that

6:39

there's no immunity for criminal prosecution

6:41

for former presidents, and that immunity

6:43

isn't mentioned anywhere in the law.

6:46

It's not in the Constitution. Leah,

6:48

why are justices seeming to reach

6:50

out to put their own mark

6:52

on a question that until now wasn't

6:55

controversial? It certainly wasn't controversial in the

6:57

lower courts. I think it's

6:59

a little bit difficult to know why exactly

7:01

they are doing what they are doing in

7:04

this case. But I want to underscore something

7:06

that Mary said, which I think speaks to

7:08

what they might be up to here, which

7:10

is this particular case just does not require

7:12

them to opine on what

7:14

possible limits there might be on

7:17

criminal prosecutions of former presidents.

7:19

Because as Justice Sotomayor noted

7:22

in her questioning with Trump's

7:24

lawyer, there just isn't any

7:26

plausible account of a president's

7:28

official duties that encompass allegedly refusing

7:30

to leave office, contesting the results

7:32

of a valid election, and putting

7:34

together a fraudulent slate of electors.

7:36

No matter what the outer bounds

7:39

of the president's office is and

7:41

the president's official duties, that

7:43

just wouldn't be encompassed in that

7:45

and therefore wouldn't be entitled to

7:48

immunity and wouldn't bar prosecution. And

7:50

so I think the interesting and

7:53

in many respects troubling question here

7:55

is why were so many Republican

7:57

appointees seemingly intent case

8:00

to opine on broader legal questions

8:02

that this case doesn't require them

8:05

to adjudicate because of course one

8:07

consequence of They're doing so in

8:09

this case is to effectively immunize

8:12

Donald Trump before the election and

8:14

by guaranteeing additional legal process Before

8:16

any trial can pick up They

8:19

are ensuring there will not be

8:21

a trial before the election on these

8:23

election interference charges And that is a

8:26

very again troubling prospect and

8:28

given that they are again Appining on

8:30

legal questions that are not necessarily teed

8:33

up by this case. It is very

8:35

unclear. What is going on here? Mary

8:39

what does the Constitution say

8:41

about presidential power? Well certainly

8:45

In the article just mentioned the

8:48

section just mentioned there is that take

8:50

care clause I would also indicate that

8:52

there is a clause that is about

8:54

the term of office a President

8:56

serves a term of office and co

8:58

for four years and does not serve after

9:01

that unless he has been Reelected and

9:03

you know, this is one reason I think

9:05

that the special counsel in his brief says

9:07

to echo Leah's point that

9:11

Petitioner meaning Donald Trump's concern about

9:13

chilling official conduct that violates the

9:15

provision of the Constitution rings Hollow

9:17

because no president has an article

9:19

to interest in using crimes to

9:21

give himself a second term after

9:23

an election He lost I would

9:26

also note that one of the

9:28

issues that came up at argument

9:30

was whether

9:32

there could be some things that

9:34

a president a former president would be

9:36

immune from that not because he

9:39

has immunity I in fact, I misspoke when I

9:41

use that term but could not be criminally

9:43

prosecuted for because Application

9:45

of a criminal statute to

9:47

particular conduct might infringe on

9:49

a president's or constitutional responsibilities

9:52

things like the pardon power the

9:54

veto power Recognizing foreign

9:56

governments a very core small

9:58

scope of things Let's

10:00

go to a quick break here. Coming

10:02

up, selling nuclear secrets, ordering the coup,

10:05

misusing SEAL Team Six. The

10:07

Supreme Court justices come up with hypotheticals for

10:09

presidential immunity. Stay with us, we've got a

10:11

lot more to get to. Let's

10:18

get back to the conversation. There was

10:20

a lot of talk about what qualified

10:23

as an official act versus a personal

10:25

or a private act. And here's Justice

10:27

Amy Coney Barrett questioning former President Trump's

10:29

lawyer, John Sauer, on where Trump's acts

10:32

landed. Even if we were to

10:34

decide or assume that there was some sort of immunity

10:36

for official acts, that there were sufficient

10:38

private acts in the indictment for the trial to go,

10:41

for the case to go back in the trial that

10:43

began immediately. And I want to know if you agree

10:45

or disagree about the characterization of these acts as private.

10:48

Petitioner turned to a private attorney, was willing

10:50

to spread knowingly false claims of election fraud

10:53

to spearhead his challenges to the election results.

10:55

Private? As I was telling you, we dispute

10:57

the allegation, but that sounds private to me.

10:59

Sounds private. Petitioner conspired with another private

11:01

attorney who caused the filing in court

11:03

of the verification signed by a petitioner

11:05

that contained false allegations to support a

11:07

challenge. That also sounds private. This

11:10

is something on lots of your minds. Michael,

11:13

emails, when you are the president, there is

11:15

no point when you take off the cape.

11:17

Your personal and professional lives are in essence

11:19

merged. The court will be leading us down

11:22

a ridiculous path to try to distinguish official

11:24

and personal acts. And Dave and Silver Spring

11:26

emails, withholding funds from an ally is a

11:29

presidential act. Urging individuals to riot and disrupt

11:31

government proceedings is not a presidential act. It

11:33

is personal. I mean, Leah, try

11:36

to explain the distinction, the

11:38

justices were trying to tease out

11:40

here between private versus official acts. Sure.

11:45

So I guess I would start out

11:47

by saying, on some level, this is

11:49

not one of the difficult cases if

11:51

you are going to try to separate

11:53

out official from private conduct. If

11:55

you think about the things that Donald Trump has

11:57

bragged that he can do with no accountability, speculated

12:00

that he could go out and shoot someone on

12:02

fifth avenue and experience no accountability

12:04

so if he just did that you know

12:06

what while president would

12:09

have been to be a completely private

12:11

activity but you know if he involved

12:13

let's say the military or feel team

12:15

six you know in order to do so for

12:19

someone else then you know he would be abusing

12:21

the office in order to accomplish

12:24

that unlawful objective um

12:26

but what i think justice

12:28

barrett's questions are getting at

12:30

and which is important is

12:33

that even donald trump and

12:35

his team concede that the

12:37

indictment that special counsel jack

12:39

smith brought alleges multiple bases

12:41

for criminal liability that do

12:43

not involve official activity here

12:45

you have as justice barrett

12:48

was recounting donald trump engaging

12:50

a lawyer in private practice in

12:52

order to benefit trump as a

12:54

candidate not as an actual office

12:56

holder someone who wanted to obtain

12:58

the office of the presidency again

13:00

so there are going

13:02

to be situations and circumstances where

13:05

even though of course sometimes the

13:07

president's official duties will blur together

13:09

with the president's personal capacity some

13:11

instances and occasions it will be

13:14

clear that the president is not

13:16

actually acting within the scope of

13:18

the president's duties in particular well you

13:20

mentioned seal team six and back in

13:22

january trump's legal team argued that ordering

13:25

seal team six to kill a political

13:27

opponent would qualify for presidential immunity and

13:29

still team six was brought up again

13:31

by justice samuel elito i

13:34

don't want to slander seal team six

13:36

because they're no seriously they're honorable they're

13:39

honorable uh officers and

13:41

they are bound by the

13:43

uniform code of military justice not to

13:45

obey unlawful orders but

13:47

no i think one could say

13:50

that it's not plausible that is

13:52

legal that that action would be legal and

13:54

and i'm sure you thought i've thought of

13:56

lots of hypotheticals i'm sure you've thought of

13:58

lots of hypotheticals where president could say,

14:01

I'm using an official power, and

14:03

yet the president uses it in an

14:06

absolutely outrageous manner. Mary,

14:08

what did you make of this argument

14:10

in this moment? Well, it's

14:12

two interesting points about that. One

14:15

is that Mr. Trump's lawyer, John

14:17

Sawyer, really wasn't willing to give it

14:19

up, you know, and

14:21

even suggest that that would be too outrageous

14:23

and not legally plausible. In fact, later in

14:25

a response to a question from Justice Kagan

14:28

about what if the president orders a

14:31

coup, Mr. Sawyer

14:33

said, well, if we follow what Justice Alito

14:35

said, that might fall outside of, you know,

14:38

what is plausibly legal. But then he went

14:40

on to say, if one adopts the test

14:42

that we advance on behalf of Mr. Trump,

14:45

that might well be an official act, and

14:47

he would have to be, as I'll say

14:49

in response to all these kinds of hypotheticals,

14:51

he would have to be impeached and convicted

14:54

before he could be criminally prosecuted, because,

14:56

of course, that's his position. So he

14:58

takes a very extreme position. But I

15:01

do think what Justice Alito was suggesting,

15:03

I mean, it would be a very

15:05

small number of things

15:09

that would be carved out that wouldn't

15:12

be protected. It wouldn't be under something

15:14

like this outrageous or not even plausibly

15:16

legal use of your official powers. But

15:19

even under that test, I think there's

15:21

an argument that what Donald Trump did

15:23

here, going back to the latest point,

15:26

is just outrageous and not plausibly legal.

15:28

We got this email from Chris in

15:30

West Virginia who says, I'm confused.

15:34

Why can't SCOTUS focus on the case

15:36

before it rather than attempt to develop

15:38

a test, quote, for the ages, as

15:40

Justice Gorsuch said. Lawyers

15:43

described the lower court decision as

15:45

right and tight. Why are they

15:47

ignoring that? And Leah, I

15:49

admit that I'm confused, too, in so

15:51

many ways. Why is

15:54

the Supreme Court striving to

15:56

answer a question that nobody

15:58

asked? Certainly the special counsel did. Naskett.

16:02

It is really quite remarkable, and it's

16:04

remarkable for at least two reasons. One

16:06

is something that we have already kind

16:08

of talked about, which is that this

16:11

particular case just does not require the

16:13

court to opine on what exactly the

16:15

limits are on the ability to prosecute

16:17

former presidents for doing things

16:20

that plausibly fall within the scope of

16:22

the outer bounds of their official duties,

16:24

because the indictment in this case just

16:26

doesn't concern. These are

16:28

matters that fall within the reasonable,

16:30

plausible, or remote bounds of a

16:32

president's official duties. Again, refusing to leave

16:34

office allegedly, contesting the results of a

16:37

valid election, putting together a fraudulent slate

16:39

of electors. None of that is plausibly

16:41

within the scope of the president's constitutional

16:43

duties or any duties that are given

16:46

to the president by statute. And then

16:48

there's a second way in which the

16:50

court seems intent on expanding this case,

16:52

and that is by injecting additional questions

16:55

into the case. That is, aside from

16:57

determining whether the president might be immune

16:59

from some set of criminal prosecutions relating

17:01

to the president's official duties, some

17:04

number of justices seem to want

17:06

to use this case to put

17:08

out legal questions about whether the

17:11

constitution might prohibit applying certain statutes

17:13

to the president's core official duties.

17:15

That is, in addition to this

17:18

question of immunity, some justices were

17:20

interested in potentially opining on the

17:22

question about whether Article II of

17:25

the constitution means that certain federal

17:27

criminal laws cannot apply to the

17:29

president when the president is acting

17:32

within the scope of their official duties.

17:34

It's not even clear that that question

17:36

is part of any appeal about immunity,

17:38

nor is it clear that that question

17:41

needs to be answered in this particular

17:43

case, again, given that this particular indictment

17:45

does not concern matters within the president's

17:47

core Article II powers. Whether justices were

17:50

floating, whether they should use this case

17:52

to say, well, maybe we should announce

17:54

a general rule that no criminal law

17:56

should apply to the president unless the

17:59

statute explicitly... with the president

18:01

as among the group of people who are

18:03

subject to the criminal law. And

18:06

that too is not necessarily part

18:08

of an appeal that is supposed

18:11

to be concerned with immunity and

18:13

yet the justices seemed interested in

18:15

that question as well. And I

18:17

think all of that suggests a

18:19

court that is way too focused

18:22

on the interests of one particular

18:24

litigant, Donald Trump, to the exclusion

18:26

of the broader consequences to our

18:28

constitutional democracy. Mary

18:31

Trump's lawyer, John Sauer, cited the

18:33

1982 case Nixon v.

18:35

Fitzgerald as a test case in this

18:38

question over presidential immunity. Explain

18:40

what that case covers and then we'll pick it up after the break. That

18:43

case was a civil case. So in

18:45

contrast to a criminal prosecution, that was

18:47

someone who sued civilly. And that is

18:50

the case where the Supreme Court adopted

18:52

this test, which is the test that Mr.

18:54

Sauer wants it to apply here in

18:56

a criminal case, which is that the president is

18:58

immune from civil liability

19:01

for acts taken within the outer

19:03

perimeter of his official acts. And

19:06

that's a capacious reading. So anything

19:08

that sort of touches upon things

19:10

that presidents can do, they can

19:13

make appointments, they can set

19:15

policy for their departments and agencies,

19:17

et cetera. That's where

19:19

there's civil immunity. And that's what Mr.

19:22

Sauer wants the Supreme Court to

19:24

apply to criminal prosecutions. We'll

19:26

pick it up after the break and still

19:28

to come. What happens if the Supreme Court

19:30

delays the decision on Trump's immunity until after

19:33

the election? So

19:39

Mary, before the break, you were talking

19:41

about Nixon v. Fitzgerald.

19:43

It came up in the oral arguments.

19:46

Donald Trump's lawyers are interested in this

19:48

case as a test case. And just

19:50

to recap very briefly, Richard Nixon got

19:52

sued in 1982. The

19:54

court went to work and said presidents

19:56

are immune from civil cases being sued

19:59

essentially. the actions in question

20:01

are part of their official duties as president

20:03

within the outer bound of their official duties

20:05

as president, but not for personal stuff. And

20:07

Donald Trump's lawyers said, hey, court, this is

20:09

a great way for you to think about

20:11

this case. So let's pick that

20:13

up. How effective is Nixon

20:15

v. Fitzgerald as a test case

20:18

in the case of Donald Trump's

20:20

alleged criminality? Well, um,

20:23

I want to answer that, but I want to also make

20:25

a point when we talk about what Mr.

20:27

Trump's attorneys are arguing, even though they

20:30

argue that the Fitzgerald test is the

20:32

chest that should apply. They still claim

20:34

that a press, even for, uh, that,

20:37

that, that a president would have to

20:40

be impeached and convicted before he could

20:42

ever be criminally prosecuted

20:44

for anything within the

20:46

scope of his official act. So, um,

20:49

you know, he's got an added layer

20:51

of, uh, difficulty here that frankly didn't

20:53

seem to get any headway with the

20:55

court. To your question about

20:57

is should this be an applicable test?

20:59

I think that, you know, the courts below

21:01

rejected that, uh, especially

21:03

the special counsels brief of course,

21:06

uh, explains reasons why that test doesn't

21:08

make sense in the criminal, uh,

21:10

prosecution realm. And

21:12

I didn't really hear a lot

21:14

of justices suggesting that

21:17

would be the right test. And here's

21:19

why in the civil realm, the idea,

21:21

remember we're talking there about lawsuits

21:23

that might be for money damages,

21:25

lawsuits that might be brought by

21:27

some sort of political appointee who,

21:29

you know, got, uh,

21:31

fired by a president who's now arguing

21:34

he should be reinstated. Those types

21:36

of cases, it could be cases brought

21:38

by litigants, um, for things that the

21:40

president did before he was even president.

21:42

Right. Imagine with Donald Trump, there's lots

21:44

of people who said, look, I've worked for him. I

21:46

didn't get paid, you know, on and on and on.

21:48

Lots of them have said that. Lots of them. They

21:50

are legion. Right. And so

21:53

what the court was saying in Nixon, be

21:55

fixed Gerald was, look, we can't have a

21:57

president while he's president being tied up with

21:59

all of this sort of litigation

22:01

going on for all of these various

22:03

civil things that people might be motivated

22:06

to bring frivolous cases, you know, just

22:08

to distract the president. And

22:10

the presidency is far too important to be distracted

22:12

by those things. So a president is immune. Now

22:14

granted, when I mentioned things that would

22:16

happen before he's president, that couldn't be within

22:18

the outer scope of the official acts. But

22:21

that, but, you know, I just illustrate

22:23

that there's, there's a

22:25

lot of concern with the president having to

22:27

deal with private litigation. So even things within

22:30

the scope of this official acts, those are

22:32

the things that he couldn't be civilly liable

22:34

for while president. But in

22:36

the criminal realm, we're talking about someone, again,

22:39

going back to the constitution, who is not

22:41

taking care that the laws be faithfully

22:43

executed. We're

22:45

talking about someone who is actually

22:47

violated or is alleged to have

22:49

violated the criminal law. And so

22:51

the concerns

22:54

about, you know, distracting a president,

22:56

et cetera, are just not the

22:58

same here. And we

23:00

also remember we're not talking about a

23:03

prosecution while the person is sitting as

23:05

president. The Department of Justice has long

23:07

taken the position. You cannot criminally prosecute

23:10

a sitting president. You have to have

23:12

to wait till after he is no

23:14

longer president. So we're not talking about

23:17

distracting him or anything like that. We're

23:19

talking about holding him accountable for violations

23:21

of the criminal law and making

23:23

sure that he is not above the law. This

23:26

is from Larry in California. I'm not a

23:29

lawyer or familiar with all the legal wrangling

23:31

that goes on with cases, but why would

23:33

the Supreme Court of the United States kick

23:35

back such an important case to a lower

23:37

court? I'm assuming for clarification or further rulings.

23:40

I would think that since they are our

23:42

Supreme Court, they should be making the decision

23:44

on such an important ruling. Can't they figure

23:46

it out for themselves? Do you? So

23:50

there are instances where it is, I think,

23:52

appropriate for the Supreme Court to send

23:54

a case back down to a lower

23:56

court. So imagine, for example, that the

23:58

Supreme Court comes up. with a

24:00

totally new legal test, that it

24:02

wants the lower courts to apply

24:04

when, for example, determining whether certain

24:06

conduct falls within the scope of

24:08

the president's official duties. You

24:11

might want a lower court to take

24:13

the first crack at applying that legal

24:15

standard, and then the Supreme Court can

24:17

subsequently review their application of the legal

24:19

standard after the district court, who was

24:21

closer to the facts, has the opportunity

24:23

to develop any additional facts that might

24:25

be necessary to apply the new legal

24:27

standard, and then the court of appeals

24:29

has the opportunity to review it, and

24:31

then the U.S. Supreme Court can review

24:33

it again. And so as a matter

24:35

of legal practice and sound institutional practice,

24:37

it's not uncommon for in some cases

24:40

the Supreme Court to say, you

24:42

lower court need to take another look

24:44

at this case, but under this new

24:46

legal standard that we Supreme Court have

24:48

established, and then leading it to the

24:50

lower courts to apply that new legal

24:53

standard. I think why it's unnecessary in

24:55

this case is that no matter what

24:57

precise definition the Supreme Court adopted of

24:59

the president's outside bounds of official

25:01

duties, it's not difficult to

25:03

determine that special counsel Jack Smith's indictment

25:06

just does not concern matters that are

25:08

plausibly within the scope of the outer

25:10

bounds of the president's authority. And so

25:12

there's no need to ask the lower

25:14

courts to do additional factual development or

25:17

to apply that legal standards to tricky

25:19

facts, because it's just not that difficult

25:21

of a legal question. Yeah. Well,

25:24

now we're deep into this question of

25:26

timing, right? How fast will all of

25:28

this go? Will Donald Trump face accountability

25:30

before the election? Phil in Massachusetts emails

25:32

to say, if SCOTUS sends this case

25:34

back to the DC court with Judge

25:36

Tanya Chutkin for further testimony on what

25:38

is personal versus what is official acts

25:40

by the president, does the Supreme Court

25:42

decision limit or restrict the DC judge

25:44

to having to either go to a

25:46

full trial or just a hearing alone?

25:49

And Leah, I think what Phil is

25:51

getting at is what you've alluded

25:53

to a couple of times. If

25:56

the Supreme Court says we have a new

25:58

test, lower court, figure out what is official. which

26:00

of these charges is official, which of

26:02

these charges is personal, that

26:04

just means it goes

26:06

pretty slowly, right? Well,

26:09

it adds an additional layer of legal

26:11

process that the lower court would have

26:13

to engage in before beginning any trial.

26:15

Remember that before the Supreme Court took

26:18

this case, Judge Tanya Chukken had suggested

26:20

that there would have to be about

26:22

80 or so days of

26:24

pre-trial proceedings in order to begin any

26:27

trial on the election interference charges as

26:29

the two sides work out, you know,

26:31

possible limits on what evidence can be

26:34

introduced, what kinds of instructions the jury

26:36

is going to receive on that evidence,

26:38

and other matters to be sorted out pre-trial.

26:40

So if you take those 80 days and

26:43

then you imagine that the U.S. Supreme Court

26:45

tells the lower court, well, you also have

26:47

to engage in an analysis of

26:50

whether there are any parts of the

26:52

indictment that fall within the scope of

26:54

the president's official duties and therefore can't

26:56

be the basis of criminal liability, and

26:58

if so, whether they could nonetheless be

27:00

introduced as evidence for some other purpose

27:02

or purposes, then that would add to

27:05

the likely 80 days that the

27:07

judge had indicated would probably

27:09

be needed for pre-trial processes before

27:12

any trial begins, and that just

27:14

makes the possibility of a trial

27:16

before the election pretty unlikely. We

27:19

heard from Katie in Ohio who emails, I

27:22

was surprised that while arguing to a

27:24

bunch of originalists, the intent of the framers

27:26

to avoid having a king was not introduced.

27:28

To me, this alone would show a lack

27:31

of intent for a president to be

27:33

immune from criminal prosecution, and fill in Florida

27:35

emails if the aim is to grant complete

27:37

immunity to presidents, and there is no

27:39

mention of this in the Constitution, shouldn't this

27:41

require a constitutional amendment? Mary,

27:44

what do you think? So

27:46

that's so interesting because Justice Kagan

27:48

picked up on a very similar point and

27:50

said the framers did not put an immunity

27:52

clause into the Constitution. They knew how to

27:54

do so. There were immunity clauses in some

27:56

state constitutions and they didn't do

27:58

it. Nevertheless, And so,

28:00

you know, I think it's a good

28:03

point, but the fact is this other

28:05

immunity we were just discussing under Fitzgerald,

28:07

the immunity from civil liability, that's also

28:09

not in the Constitution, but it's something

28:11

that the Supreme Court has sort of

28:13

read into it based on separation of

28:16

powers principles as

28:18

well, the idea of executive privilege, right?

28:21

This has been litigated now several times,

28:23

including in the Trump v. Thompson case,

28:25

the case that involved the

28:27

House select committee's request for presidential

28:30

records where Mr. Trump claimed executive

28:32

privilege, even though his claims were

28:34

denied there and the House select committee

28:36

was able to obtain those records. This

28:39

idea of executive privilege, the privilege to

28:41

not have to, you know, provide information

28:43

to Congress or to a court, that

28:46

also is not in the Constitution, but

28:48

it's been something that the Supreme Court

28:50

has nevertheless interpreted as covered

28:53

by the Constitution under separation of

28:55

powers principles. So I

28:57

take the caller's point and I'm very

28:59

sympathetic to it, but this is part

29:01

of a line of immunities

29:03

and privileges for presidents that

29:06

the Supreme Court has developed over decades

29:08

now. But I think what you

29:11

saw here is Justice Kagan and

29:13

other justices pushing back on applying

29:15

that to criminal responsibility. Well, as

29:17

we ruminate over the timing here,

29:19

I mean the bottom line, Leo, what do

29:21

you think are the stakes if

29:24

the Supreme Court doesn't send this

29:26

case back to the lower courts

29:28

in such a manner that allows

29:30

for a trial before the

29:32

election? What does that mean for voters? What does that

29:34

mean for the rest of us? It

29:37

is really difficult to overstate the stakes

29:39

of this case. I mean, there is

29:41

a possibility that the Supreme Court is

29:43

going to suggest that there are

29:46

some matters that fall within

29:48

the scope of the president's official duties

29:50

that cannot be subject to the laws,

29:52

criminal laws at all. There's some possibility

29:54

that they will suggest that the president's

29:56

official duties to which the president might

29:59

be entitled to. on immunity include

30:01

a refusal to leave office, efforts to

30:03

interfere with the result of a valid

30:05

election, and potentially putting together

30:07

a fraudulent slate of electors. I think

30:10

all of that should be deeply concerning,

30:12

as is the possibility that the court

30:14

is slow walking this case, has been

30:16

slow walking this case, use the oral

30:19

argument to inject additional legal questions into

30:21

this case in order to prevent the

30:23

American people from being able to have

30:25

a jury of Donald Trump's peers decide

30:28

whether he engaged in unlawful election interference

30:30

the last time he was in office before

30:32

they decide whether to put him in that

30:34

office again. We have just a minute left here,

30:37

but I'd briefly like to hear from both

30:39

of you what this means for future presidents.

30:41

This is not just about former President Trump.

30:43

Mary? So it's interesting because

30:46

both parties came into this with opposite views.

30:48

Mr. Sauer arguing for Mr. Trump that, you

30:50

know, you have to have immunity or you're

30:52

never going to have a president who can

30:54

actually take the bold action that's required to

30:57

be president. Yet for all of

30:59

our history, that hasn't been a problem, right?

31:02

That hasn't stopped presidents

31:04

from taking the bold action that they need to take

31:06

when they need, when it's required to

31:09

execute their different constitutional responsibilities, including responsibilities

31:11

that have to do with our engagements

31:14

overseas, et cetera. The other side, of

31:16

course, as we talked about earlier, was

31:18

very concerned that if you grant some

31:21

sort of broad immunity, then you've

31:23

really just given a license to

31:26

future presidents to break the law

31:28

with impunity. And that's a pretty

31:30

concerning and alarming prospect. Leah,

31:32

your thoughts and just a sentence or two? I'd

31:36

add that it is about what Justice

31:38

Jackson called whether to make the office

31:40

of the president effectively a crime center.

31:44

And we will leave it there. That's

31:46

Leah Litman, the co-host of the podcast,

31:48

Strict Scrutiny, and a professor at the

31:50

University of Michigan Law School. With us,

31:52

Mary McCord, the executive director at the

31:54

Institute for Constitutional Advocacy and Protection. She's

31:56

also a professor of law at Georgetown

31:58

University Law Center and co- host of

32:00

the Prosecuting Donald Trump Podcast. Today's

32:03

producer was Michelle Harvin. This

32:05

program comes to you from WAMU,

32:07

part of American University in Washington,

32:09

distributed by NPR. I'm Jen

32:12

White. Thanks for listening and we'll talk more soon.

32:14

This is me. Thank

32:30

you.