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0:35

ng right guy. For.

0:48

Your information, the Supreme Court does well.

0:51

We were injured. More restraint. He's not

0:53

a First Amendment. I.

0:56

Printed out a sigh of specially for him

0:58

Using has favored far to Jerram on the

1:00

who have a favorite. I

1:03

read on the internet that it's not against the

1:05

law for me to go to the bathroom while

1:08

the fastest. The help scientists are soft see perfect.

1:10

But is it against the law? though? Hello!

1:15

And welcome building arguments. This is episode

1:17

one thousand Twenty eight. I euros Tommy

1:19

Smith and that's your real life Attorney

1:21

Mike Cameron. How you doing Man, I'm

1:23

feeling completely immune from prosecution. Have area.

1:26

Where. You the president I just think everybody

1:28

my been really after reading this. yeah I

1:30

think it's only a lead us friends that

1:32

don't matter the matter or arguments in the

1:34

immunity case. This is one Matt where I

1:36

am I for one need a way because

1:38

I saw have a wide range of reactions

1:41

I really did I mean on one sense

1:43

it was like oh great this looks horrible

1:45

and other since I was a little bit

1:47

encourage because there's a lot of reaction like

1:49

on reddit and places that was just like

1:51

also the courts fake now knows I well

1:53

I'm always of and that like I do

1:55

want the world. and the contrary to realize that

1:58

the cart is fake but i don't know I

2:00

listen to the oral arguments and like I don't

2:02

totally get it I don't totally get the certainty

2:04

of a lot of the response, you know And

2:06

so I'm wondering what's going on there and I'm

2:08

excited to have you break it down for us

2:10

So that's our main story today and I think

2:12

we're gonna need all the time. Yeah, I'm with

2:14

you there There's a lot of a lot of

2:16

strange stuff to talk about and I think this

2:18

is one of those things We're just kind of

2:20

playing through some clips and showing what these people

2:22

are actually arguing will expose a lot of what's

2:24

going on here All right. Well, that's after the

2:26

break patreon.com/law. Oh, by the way, Matt are acting

2:28

huge hit huge hit Dramatic reading of the transcripts.

2:31

I'm excited to do more that there's lots

2:33

more where that came from There's more transcripts

2:35

to go through for one, but also, you

2:37

know, we're always down for some more acting Maybe

2:40

we'll enlist some help and that's on patreon.com/law That

2:42

was a long extra bonus portion of the last

2:44

episode So make sure if you didn't get a

2:46

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2:48

course you can avoid the ads you can get

2:50

the goodies that you can get the extra stuff

2:53

and you can get that Warm fuzzy feeling of

2:55

having supported the show so patreon.com/law and after this

2:57

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4:13

right, Matt. So where do you want to begin? Two and a

4:15

half hours oral arguments. I guess you got to pick an entry

4:18

point for it. Yeah. Well, let's set

4:20

this up. I just want to make sure that everybody's

4:22

got the background here and understand how we got to

4:24

this ridiculous point because this is the third time the

4:26

Supreme Court has had to look at the January 6th

4:28

case in the last two months. I don't think any

4:31

court has ever been so involved in a presidential election

4:33

directly or otherwise. At the same time, I think I

4:35

could be wrong, but I believe we're at the lowest

4:37

approval rating that the Supreme Court has ever had at

4:39

the same time that they're trying to decide a presidential

4:41

election. So that's not great. Of course, we

4:43

know that they had the Colorado ballot case that we

4:46

discussed a couple months ago in which they determined that

4:48

insurrectionists basically can't be stopped from going on the ballot

4:50

pretty much for any reason. We had the obstructing official

4:52

proceedings under 18 U.S.C. 1512C2 that we discussed I

4:56

think a couple of weeks ago now in

4:59

context of the other January 6th defendants and

5:01

whether or not that statute holds up for

5:03

obstructing official proceedings. And that actually comes up

5:05

in this too. And then now on April

5:07

25th, we just had this immunity argument about

5:09

whether or not former presidents can be prosecuted

5:12

and convicted of crimes. Even as I say

5:14

that out loud, that doesn't seem like something we

5:16

should be arguing about. This is just a former

5:18

president's question because there's a lot of talk about

5:20

like if they were making this decision, if they're

5:22

having this person killed or having that. Was it

5:25

all in the context of being prosecuted for it

5:27

after their presidency though? The question presented in this

5:29

case is asked to former presidents because it limited

5:31

at least that much. So that's another question. And

5:33

actually, I have a clip actually of Brett Kavanaugh

5:35

from a while back. Brett Kavanaugh has an opinion

5:37

about presidents being prosecuted. I found this, this is

5:40

from quite a while ago. And this is a

5:42

very young, handsome Brett Kavanaugh at a

5:44

Georgetown law conference. And

5:46

I just think this is kind of interesting because this

5:48

came up during his confirmation that he had

5:50

some opinions about former presidents and presidents generally

5:53

being prosecuted. So here he is at a

5:55

Georgetown law conference. That last comment raises the

5:57

question whether the president is subject to criminal

6:00

indictment at all which is a question that has

6:02

been a lurking constitutional issue for a

6:05

long time in which at some point here should

6:07

be resolved so that we can determine

6:09

whether the Congress or an independent counsel should

6:11

investigate the president when his conduct is at

6:14

issue. I tend to think it has to

6:16

be the Congress because of the kind of

6:18

attacks that we've seen recently

6:20

and because of the types of issues that

6:23

were just pointed out. It is war and if it's

6:25

going to be war it's got to be Congress, not

6:27

an isolated prosecutor appointed by a panel of three judges

6:29

we've never heard of. Now this is amazing because this

6:32

is Brett Kavanaugh. Yes, Brett Kavanaugh in 1998. So first

6:35

of all he is just coming off of the Clinton

6:37

prosecution, the independent counsel investigation with Ken Starr. He worked

6:39

for Ken Starr for quite a while as you might

6:41

know and he was all about

6:43

the Ken Starr prosecution. He thought Bill Clinton was

6:45

disgusting and he was ready to take him down

6:47

for whatever he had in front of him and

6:50

then he about faced after the

6:52

independent counsel statute lapsed because Congress

6:54

let it lapse, there is

6:56

no such thing as independent counsel at this point, there is

6:58

just special counsel and Brett Kavanaugh has gone out hard

7:01

against the idea of independent counsel after having worked on

7:03

the Ken Starr investigation which I think is pretty interesting

7:05

and that comes up in this argument. He's very concerned,

7:07

he goes on like this monologue about independent counsel and

7:09

how dangerous it is even though that's not even the

7:12

law right now and nobody is talking about independent counsel,

7:14

he just decides to talk about it. Here

7:16

it is in 1998, here is young Brett Kavanaugh probably

7:18

having no idea that he's ever going to be counted

7:21

on to decide whether or not a president can be

7:23

indicted saying that he doesn't think a president can be

7:25

indicted at least a sitting president. What's the difference between

7:27

independent counsel and special counsel? I don't remember. Independent counsels

7:30

were appointed by a panel of judges where a

7:32

special counsel as we remember from recent investigations are

7:34

appointed by the attorney general for specific things and

7:36

independent counsel's investigation could run on to whatever they

7:38

found in front of them as you know the

7:41

Watergate. Ken Starr went on forever. Right and just

7:43

got into every part of Bill Clinton's life when

7:45

they were just supposed to be looking at Watergate

7:47

whereas you might remember from the Mueller investigation right

7:49

you have a kind of a delineated list of

7:52

things the special counsel is supposed to be looking

7:54

at. So that does come up here

7:56

because Brett Kavanaugh and the conservatives are very concerned about

7:58

the deep state and about the FBI and

8:00

about the possibility that a president is going

8:02

to be wrongfully persecuted instead of prosecuted. In

8:05

1998? No, in this

8:07

argument. I got you, yeah. Sorry, I

8:09

forgot. And he would know. Yeah. Take

8:11

it from me, we had way too much power in that

8:13

situation. Which, I don't know, fair enough, I guess. Yeah.

8:16

So this all comes, of course, from the DC prosecution

8:18

in which Jack Smith indicted Donald Trump for a long

8:20

list of things having to do with January 6th. Essentially

8:23

the entire special electors, fake electors scheme

8:26

in which they were trying to get

8:28

Mike Pence to swap in some

8:30

of their electors because of allegations of election

8:32

fraud. There's a long list of things alleged

8:34

in that indictment. And there's going to

8:36

be a pretty open question about whether some of

8:39

these are private acts done by somebody who's running

8:41

for president or somebody who's actually the president in

8:43

his official capacity. So Trump files

8:45

a motion to dismiss with the DC District Court

8:47

in October 2023. Sorry, can

8:49

I already stop you there? Because there's so much

8:52

of the argument. This was one that was particularly

8:54

difficult for me to follow as not the expert

8:56

because I don't know why. Normally, I feel like

8:58

I can follow the arguments. Maybe it's

9:00

because pre-lager wasn't there and she's the best. I

9:02

don't know. I'm just sure. But

9:05

anyway, there was so much talk of private

9:07

act versus official act or whatever it is.

9:09

And I didn't understand why that would matter.

9:11

Is that something that already matters? Is that

9:13

something that only matters after the Supreme Court

9:15

decides to ruin the current state of the law? I

9:17

didn't really understand why that made a difference.

9:19

Well, we're just in completely unprecedented territory because

9:22

no former president has ever been prosecuted before.

9:24

But obviously, I think the example was given

9:26

at some point of if there was some

9:28

sort of like a messy love triangle and

9:30

President Trump ended up shooting Melania's lover or

9:32

something, right? Just completely private murder. Obviously

9:35

there's no argument to be made that that is within

9:37

the scope of his duties. This is a private murder.

9:39

Can you please... Right. As

9:42

opposed to the kind of public murder where you send out

9:44

a drone strike to kill a US citizen in Libya

9:46

or whatever, right? And that's something that the government council

9:48

was making a big point. They brought up the idea

9:50

that the Obama administration was out there doing drone strikes

9:52

all the time, including an American citizen. You know, I

9:54

have talked about this before. Anyway, we have some sympathy

9:56

for the idea that presidents maybe should be completely exposed

9:58

when they... Well, that's a good question. the laws in

10:00

this way. But they also have the benefit of the

10:02

Department of Justice and the Office of

10:05

Legal Counsel telling them that some of these things

10:07

are legal, including that drone strike. And that's the

10:09

point that the government made here. I have issues

10:11

with that. I still think that there should be

10:13

possibility of prosecution for doing things, even if the

10:15

Office of Legal Counsel tells you, because you can

10:17

imagine a bill bar type prosecutor who might just

10:19

tell you that everything's fine. Well, you know, they

10:21

talked about that and I was thinking, look, at

10:23

least that would give us something because then could

10:25

we hold bill bar accountable? Like if we could

10:27

hold somebody accountable. In that case, let's say they

10:29

did advise Obama that this was cool. And then

10:31

it turns out it wasn't. If you could punish the

10:33

legal counsel for having advised that, then I don't think

10:36

it'll be that easy to be like, well, you'll just

10:38

find some legal counsel to say it's okay to kill

10:40

people. It's like, well, not if their ass is on

10:42

the line. So that would at least give us something.

10:44

But now it feels like we just have

10:46

nothing when it comes to that. I agree. Everybody should

10:48

be accountable all the way down. And I'm very concerned about

10:50

accountability, depending on how the court comes out on this.

10:52

But speaking of bill bar, I've got an appearance

10:55

coming here in this episode. I

10:57

think that'd be important to play this just to remind

10:59

you about how important this particular

11:01

argument actually is, because there are a lot

11:03

of things going on this week. There are

11:05

a lot of other things we could have

11:08

talked about. And I still want to talk

11:10

about including Harvey Weinstein, obviously, the Grants Pass

11:12

homelessness case, so much so many of the

11:14

things happening. But this is the most important

11:16

argument case of the term. And it is the last

11:18

case being argued this term, and it's going to be

11:20

a big one. So I thought this clip from Bill

11:22

Barr really reminds us why. I hear from

11:24

a lot of Republicans who defend Trump saying,

11:26

well, that's a hypothetical and that's ridiculous. But

11:29

Alyssa Faragriffin, who was Trump's

11:31

communications director, posted yesterday and

11:33

said that you were present

11:36

at a moment when Trump suggested

11:38

executing the person who leaked information that

11:40

he went to the White House bunker when

11:42

those George Floyd protests were happening outside the

11:44

White House. Oh, my God. Do you remember that?

11:46

I remember him being

11:49

very mad about that. I actually don't remember him

11:51

saying executing, but I wouldn't dispute

11:53

it. A

11:56

president would lose his temper and say things like that.

11:58

I doubt he would. actually

12:01

carried it out. Great.

12:03

He would say that on another occasion. So

12:06

comforting. The president had a... I

12:10

think people sometimes took him too literally. He

12:13

would say things like, similar to

12:15

that in occasions to blow off

12:17

steam. But I wouldn't take

12:19

him literally every time he did it. Why

12:22

not? Because at the end of

12:24

the day it wouldn't be carried out and you could

12:26

talk sensitive. Just because it's not carried out and

12:28

you could talk sensitive, doesn't that still mean that

12:31

the threat is there? Oh boy. That's

12:33

comforting. In the same interview it goes

12:35

on to explain about why Joe Biden is a danger to

12:37

the country and he's voting for Trump. So after

12:40

telling it, this is who they are. But just the

12:42

idea that Trump was just going around being like, yeah,

12:44

we should shoot that guy. You

12:47

remember the bunker thing obviously when he got so embarrassed because

12:49

he went down to the bunker during the Flagstaff's Matter protests.

12:51

Gosh, I did not remember that. There is so much bullshit

12:53

to remember that that is not what I remembered. You

12:56

know, somebody had an idea a while back that there should

12:58

just be like a national holiday where we just tell each other

13:01

one Trump story. Honestly, I have thought about that for this

13:03

podcast. I

13:05

actually wanted to do, we could do

13:07

like a day in the Trump history

13:09

here and there, but he's still making

13:11

more. So we've got to

13:13

keep up with that and we'll figure it out. Hey,

13:16

if you have any ideas, write in or something, send us a Patreon message.

13:20

I would love to actually remember a lot of the

13:22

worst stuff because it just was too much. But anyway,

13:24

I completely forgot about this one. And

13:27

he actually was using the same logic that Alito

13:29

and others are using in this argument that, well,

13:31

even if he had an unlawful order like that, nobody

13:33

would carry it out. Yeah, exactly. Trump

13:35

would never surround himself with people who would just carry out orders for no reason.

13:39

Gosh, that part, I don't know if we're skipping ahead with

13:41

that, but yeah, that part of the oral argument drove me

13:43

nuts because it's like, okay, we're here

13:45

to decide should he be immune from

13:47

prosecution. And so the idea

13:49

that like, surely if he tries to do something

13:51

horribly illegal, no one will follow his order. That

13:53

to me is kind of irrelevant because like, well,

13:56

what if they do? Why would you say, yeah,

13:58

he can be immune because someone else will. People

14:00

refuse to break the law, but what if they

14:02

don't? If that's true, then he'll

14:04

never be prosecuted. So why do you even have a

14:06

problem with it? Right? I mean...

14:09

And you still allowed it to go into his head that he can say these things and make these

14:11

orders. So I mean, at the end of

14:13

the day, you're opening the door. It's really bad. There's

14:16

no justification. But he's voting for Trump because Biden's

14:18

the border or something. I don't know. Clear and

14:20

present danger to the United States. Yeah, of course.

14:23

Oh boy. So as we know, just

14:25

to recap on how we got here, DC Circuit issued

14:27

a 57 page decision on February 6, 2024. Very

14:30

well-reasoned decision, I thought. I think the Supreme Court easily could

14:32

have just affirmed and still could just affirm this decision, but

14:34

that's probably not what they're going to do. They

14:36

took most of February to decide whether or not they

14:38

would review that decision when they easily could have decided

14:40

pretty quickly to just review it. And

14:43

then as we've discussed before, they set argument for

14:45

the last possible day, which was last week, April

14:47

25th. And that was the last day of

14:49

term. They really went out with a bang on this one. The

14:52

question presented in this case... So the original, I just

14:54

wanted to note, because we talked about this before, but

14:56

it was reframed by the court because they can always

14:58

do that. So the original

15:00

framing from Trump's team was whether

15:03

the doctrine of absolute presidential immunity,

15:05

absolute presidential immunity, there's no such

15:08

doctrine, includes immunity from

15:10

criminal prosecution for a president's official

15:12

acts, i.e. those performed within the

15:14

outer perimeter of his official responsibility. And that's

15:16

from Nixon v. Fitzgerald, but that's a civil

15:18

case, which we'll talk about. And

15:21

then the second question they wanted to review was

15:23

whether the impeachment judgment clause at the U.S.

15:25

Constitution and principles of double jeopardy foreclosed the

15:28

criminal prosecution of a president who has been

15:30

impeached and acquitted. And the

15:33

court didn't even consider that as a

15:35

question to be raised. Like they did not want

15:37

to hear about this because it's such a stupid

15:39

question, and I'm sure we can talk more about

15:41

how stupid it is. I don't even know if

15:43

we need to talk more about how stupid it

15:46

is. So they narrowed it down and they said,

15:48

no, look, this absolute immunity thing, no. The question

15:50

is going to be the only question we want

15:52

to hear about is whether and if so, to

15:54

what extent does a former president enjoy presidential immunity

15:56

from criminal prosecution for conduct alleged to involve official

15:58

acts during his tenure in office? So that's

16:00

not exactly what the DC circuit said. It's not

16:02

exactly what Trump was asking for, but they're trying

16:04

to fight a way to limit this and thread

16:06

the needle so that they're only talking about official

16:08

acts. Of course, that raises a whole other specter

16:10

of what's an official act or not, which we're

16:13

going to get to. And I can tell this

16:15

is one of the things that you're most concerned

16:17

about, I understand, because the DC circuit didn't give

16:19

a lot of guidance. I will read from the

16:21

DC circuit's opinion, which I thought was very good,

16:23

and they're holding here. We cannot accept former President

16:25

Trump's claim that a president has unbounded authority to

16:27

commit crimes that would neutralize the fundamental check and

16:29

executive power, the recognition and

16:31

implementation of election results. Nor

16:34

can we sanction his apparent contention that the

16:36

executive has carte blanche to violate the rights

16:38

of individual citizens to vote and

16:40

to have their votes count. At bottom, former

16:42

President Trump's stance would collapse our system of

16:45

separated powers by placing the president beyond the

16:47

reach of all three branches. Presidential immunity against

16:49

federal indictment would mean that as the president,

16:51

the Congress could not legislate, the executive could

16:54

not prosecute, and the judiciary could not review.

16:57

We cannot accept that the office of the presidency places

16:59

its former occupants above the law for all

17:01

time thereafter. Careful evaluation of these

17:04

concerns leads us to conclude, et cetera, et

17:06

cetera. Or even a not even a very

17:08

careful evaluation, which is like a pretty quick

17:10

evaluation, actually. Honestly, we didn't even evaluate that

17:12

hard. It's super obvious. Yeah, can the president

17:15

be charged in convicted crimes? Yes, he can.

17:17

It didn't take 57 pages. Should the president

17:19

be a God among men who's not ever

17:21

liable for anything ever for all time? Yeah.

17:23

No. Sure. That's pretty clear. Yeah,

17:25

I mean, in their briefing, and

17:28

I just went through and kind of read

17:30

the briefing on both sides, kind of going

17:32

down to the lower courts, the president's team

17:34

was insisting that when it said in Marbury

17:36

v. Madison, of course, Marbury v. Madison being

17:38

one of the most fundamental cases, you know,

17:40

in American juror's views, kind of kicking

17:42

everything off and saying the judiciary has the right to

17:44

review things, there was a comment in Marbury v. Madison

17:46

that a president's official acts can never be examitable by

17:48

the courts. I don't think that's what they

17:51

meant. I'm pretty sure that John Marshall

17:53

did not mean that you can't ever examine whether

17:55

or not the president committed a crime, and

17:57

that's what the DC circuit said. This is not how we can read it.

18:00

So that's what we're coming up on, and that is

18:02

how we get to April 25th and

18:04

two hours and 40 minutes

18:06

of argument. And I wanted to explain in a

18:08

quick sidebar here why it took so long, because

18:11

Supreme Court arguments didn't used to take this long

18:13

when you're just having two lawyers argue. Two

18:16

hours and 40 minutes, this is scheduled for an hour. There's

18:18

an interesting change in practice that occurred during

18:20

the pandemic. I haven't heard discussed very much,

18:23

and I don't know if it's been discussed on this show before, but

18:25

I think it's really worth mentioning before we go forward, because it really,

18:29

I mean, this thing was so long,

18:31

so unnecessarily long, because they went down

18:33

all of these different little rabbit holes

18:35

and avenues and thought experiments and hypotheticals,

18:38

mostly completely useless and having nothing to do with January 6th.

18:41

But during COVID, the justices started appearing by

18:43

phone. They would not appear on Zoom, of course, because

18:45

the video just isn't an option. Even when they're just

18:47

having their faces on video, they could not count, and

18:50

it's the idea of being on video. So they had

18:52

telephonic appearances and they held Supreme Court by phone for

18:54

the first time in US history. And so because they

18:56

couldn't see each other, obviously, as sometimes happens on a

18:58

podcast, we do talk over each other once in a

19:01

while, ask questions at the same time, say things at

19:03

the same time. So rather than the

19:05

kind of free-for-all format that we're used to in the Supreme Court,

19:07

where a party gets up and has

19:09

a little two-minute intro, and then has 28

19:11

minutes, essentially, to get peppered by all these

19:14

questions from the nine justices, they adopted something

19:16

called Siri Adam questioning, which is when they

19:18

ask questions in order of seniority. And

19:21

essentially, you just have to get a little Socratic

19:24

dialogue going with each one of the justices. Somebody described

19:26

it as having to do nine arguments for

19:28

three minutes each. And it really changes the

19:30

nature of the whole thing. And it

19:32

also doesn't go toward your time. So the free-for-all

19:34

part is when the 30 minutes happen, but they

19:36

can just go on as long as they want,

19:38

and it seems like they do during the Siri

19:40

Adam part. And it really breaks up

19:42

the whole flow of things because instead of having one

19:45

justice kind of coming back and piggybacking out of

19:47

their justices' question, or being able to follow up

19:49

or expand, you just have these kinds of long

19:52

lines of questioning, and then somebody else picks up

19:54

a completely different long line of questioning. You forget where

19:56

you were. No wonder it couldn't follow it. I don't

19:58

know, I understand. Apparently what they did after. In

20:00

September 2021, they adopted this

20:02

hybrid system because they're back in the same room

20:04

again and they decided that they could do the

20:06

free-for-all followed by the seriatim because everybody liked that

20:09

so much. The strangest side effect from the seriatim

20:11

questioning is that Clarence Thomas started talking. Yeah,

20:13

I remember that. Yeah. He'd gone

20:15

about 10 years at one point then asking a question and

20:18

his official position on this, and I have to respect this,

20:20

Clarence Thomas is a southern gentleman at the end of the

20:22

day, and his official position was he just

20:24

didn't want to interrupt people, which is

20:26

a funny position for a judge to have because that's a big

20:28

part of a judge's job. So apparently, no longer having

20:30

to interrupt people, he has been trying to think

20:33

things out and ask these questions in seriatim and

20:35

he's been more participatory. So that's been an interesting

20:37

side effect if this change, but

20:39

that is why the whole thing took so

20:41

long. The parties today, obviously, were the president

20:43

and Jack Smith's office. The president was represented

20:45

by John Sauer, who is a pretty well-known

20:47

conservative litigator, East Beach Solicitor General

20:49

of Missouri. He's participated in quite a lot

20:52

of, I would call, frivolous conservative litigation, including

20:54

that really big suit involving all the states

20:56

after the election where they all tried to

20:58

claim that election fraud was somehow harming different

21:01

states. It was a big mess. Also

21:04

various immigration litigation that I hold against him as

21:06

well. So John Sauer is a true believer from

21:08

what I can tell. On the other side, you

21:10

have Michael Draven, who is, you might remember from

21:12

Mueller's team, he worked pretty heavily on the second

21:15

half of the Mueller report. Bit of a scandal

21:17

with Michael Draven at this argument, just to mention

21:19

Supreme Court practice again. He

21:21

showed up wearing a regular suit. And

21:24

if you know anything about Supreme Court practice, the

21:26

male lawyers representing the government are supposed to be

21:28

wearing a morning coat. And

21:30

he did not do that. And Alito at one point

21:33

asked him kind of pointedly, are you representing the government

21:35

today? I didn't

21:37

really comment directly on his outfit, but I think that's what

21:39

that was about because obviously he's representing the government. Right? Well,

21:42

I think the Supreme Court can't get any stupider. I

21:44

don't. They're not allowed to show

21:46

any of it. This is only audio. It's

21:49

only for what? Them? Are

21:52

they confused by the... Honestly, they shouldn't... They should

21:54

be allowed to wear casual Friday. Like who cares?

21:56

Nobody can see. Wear a Hawaiian shirt. Yeah, shorts,

21:59

whatever you want. I remember they used

22:01

to have, I probably still do, I remember I think

22:03

it was Lena Kagan telling the story about how they

22:05

had like an extra morning jacket that you had to

22:07

squeeze around in one way. Yeah, like the fancy restaurants

22:09

where they like, hey, here, you can have the loner

22:11

coat. Yeah. Right, yeah. That would

22:13

be really funny. But it is, it's just extra funny

22:15

to me, and I guess just sad and pathetic too,

22:17

that at the time when we're debating one

22:19

of the most important questions that we've looked at at the Supreme

22:21

Court in a long time, that, you know,

22:23

Alito's still kind of at the back of his mind thinking, did you

22:26

show up, you know, with your dress code? Or

22:28

are we complying with dress code here? This

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25:29

So we have this thing queued up. Now

25:31

C-SPAN does an amazing thing with oral arguments.

25:33

I recommend to everybody. Where you

25:35

can just go and get the oral argument on C-SPAN

25:37

and they have them bookmarked. Every little piece of everything

25:40

that happened. So I wanted to play a few of

25:42

these bookmarks. You'll taste the opening so you can get

25:44

a sense of where Mr. Sauer is coming from. Without

25:47

presidential immunity from criminal prosecution,

25:50

there can be no presidency as we know it.

25:53

For 234 years of American

25:55

history, no president was

25:58

ever prosecuted for his official acts. Oh.

26:01

The framers of our Constitution viewed

26:04

an energetic executive as essential to

26:06

securing liberty. If

26:09

a president can be charged, put on

26:11

trial, and imprisoned for his most controversial

26:13

decisions as soon as he leaves office,

26:16

that looming threat will distort the

26:19

president's decision making precisely when bold

26:21

and fearless action is most needed.

26:24

You get the idea. Boy, I can't with

26:26

the energetics. He's just so energetic. It's why he

26:28

can't sit in court, and it's why he needs

26:30

to be immune forever, forever. I guess that's kind

26:32

of the same thing, really. And

26:36

again, one thing you might notice is

26:38

they really go out of the way. Trump's clear,

26:40

and most of the justices go out of their

26:42

way not to mention January 6th, the events of

26:44

January 6th, the fact that there was a false

26:46

electoral scheme, anything to do with what's actually an

26:48

indictment. And they're very insistent on talking

26:50

about other hypotheticals and other presidents and other things that

26:52

have happened. And of course, you can imagine why. We

26:55

don't really want to have to think about that. And that was

26:57

the same thing, of course, in the Colorado case. They didn't mention

26:59

January 6th once, really. And the

27:02

same thing even in the case we're

27:04

talking about a couple weeks ago with that statute that the

27:06

January 6th defendants were charged under, that they were barely talking

27:08

about what they did. And I just have

27:10

a problem with that. I think we should be

27:12

talking about what they did. Yeah, ostensibly, as Gorsuch

27:14

said, because we're crafting a rule for the ages,

27:16

he said. For the ages, yeah. So you got

27:18

to make sure. But it is

27:20

kind of important. Like in one sense, OK,

27:23

I do get, like you do want to

27:25

make sure if you're crafting rules for everybody

27:27

that you don't get them too hyper specific

27:29

to the case at hand. I can understand

27:31

that. You want to look at like, wait,

27:33

but won't this apply in these other set

27:35

of facts? And that could be bad. Like

27:37

that makes sense, right? You don't want

27:39

to accidentally have something apply to things. But on

27:41

the other hand, when this

27:44

is an extremely unique and one off

27:46

situation and you have the asshole Trump

27:49

attorney arguing like, look, this has never

27:52

happened before in all our years. I

27:55

think it is quite relevant to be like, yeah,

27:57

because we haven't had a president this criminal before.

28:00

Nobody has actually tried to overturn an election in

28:02

any way. That's just not happened. I don't know.

28:04

I heard something about Rutherford B. Hayes in there.

28:06

I don't know what that was about. We'll get

28:08

to that, but it's certainly not relevant. So

28:11

here's something that I never thought I'd see in

28:13

a bookmark in a Supreme Court argument. Justice

28:16

Sotomayor question. Assassination hypothetical. Let's go

28:18

to that. Malem

28:21

in se is a concept

28:23

long viewed

28:25

as appropriate in law that there's

28:27

some things that are so fundamentally

28:29

evil that they have to

28:31

be protected against. Now,

28:34

I think, and

28:38

your answer below,

28:40

I'm going to give you a chance to say

28:42

if you stay by it, if

28:45

the president decides that

28:48

his rival is

28:51

a corrupt person and

28:54

he orders the military or

28:56

orders someone to assassinate him,

28:59

is that within his official acts for

29:02

which he can get immunity? It

29:04

would depend on the hypothetical vacancy that

29:06

could well be an official. They could

29:09

have. Why? Because he's doing it for

29:11

personal reasons. He's not doing it like

29:15

President Obama is alleged to have done

29:17

it. To protect the country from a

29:19

terrorist. He's doing it

29:21

for personal gain. And isn't

29:24

that the nature of the allegations here? That

29:27

he's not doing them, doing

29:29

these acts in furtherance of

29:32

an official responsibility.

29:35

He's doing it for personal gain. I

29:38

agree with that characterization of the indictment and

29:40

that confirms immunity because the characterization is that

29:42

there's a series of official acts that were

29:44

done for an on-law. No, because

29:47

immunity says even if

29:49

you did it for personal

29:51

gain, we won't hold you

29:54

responsible. How

29:57

could that be? strong

30:00

doctrine in this court's case law in

30:02

cases like Fitzgerald. Well, we go back

30:04

to Justice Thomas's question, which

30:06

was, where does that come from? So he's

30:09

really struggling there because there's no answer. What

30:11

he's looking for is absolute immunity for the

30:13

president. And absolute immunity means you can't even

30:15

be charged with a crime, right? Right. Qualified

30:18

immunity where maybe, and that's what police officers have. You

30:20

can be a guy to death. Yeah, no. And then

30:22

we can take a look at it and see maybe

30:24

if it actually is something, you know, that a reasonable

30:26

person would know you're not supposed to do on the

30:28

job. And as this argument progresses, Sauer does actually back

30:31

down a lot. I think he actually gave up a

30:33

lot of his argument by acknowledging, and as this eclipse

30:35

will probably get to you, that some of this was

30:37

actually private. Some of the stuff that's charged in the

30:39

indictment was definitely private. And there's an

30:41

open question about whether maybe Jack Smith could just tailor

30:43

this indictment down a bit, maybe just pare down some

30:46

of the things that look more like official acts, like

30:48

talking to the vice president or talking to their elected

30:50

leaders and just focus on all the stuff he was

30:52

doing as a candidate, which were clearly not official acts.

30:54

And that's an open question about something that Smith could

30:56

do if this goes the wrong way. But

30:59

very quickly, let's just take a look at Justice Alito's defense of

31:01

SEAL Team 6, because I thought that was kind of funny. What

31:06

a dork. Yeah, I know. Plausibly

31:08

legal to order SEAL

31:11

Team 6, and I

31:13

don't want to slander SEAL Team 6,

31:15

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

31:18

honorable officers, and they

31:21

are bound by the

31:23

uniform code of military justice, not

31:25

to obey unlawful orders. But

31:28

I think one could say that it's not plausible that

31:31

that is legal, that that action would be

31:33

legal. And I'm sure you thought,

31:35

I've thought of lots of hypotheticals, I'm sure

31:37

you've thought of lots of hypotheticals where a

31:39

president could say, I'm using an

31:41

official power, and yet

31:43

the president uses it in an absolutely

31:45

outrageous manner. That if

31:47

we're in objective determination may well be an interesting

31:51

approach to take. Alito

31:53

is saying, he says directly at one

31:55

point, that we can't prosecute presidents because

31:57

then they'll get worried, they'll get prosecuted.

32:00

prosecuted by the next guy, and they'll never leave office.

32:02

So the way we defend democracy is making sure

32:05

that we never have people prosecuted, which is a

32:07

little backwards, I'd have to suggest. And this idea

32:09

that on top of that, if we bring this

32:11

approach, as long as we never prosecute people, then

32:14

the law will be upheld. If we don't ever

32:16

prosecute people, then they will always issue lawful orders.

32:18

And if they do issue unlawful orders, then CL

32:20

team six or whoever won't follow them. I mean,

32:22

this is really Rosie stuff. This is not how

32:25

any of this would play out if you gave

32:27

the president that kind of authority, especially a person

32:29

like Trump. I think we all know that, except

32:31

Samuel Lito, apparently. There's no logic

32:34

whatsoever to this. It's

32:36

all special pleading. Let's find

32:38

a way to do this, and maybe here's how

32:40

it'll work out. There's no principled reason for any

32:42

of it that I can ascertain.

32:45

There's nothing in any of the texts.

32:47

I didn't hear much, if any, text

32:49

about anything, from anything in this, really.

32:51

Well, there's not a lot of text to work

32:54

from. The precedents, and I should talk very quickly

32:56

about the precedents that actually do exist, they're going

32:58

to come up a little bit in this argument.

33:00

There are not very many precedents, because obviously former

33:02

presidents have not been charged with very many things.

33:04

As the DC circuit said below, the question of

33:06

whether a former president enjoys absolute immunity from federal

33:09

criminal liability is one of first impression. And let's

33:11

be thankful it is, because we made it this

33:13

far without having to consider this question, I

33:15

guess. The closest thing of course

33:17

we had was Richard Nixon, who was previously considered to be

33:19

a bad and corrupt president before we had this one. In

33:22

that case, obviously, we know the basic details

33:24

that Nixon was trying to stop the tapes

33:26

from being released that would basically do them

33:28

in, tapes that showed he was being extremely

33:31

corrupt. In that case, a unified court said,

33:33

the separation of power is doctrine and cannot

33:35

sustain an absolute unqualified presidential privilege of immunity

33:37

from judicial process under all circumstances. So you'd

33:40

think that begins to answer our question right

33:42

there. But there are other questions

33:44

about former presidents and about the limits of

33:46

their liability. And a couple of them involve

33:48

Trump, because Trump is just making law left

33:50

and right. But in 1984, we did have Nixon

33:52

was sued by, I believe, a former Air Force

33:55

person, someone who's concerned about losing a job. And

33:58

they found the president was not civilly liable. for acts

34:00

within the quote-unquote outer perimeter of presidential duty. You're

34:02

gonna hear that come up a lot and of

34:04

course that was a civil case and the

34:07

Supreme Court found in 1984 I think

34:09

pretty reasonably that the president has to

34:11

have absolute immunity from civil suit from

34:14

decisions he made while he's president. I think that just

34:16

makes sense. You can't have you know everybody in the

34:18

country trying to see the president for something they think

34:20

was done wrong. That's a little different from crimes he

34:22

personally committed. But even that also he's

34:24

only immune while he's in office right? No,

34:27

I had absolute immunity from civil suit forever.

34:29

That's the Dixon v. Fitzgerald holding. Oh but

34:31

as long as it's part of his actual official

34:33

duties. That's what I was gonna say. So

34:35

Clinton v. Jones was not about official acts obviously and

34:38

those things that happened before he was president and in

34:40

Clinton v. Jones they found that he can be sued

34:42

while he's still in office because you know we can't

34:44

have things held up. Way back in 1803 in the

34:46

Burr case, I wonder why the Burr case isn't mentioned

34:48

here more because Aaron Burr was the vice president he

34:50

wasn't the president but he was there was no question

34:52

at the time that he could be charged a treason

34:54

and he was charged a treason for starting trying to

34:56

start his own country which is a little more extreme.

34:58

He did have a whole military at his command. A

35:01

little more extreme than what Trump was trying to do

35:03

here. Probably the closest analogy that we have. Still wasn't

35:05

the president. But in that case Jefferson was trying to

35:07

fight a subpoena and the court found that he had

35:09

to release documents. Things that he knew and testify. And

35:11

in Trump v. Vance in 2020 the sitting president was

35:13

found not to be immune from criminal process because of

35:15

course that was Cy Vance in New York trying to

35:17

get tax records out of him as we're trying to

35:19

find a way to prosecute him in New York. So

35:22

just about everything I just said right

35:24

up to blazen game v. Trump and also in

35:27

2020 that's a really important here. Blazen game is

35:29

a civil case and that was finding that a

35:31

candidate seeking reelection is not performing

35:33

official duties. This is important distinction. That was a

35:35

DC circuit case as well. That was a suit

35:37

brought by Capitol Police and some other people who

35:40

were injured during January 6th who had

35:42

various harms and they found that when a first-term

35:44

president opts to seek a second term his campaign

35:46

to win reelection is not an official presidential act

35:48

and I think that really should command a lot

35:50

of what goes on in this case too. Those

35:52

are about all the presidents we're looking at in

35:54

this. So anything else that they have to

35:56

work from is just vibes as always. I

35:58

think what's frustrating about this is the

36:00

idiot for Trump's side makes it seem like

36:03

what has been happening for 250 odd

36:05

years is presidents have been just like

36:08

ordering assassinations of political opponents and doing all this

36:10

stuff and they've been getting away with it and

36:12

only now does the woke left want to try

36:14

to like hold the president accountable or something. Whereas

36:17

it's again it's pretty vital it seems to

36:19

me context to be like yeah

36:21

it's because no one's ever done this before like it's

36:24

not that you had some special

36:26

arrangement where presidents were under the understanding

36:28

that they could kill a guy just

36:31

for fun and wouldn't be prosecuting that was

36:33

that was like crucial to the operation of

36:36

president like that was that was and

36:38

now it's that's all gonna be blown up

36:40

it's so misleading. Yeah let's take a look

36:42

at Justice Kagan's question and again something else

36:44

I never thought we'd see in the Supreme

36:47

Court the bookmark name is orders military to

36:49

stage a coup hypothetical this is after the

36:51

assassination hypothetical. If a president

36:53

sells nuclear secrets to a foreign

36:55

adversary is that immune

36:58

that sounds like similar to the bribery example

37:00

likely not immune now if it's structured as

37:02

an official act you'd have to be impeached

37:04

and convicted first before what does that mean

37:07

if it's structured as an official act well

37:09

I don't know in the hypothetical whether or

37:11

not that would be an official act you

37:13

probably have to have more details to apply

37:15

the blazing game analysis or even the Fitzgerald

37:17

analysis that we've been talking about. How

37:19

about if a president orders

37:22

the military to stage a coup? I

37:27

think that as the Chief Justice pointed

37:29

out earlier where there is a whole series of

37:31

you know sort of guidelines

37:34

against that so to speak like the

37:36

UCMJ prohibits the military from following

37:38

a plainly unlawful act it won't adopt a

37:40

justice elitist test that would fall outside now

37:42

if one adopts for example the Fitzgerald test

37:44

that we advance that might well be an

37:46

official act and he would have to be

37:48

as I'll say in response to all these

37:50

kinds of hypotheticals has to

37:52

be impeached and convicted before he can be

37:54

criminally prosecuted but I emphasize to the court

37:56

well he's gone let's say this president who

37:59

ordered the to stage a coup.

38:01

He's no longer president. He wasn't impeached.

38:03

He couldn't be impeached. But

38:07

he ordered the military to stage a coup. And

38:09

you're saying that's an official act? That's

38:11

immune. I think it would

38:14

depend on the circumstances when there was an official act.

38:16

If it were an official act, again, he would

38:18

have to be impeached. What does that mean,

38:20

depend on the circumstances? He was the

38:22

president. He is the commander in

38:24

chief. He talks

38:27

to his generals all the time. And he told

38:29

the generals, I don't feel like leaving office. I

38:31

want to stage a coup. Is

38:33

that immune? If it's an

38:35

official act, there needs to be impeachment

38:37

and conviction beforehand because the framers viewed

38:40

the— That kind of— It's

38:42

an official act. Very low act. Is

38:44

it an official act? If it's an official act, it's impeached.

38:46

Is it an official act? On the way you described that

38:48

hypothetical, it could well be. I just don't

38:51

know. It's twisted

38:53

in the wind. Oh my God. So this is a good

38:55

example of why this was so hard to follow. Can

38:57

you translate a little bit, oh, if it's based on

38:59

this test, it might be a thing. If it's a

39:01

Lido's proposed test, it's just like, I don't know what

39:03

any of those are. Yeah. He's really

39:05

trying to fine tune this because he does not

39:08

want to have to say that he can be

39:10

held responsible for anything. And again, the blazing game

39:12

and the Fitzgerald test are both about civil liability.

39:14

So they don't really even apply here anyway. But

39:16

the blazing game, though, has a pretty good analysis

39:18

that DC Circuit talks about when something is outside

39:21

the outer perimeter. And that's how they get to

39:23

the conclusion that when somebody is running for president

39:25

and they're running a campaign, that that is officially

39:27

private stuff. It's outside the official act. And they

39:29

have a, it's a pretty good rundown. I think

39:31

that the court probably would do well to adopt

39:34

some of it at least. But again, it does

39:36

apply in civil context, which is going to be

39:38

a very different analysis from whether he's criminally responsible.

39:40

Okay. That's a key thing that I might've just

39:42

kind of forgotten about is like, just tell me

39:44

how this already worked, Matt, if you don't mind.

39:47

Let's say, I'm going to put you through a

39:49

sonium, so to my org, the hypothetical or a

39:51

Kagan hypothetical. Now, all right. President does something. He's

39:53

still the president and he personally kills

39:55

a guy. Nothing to do with the presidency. Forget

39:57

this case. Like what was supposed to happen. happen

40:00

in that case? Well, I

40:02

think the Office of Legal Counsel, I mean, again,

40:04

this is, according to Brett Kavanaugh, you should never

40:06

be prosecuted while you're president. And according to, I

40:08

think from understanding Sauer's argument correctly, he should be

40:10

impeached for that for killing a guy and convicted

40:12

and then prosecuted. But I would argue that what

40:15

should happen is if he just kills a person

40:17

in cold blood as a private citizen, that he

40:19

should be prosecuted immediately, I don't see any reason

40:21

not to. Okay, I was about to get mad

40:23

for you not answering my question and then I

40:25

realized the problem is we just don't know because

40:28

that doesn't happen. It never happened before. Like it

40:30

just, okay, okay. So I understood,

40:32

understood. So now I really wanna get an

40:34

understanding of what this was like before this

40:36

is gonna ruin it. You know what I

40:38

mean? So I get the challenge though, if

40:40

we don't have precedent for a lot of

40:42

this, but based on the precedent we do

40:44

have, okay, now it's the

40:46

president publicly defamed someone while

40:49

president and I think we have

40:51

some analysis of that, right? And it's like, you're

40:53

liable, that one, the trick was, can

40:55

you be sued while you're in office or do they

40:58

have to wait until you're out of office? What goes

41:00

on there? Yeah, that's the Clint V. Jones situation except

41:02

of course that was stuff that happened beforehand. And in

41:04

that case, so this is the Eugene Carroll situation, right,

41:07

because Trump wasn't the president when he did that and

41:09

that was allowed to proceed while he was president because

41:11

those were definitely not presidential acts. He was actually trying

41:13

to get the government, I think he did for a

41:15

while, he was getting the government to pay to defend

41:18

him, government lawyers, which was absurd. Right, that's right. I

41:20

mean, we already know because that did happen, unfortunately. Right,

41:22

okay, so then the other, this might be a straightforward

41:24

one. Okay, he does something as president that's

41:26

totally in line with his duties, like whatever

41:29

it is. And just maybe to make the

41:31

examples more salient, it's Joe Biden, he issues

41:33

an executive order to give dreamers a chance

41:35

to stay in the country a little more

41:38

and some Republican asshole sues him

41:40

civilly saying like, well now my

41:42

business is blabber-de-blond, you've committed some

41:44

civil wrong against me. Now

41:46

that's just like no go, right? You're just like,

41:48

F off, you're not allowed to do that. That's

41:51

just, that's just absolutely mutilating. That wouldn't go anywhere.

41:53

But Gorsuch raises a number of hypotheticals that are

41:55

going along the lines of what you're talking about.

41:57

And let's go to President Lisa Sittin. So,

42:00

for example, let's say a

42:02

president leads a mostly peaceful protest

42:05

sit-in in front of Congress

42:08

because he objects to a piece

42:11

of legislation that's going through, and

42:14

it in fact delays the

42:16

proceedings in Congress. Oh, here we

42:18

go. Now, under 1512C2, that

42:22

might be corruptly impeding an

42:24

official proceeding. Is

42:28

that core and therefore immunized or whatever word

42:30

euphemism you want to use for that?

42:32

Or is that not core and

42:34

therefore practicable? Without

42:37

a clear statement that applies to the president. It's

42:40

not core. The core kinds of

42:42

activities that the court has acknowledged

42:45

are the things that I would run through the

42:47

Youngstown analysis. It's a

42:49

pretty small set, but things like the

42:52

pardon power, the power to recognize foreign

42:54

nations, the power to veto legislation,

42:57

the power to make appointments. These are things

42:59

that the Constitution specifically

43:01

allocates to the president.

43:04

Once you get out... A president then

43:06

could be prosecuted for the conduct I

43:08

described after he leaves office?

43:12

Probably not, but I want to explain

43:14

the framework of why I

43:17

don't think that that would be prosecution.

43:20

That would be valid. First,

43:22

I think you need to run

43:24

through all of the normal categories

43:27

of analysis. Is there

43:29

a serious constitutional question that's posed

43:31

by applying that statute to the

43:34

president? If so, then you

43:36

may well default to it does not

43:38

apply, at least on that fact pattern.

43:40

That was my question. Yes. And

43:43

I said it fell outside that core, we'll

43:45

call it immunity for simplicity's sake. Yes,

43:47

I understand. There's

43:50

a separate category as well. Why couldn't

43:52

he be prosecuted for leading a civil

43:54

rights protest in front of the

43:56

Capitol that delays a vote on a piece

43:59

of important legislation? Of course that's a, that's

44:01

a happening. So I think what you

44:03

need to do is run through all

44:05

of the very president specific protective layers

44:07

of analysis. So one of them is

44:09

whether the statute would be construed not

44:11

to apply to his conduct, even

44:14

if it's not a part of

44:16

that small core of things that Congress can't

44:18

regulate at all. Matt, let me

44:20

make sure I understand. And then look, I just want to make sure

44:22

I understand, and if I understand

44:24

correctly, I want to make sure everyone else

44:26

understands the level of assholery we're dealing with

44:28

here. Correct. Please,

44:30

please do not let me overstate anything, Matt, at all times.

44:33

I always want you to correct me if I'm getting something

44:35

wrong. But one of the major

44:37

problems with the assholes of

44:39

the court in that exact case that he's

44:42

referencing, which is the Jan six case where

44:44

it's like, well, could he be guilty if

44:46

he pulled a fire alarm or maybe if

44:49

he did so and so and it, and

44:51

it's slightly delayed proceedings by one minute. Couldn't

44:53

even, and that we're like, yeah, but again,

44:55

the great response by I think pre-logger was,

44:58

okay, but make the analogy

45:01

actually analogous. That means

45:03

there was weapons, there was people, there's

45:06

coordination, there was a conspiracy, there were people

45:08

who were there to do violence. There were

45:10

people killed, there were people shot, there were

45:12

people like actually do the analogy and

45:15

show, and again, this is the Jan six case, and

45:18

that was so obvious to me and it was so,

45:20

they were trying to confuse the issue with this nonsense.

45:23

And then here we are in this

45:25

separate and I guess related, but like

45:27

separate case where Gorsuch, in an

45:29

effort to be an asshole and to confuse

45:31

the issue more on that Jan six case,

45:33

it seems to me, uses his

45:35

stupid understanding of how that law would

45:38

work and but forces the guy who's

45:40

on the government side this time to

45:42

like stipulate that, okay, pretend I'm right

45:44

about my stupid analysis of the Jan

45:46

six case and then use it in

45:49

a hypothetical, it's such an asshole

45:51

thing to do. Am I getting that right or

45:53

am I overstating it at all? No, clearly this

45:55

is still on his mind. It's

45:57

almost very similar to the hypothetical he gave during

45:59

the- that last during the Fisher case that

46:02

we've discussed and he is still thinking about

46:04

things that have nothing to do with what

46:07

actually happened in January 6th and misdirecting in

46:09

a bad faith way. I think this is

46:11

really bad faith argument. Yeah, it's double bad.

46:13

The other one already was. So like, he's

46:15

using that hypothetical at first was and now

46:17

you're like doing an inception of bad faith

46:20

where you're using your bad faith thing in

46:22

a different case. The goal should

46:24

be no matter where you are in my opinion,

46:26

it seems to me, no matter where you would

46:28

hypothetically be in your opinion. In oral arguments, you

46:30

would want to make things more clear once you

46:32

would hope when you like want to make sure

46:34

we're all in the same page. We disagree

46:37

maybe on where the law goes. You wouldn't

46:39

want to do it on purpose to make

46:41

things more unclear by taking a thing that

46:43

was previously unclear and using it and making

46:46

someone answer your question based on it. In

46:48

another case, that's unclear. That's just like, I don't know

46:51

what's happening. And another thing that conservative

46:53

justices traditionally like to do is narrow the question as

46:55

much as possible. But of course, the Supreme Court of

46:57

Justice does not do that. The Supreme Court does not

46:59

do that. They love to just go wherever they want

47:01

to go to get to where they need to be.

47:03

And that's what he's doing here. Let's talk about what

47:05

is actually happening there because the government argument is essentially

47:07

that there's like a core protected set

47:10

of functions that are immune, that essentially are

47:12

you can't bring criminal statutes into them at

47:14

all. And they're using the Youngstown sheet and

47:16

tube analysis, which I'm sure has come up

47:18

on LA before. A very important case from

47:21

1952 when Truman sees the steel mills during

47:23

the Korean War. There's a

47:25

very famous concurrence from Justice Jackson. And Jack

47:27

Smith leads his brief with it because it's

47:29

so important to establish that the separation of

47:32

powers here is so clear that there's no

47:34

constitutional right to immunity. That's just not something

47:36

that's in the Constitution. You can't read it

47:38

into the Constitution. And in

47:40

the Youngstown analysis, there's three categories

47:43

essentially of how you can look at the

47:45

president's authority toward Congress. And Congress matters here

47:47

because we're talking about violations of law passed

47:49

by Congress. And so

47:51

you've got the cases in which the president is

47:53

acting with express or implied authority from Congress, cases

47:55

in which Congress had thus far been silent, the

47:57

zone of twilight and very famous for his concurrence.

48:00

cases in which the president was defying congressional

48:02

orders. And in this case, you have

48:05

a president who's trying to overturn an election. So

48:07

he does not get any kind of deference

48:09

here. They're not supposed to give you

48:11

any kind of separation of power is

48:13

magic. You're supposed to actually

48:15

look at what the guy did, and that's not

48:18

what a military officer or anybody else wants

48:20

to do. So have we covered kind of the

48:22

landscape of how it used to work? And so

48:24

where I was in my grilling of you, it

48:26

was, so the stuff that's

48:29

like actual official duties that someone

48:31

argues is a civil wrong, that's

48:33

nowhere. Now what about now the criminal?

48:35

So does that question from Gorsuch speak,

48:37

ignoring his bad faith troll? Now

48:40

the question of you've done an official act, but

48:42

it's arguably criminal. Is that what we're here

48:44

for? Is that just unclear or is that something

48:47

that was kind of clear and they're just being

48:49

obtuse about it? That's what I don't totally understand.

48:51

I just wanna make sure. That's what I was

48:53

saying about Youngstown. I think that's what the

48:55

government is saying about Youngstown too, is that leading

48:58

a sit-in in Congress is not clearly within the

49:00

president's duties. That's just not something that he,

49:02

like trying to stop what's in place for passing.

49:04

So you can make an argument that that is

49:06

outside of his duties and that's not a

49:08

core function and potentially is open to prosecution.

49:11

But it also wouldn't be prosecuted cuz

49:13

it's nothing. But I don't know. Of

49:15

course. Okay, but let's say it is

49:17

something that's in his duties and it's

49:19

criminal. Well, that's actually what the Alito

49:21

hypothetical is much more helpful for, a

49:23

little further down. Let's play that very

49:25

quickly. Perfect. Mr. Sauer and others have

49:27

identified events in the past where presidents

49:29

have engaged in conduct that

49:32

might have been charged

49:34

as a federal crime. And

49:37

you say, well, that's not really

49:39

true. This is page 42 of your

49:41

brief. So what about President

49:43

Franklin D. Roosevelt's decision to intern

49:46

Japanese Americans during World War II?

49:49

Couldn't that have been charged under

49:51

18 U.S.C. 241, conspiracy

49:54

against civil rights? Today, yes,

49:57

given the court's decision.

50:00

when Trump versus United

50:02

States, in which Trump

50:06

versus Hawaii, excuse me, where the court

50:08

said Korematsu was overruled. I mean, President

50:11

Roosevelt made that decision with the advice

50:13

of his attorney general. That's a layer

50:15

of state- Is that really true? I

50:18

thought Attorney General Betel thought that there

50:20

was really no threat of sabotage, as

50:22

did J. Edgar Hoover. So I think

50:25

that there is a lot of historical

50:27

controversy, but it underscores that that occurred

50:30

during wartime. It implicates

50:32

potential commander in chief

50:35

concerns, concerns about the exigencies

50:37

of national defense that might

50:39

provide an as applied Article

50:42

II challenge at the time.

50:44

I'm not suggesting today, but

50:46

the idea that a

50:49

decision that was made and ultimately

50:51

endorsed by this court, perhaps wrongly

50:54

in the Korematsu case, would support

50:56

criminal prosecution under 241, which requires

50:58

under United States versus linear that

51:00

the right have been made specific so that

51:02

there is notice to the president. I don't

51:04

think that would have been satisfied. So that's

51:06

an interesting one, I thought, because I do

51:09

think that it was criminal. Of course, I understand the

51:12

argument. There was wartime, but there was an active debate

51:14

going on. It wasn't like everybody was telling him to

51:16

do that. And Alito is doing some

51:18

originalism there with FDR, obviously, trying to get to what

51:20

actually was happening. The government is trying to save that

51:22

one by saying that, and this is actually an interesting

51:25

historical point, and everybody is aware of this, but what

51:27

he's saying about Trump v. Hawaii is that in passing,

51:29

in dicta, the court appears to

51:31

have overturned Korematsu, which was the case that upheld

51:33

Japanese internment. So he's saying that... Oh, that's right.

51:35

But he's also throwing it back at the court

51:38

and saying, well, that was the law for 50

51:41

years, that you guys thought it was fine, that

51:43

we did this, so you can't exactly prosecute somebody

51:45

for it. Okay, there's so much there that I'm

51:47

positive I don't understand. And I

51:49

have to return to my point of why are you

51:51

trying to make things more confusing? Just

51:54

give me a hypothetical that's clean so that I can

51:56

know how something's going to happen. Because they're

51:58

getting into the, like, well, the attorney general... Well,

52:00

I don't know if back then the insurance, it's like,

52:02

why are we talking about that? There's

52:05

no way that fundamental to this question is,

52:07

did the attorney general in 1940, whatever, believe

52:11

that this was fine or not? Like,

52:13

okay, give me an effing hypothetical. Say

52:15

future president locks a bunch of people

52:17

up due to their, just their ethnicity

52:20

and tell me whether or not you want in

52:22

this hypothetical, whether you want the attorney general to

52:24

have endorsed it or not. And just give me

52:26

that clean thing so I can understand what's happening.

52:29

Yeah. No. It's

52:31

confused at every single turn. And so I don't actually know.

52:34

Now, that was an interesting, you know, I take

52:36

your point that it's an interesting historical example, but

52:38

what was I supposed to take from that exchange? What

52:40

do you take from that exchange? I don't even know.

52:42

No, and it has nothing to do with January 6.

52:44

And then again, as the government said, it was a

52:46

wartime thing, which is always going to be much harder

52:48

to prosecute anyway. But he's just trying to make the

52:50

point about how, well, do we really want to open

52:53

the door to prosecuting the president? Because look at that.

52:55

Here's a decision that's very controversial. And

52:57

the next thing he says is I think possibly

52:59

the most ridiculous thing he says, which is hard

53:01

to narrow down, but what's required of a stable

53:03

democratic society? Just a few down. A

53:05

question about what is required

53:09

for the functioning

53:11

of the stable democratic society, which

53:13

is something that we all want.

53:17

I'm sure you would agree with me

53:19

that a stable democratic society

53:22

requires that a candidate

53:24

who loses an election,

53:27

even a close one, even a hotly

53:29

contested one, leave office

53:31

peacefully, if that candidate is the

53:34

incumbent. Of course. All

53:36

right. Now, if

53:40

an incumbent who loses

53:43

a very close, hotly contested

53:45

election knows that

53:47

a real possibility after

53:50

leaving office is not that the president is

53:52

going to be able to go off into

53:55

a peaceful retirement, but that

53:57

the president may be criminally prosecuted.

54:00

by a bitter political opponent,

54:03

will that not lead us

54:05

into a cycle

54:07

that destabilizes the functioning

54:09

of our country as a democracy?

54:11

And we can look around the

54:13

world and find countries where we

54:15

have seen this process, where the

54:18

loser gets thrown in jail. So

54:20

I think it's exactly the

54:22

opposite, Justice Alito. There are

54:24

lawful mechanisms to contest the

54:26

results in an election, and

54:29

outside the record, but I

54:31

think of public knowledge, of

54:34

petitioner and his allies

54:36

filed dozens of electoral

54:39

challenges. And my understanding is

54:41

lost all but one

54:43

that was not outcome determinative in any

54:45

respect. There were judges that

54:49

said in order to sustain substantial

54:51

claims of fraud that would overturn

54:53

an election result that's certified by

54:55

a state, you need evidence, you

54:58

need proof. And none of

55:00

those things were manifested. So there is

55:02

an appropriate way to challenge things through

55:04

the courts with evidence. If you lose,

55:06

you accept the results. That has been

55:08

the nation's experience. I think the court

55:10

is well familiar with that. Thank

55:12

you. Thank you. I think more people

55:15

should start their responses with, it's exactly the opposite

55:17

of that, Justice Alito. Yeah. That's

55:20

a great start. This is a bootstrapping, snake

55:22

eating its own tail thing. So here's the thing,

55:24

Matt, let's make sure we all understand this. We

55:27

are here today to determine if

55:30

the president, when he's an ex-president,

55:33

should be able to be

55:35

prosecuted for crime he committed

55:37

while president, correct? Correct.

55:39

Alito's whole premise here is,

55:42

well, let's say he thinks

55:44

he should have won. And let's say

55:46

he wants to steal an election.

55:50

Well, under your theory,

55:52

he's going to be afraid that

55:54

he'll get prosecuted for stealing an

55:56

election. And so therefore, he'll

55:58

try to steal an election. election

56:01

so that he doesn't become

56:03

ex-president. Wow. Yeah. Why

56:05

don't you ask it the other way? Okay, but it's

56:07

for crime. So, and as this guy pointed

56:10

out, it's actually the opposite. If you're worried

56:12

about being prosecuted for stealing an election after

56:14

you're out of office, maybe you won't try

56:16

to steal an election. It's

56:19

so stupid. And this really brings out, I

56:21

wanted to play that in conjunction with the

56:24

FDR thing because for a minute

56:26

there, I thought he was getting it. I thought

56:28

he was understanding that FDR did actually overstep and

56:30

did potentially commit a crime and under today's standards,

56:33

that's like it was a tremendous civil rights violation

56:35

and a violation of a criminal statute. But

56:37

what he was saying was we have to protect

56:39

FDR and our ability to intern Japanese people at

56:41

all costs. I think that's really what he's trying

56:43

to get at. Yeah, is this thinking like, well,

56:46

I know the libs love FDR, the New Deal

56:48

or something like so they're not going to want,

56:50

what if we go lock up his corpse, they're

56:52

going to be mad. No, I don't

56:54

care. Fine. Yeah, lock him

56:56

up. Put him in jail. Let's not do

56:58

internment camps again, please. Yeah, yeah, that's fine.

57:00

And if anyone does internment camps, they should

57:03

be locked up. That'd be a great idea.

57:05

Let's deter that. Yeah. So

57:07

that's enough of Alito. It was already enough of Alito.

57:09

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to learn more. So there's a bunch of stuff

58:30

from Kavanaugh and I'm not even gonna play the

58:32

Kavanaugh stuff. It's not even worth dignifying honestly and

58:34

we don't have time for all this but Kavanaugh

58:36

is almost just about trying to say that if

58:38

the law doesn't say that it applies to the

58:40

president it doesn't apply to the president. He's trying

58:42

to say every federal law should come with a

58:44

stamp as Sotomayor says that you know can't apply to

58:46

the president and you know saying

58:48

that this clear statement rule which has nothing to

58:50

do with this particular question should make it so

58:52

the president is unnoticed that he can't I don't

58:54

know rob banks or like transport Falcons between state

58:56

lines or whatever federal crime you want to pick

58:59

and pretty much everything that Kavanaugh says

59:01

in this entire argument is pretty dumb

59:03

honestly it's pretty stupid. So yeah was

59:05

there some real doctrine there that was

59:07

like if something could be interpreted to

59:10

not apply to the president then you

59:12

don't well was it is that a

59:14

real thing or what is that? That

59:16

doctrine is not usually interpreted as to like whether

59:18

a crime whether a criminal statute applies to someone

59:20

or not I mean I think we all understand

59:22

that we can't do crimes and that's the general

59:24

tenor of the government's argument because we understand our

59:27

basic duty is not to do crime. He's trying

59:29

to make a more subtle point about how there

59:31

are some things that could cross the line that

59:33

could be kind of gray the president really doesn't

59:35

know if he's gonna be subject to or not

59:37

but I just I don't know I still think

59:40

that the DC Circuit's very clear statement should apply

59:42

and should be upheld. Let's go quickly to Amy

59:44

Coney Barrett because she has a really good exchange where

59:46

she kind of nails this down. Okay and since you

59:48

bring up the private acts my

59:50

last question so I had

59:53

asked Mr. Sauer about on page 46 and

59:55

47 of your brief. Yes. You

59:57

say even if the court were inclined to

1:00:00

some immunity for former president's official acts.

1:00:02

It should remand for trial because the

1:00:04

indictment alleges substantial private conduct. Yes. And

1:00:07

you said that the private conduct would

1:00:09

be sufficient. Yes. The special counsel has

1:00:11

expressed some concern for speed and wanting

1:00:14

to move forward. So you know

1:00:16

the normal process what Mr. Sauer

1:00:18

asked would be for us to remand

1:00:20

if we decided that there were some official

1:00:23

acts immunity and to let that

1:00:25

be sorted out below. It is

1:00:27

another option for the special counsel to just proceed

1:00:29

based on the private conduct and drop

1:00:32

the official conduct. Well

1:00:34

two things I'm not just fired.

1:00:36

First of all there's really an

1:00:38

integrated conspiracy here that had different

1:00:40

components as alleged in the

1:00:42

indictment working with with private lawyers to

1:00:44

achieve the goals of the fraud and

1:00:46

as I said before the petitioner

1:00:50

reaching for his official powers to

1:00:52

try to make the conspiracies more

1:00:55

likely to succeed. We would

1:00:57

like to present that as an integrated picture

1:00:59

to the jury so that it sees the

1:01:01

sequence and the gravity of the conduct

1:01:03

and why each step occurred. That

1:01:06

said if the court were to

1:01:08

say that the fraudulent election scheme

1:01:10

is private reaching out to state

1:01:12

officials as a candidate is private

1:01:15

trying to exploit the violence after

1:01:17

January 6th by calling senators and

1:01:19

saying please delay the certification proceeding

1:01:22

is private campaign activity we still

1:01:24

think contrary to what my friend

1:01:26

said that we could introduce the

1:01:28

interactions with the Justice Department the

1:01:30

efforts to pressure the vice president

1:01:33

for their evidentiary value as

1:01:35

showing the defendant's knowledge

1:01:38

and intent and we

1:01:40

would take a jury instruction that would

1:01:42

say you may not impose criminal culpability

1:01:44

for the actions that he took however

1:01:47

you may consider it insofar as

1:01:49

it bears on knowledge and intent

1:01:51

that's the usual rule with protected

1:01:53

speech for example under Wisconsin versus

1:01:55

Mitchell. My friend analogizes this to

1:01:58

the speech or debate clause But

1:02:00

we don't think the speech and debate clause has

1:02:02

any applicability here. It's a very

1:02:04

explicit constitutional protection that says

1:02:07

senators and representatives shall not be questioned

1:02:09

in any other place. So it carries

1:02:12

an evidentiary component that's above and beyond

1:02:14

whatever official act immunity he is seeking.

1:02:16

And the last thing I would say

1:02:18

on this is we think that the

1:02:21

concerns about the use of evidence of

1:02:23

presidential conduct that might otherwise be official

1:02:25

and subject to executive privilege is

1:02:28

already taken care of by United

1:02:30

States versus Nixon. That balances the

1:02:32

president's interest in confidentiality against the

1:02:34

need of the judicial system for

1:02:36

all available facts to get to the

1:02:38

truth. And once that has

1:02:40

been overcome, we submit that evidence can

1:02:42

be used even if culpability can't rest

1:02:44

on it. Makes sense. That all makes

1:02:46

sense, I think. He does? Yeah, well,

1:02:48

I know. There's

1:02:51

another long back and forth with

1:02:54

Sauer before where she gets him, really

1:02:56

gets him to acknowledge that

1:02:58

most of the stuff in the indictment is actually private, which

1:03:01

is, I think, where they should lose, right there at that

1:03:03

point. And then she's turning it around

1:03:05

back in the government and saying, so if this is

1:03:07

all private, how do you handle it? Because there's also

1:03:09

some public aspect to it. He's saying, there's still communications

1:03:11

with the government. There's still things that you're doing in

1:03:13

your public capacity to further the conspiracy. And I think

1:03:15

he's setting the needle pretty well. And I think the

1:03:17

overall of the government's argument, which I'm not usually in

1:03:19

favor of, but he's saying the status quo works pretty

1:03:21

well. And for this purpose,

1:03:24

it does. Everything that we have

1:03:26

protects the president, more or less, as long

1:03:28

as he's not doing things that are actually criminal. And

1:03:30

that's what he's trying to say. Here's how we can use

1:03:32

all of this without having to worry about any of the

1:03:34

stuff we're talking about. So this argument could have been, I

1:03:37

don't know, 35 minutes. So

1:03:39

I didn't know if this was the case.

1:03:41

I know this often happens with this current,

1:03:44

awful Supreme Court is that the side that

1:03:46

you and I tend to agree with have

1:03:48

to really compromise their arguments maybe. That

1:03:50

struck me as like, well, wait, why

1:03:53

should they have to drop the stuff that

1:03:55

might be official acts from the indictment? Like,

1:03:57

is that a good thing? I don't understand.

1:04:00

saying, suppose basically we find that the

1:04:02

public act, you know, are, and

1:04:04

he's finding a way to pull it out, but no, that's not

1:04:06

great. They should just agree with what the DC Circuit said, but

1:04:08

at the end of the day, the real thing I think that's

1:04:10

gonna happen here is what Roberts was saying is that the DC

1:04:12

Circuit's decision was very broad, and I agree it was kind of

1:04:15

broad. It did get some criticism at the time for not deleting

1:04:17

things enough, and Roberts is saying,

1:04:19

let's kick it back and make them

1:04:21

come up with what they think in

1:04:23

the indictment is private versus official acts.

1:04:25

Why? I don't understand. Because they're deciding

1:04:27

that official acts are fine, or is

1:04:29

that already how it is? I don't

1:04:31

know. That's why I don't understand. They're gonna

1:04:34

find some level of immunity for official acts.

1:04:36

They're gonna find some way to, and even

1:04:38

the government is saying that there's a core sort

1:04:40

of set of official acts that are immune. Sure,

1:04:43

but when they're part of a coup, I

1:04:45

just feel like definitionally wouldn't they be not official. Well,

1:04:47

that's, again, like I said, they should have just affirmed

1:04:49

the DC Circuit, which said all of this stuff was

1:04:52

private. It was all done in the course of his

1:04:54

campaign. I'm not agreeing with the approach they're gonna take.

1:04:56

I'm just saying I think we can see some signposts

1:04:58

there. They're gonna kick it back, as you say, and

1:05:00

have them delineate what's an official act in this and

1:05:02

what's not. And are you saying the court has to

1:05:04

do that, or are you saying that they're gonna make

1:05:06

Jack Smith do that? Well, Jack Smith could certainly cut

1:05:08

it off at the pass and just try to clean

1:05:10

up the indictment to do that, but they're saying they're

1:05:12

gonna have the lower court, I think the district

1:05:15

court, go through and try to figure out which

1:05:17

and things in the indictment can be prosecuted and

1:05:19

which can't, based on whatever theory of immunity they're

1:05:21

gonna come up with. Okay, I guess that's the

1:05:23

key, because when you said the government guy even

1:05:25

acknowledged there's some official acts, well sure, we would

1:05:27

agree with that, but that sounded pretty limited, the

1:05:29

list of things that are official acts by a

1:05:31

president. Yes, the core functions such as the pardon

1:05:34

power and, you know, communicating with other countries and

1:05:36

all the things that are sort of there in

1:05:38

the Constitution. Okay, so why would any of

1:05:40

that be in the indictment, is what I

1:05:42

want to know? It wouldn't. Is there any

1:05:44

part of the indictment that involved pardoning people,

1:05:46

talking to other countries? No, seriously,

1:05:48

like I genuinely, that's why I'm confused by kind

1:05:50

of what you're saying is because even if you

1:05:52

took this on, they're like, alright, we gotta sift

1:05:54

out the official acts. Based on

1:05:56

what I heard from that guy, I don't know

1:05:58

why any of it would have been. an official act. I

1:06:00

don't either and I think that this is just delay

1:06:02

in the end of the day. I mean it's the

1:06:05

Supreme Court really wants to set some kind of rules

1:06:07

as Gorsuch said for the ages so that anytime this

1:06:09

comes up again we'll have a clear rule but I

1:06:12

think they really just need to settle this one and

1:06:14

they need to get this trial going but they don't

1:06:16

want to do that. I think that's that's really what

1:06:18

our problem is here. All right so that's one possibility

1:06:20

is we're just trying to waste time here that makes

1:06:22

sense because if they send it back and the

1:06:24

court's like all right well none of it is

1:06:26

official acts. Okay cool that does delay I don't

1:06:29

know that that's that doesn't seem to me

1:06:31

what the court wants to do. I could be wrong.

1:06:33

Is the other possibility that they want more things to

1:06:35

be considered official acts? That's gonna be kind of how

1:06:37

they they make this work like it's gonna be a

1:06:39

way broader definition than the one that we just talked

1:06:41

about. It'll be broader than the government. Yeah I think

1:06:43

so. Do you think the Supreme Court will write that

1:06:45

in this decision maybe to remand? I think they'll give

1:06:47

them some instructions about what they consider to be protected

1:06:49

and immunized but they don't seem to have any interest

1:06:51

in focusing on what's in the indictment or what the

1:06:53

facts are in this case so I think they just

1:06:55

want to wash the hands of that. Yeah that would

1:06:57

have been good they could have you know here's a

1:06:59

great way to have done this. Started to play Monday

1:07:01

morning Supreme Court justice but like maybe talk about the

1:07:03

actual indictment and be like give me an example of

1:07:06

something in here that was an official act. Right.

1:07:08

And then they could argue about it. Coney Barrett did

1:07:10

that and Jackson did too. They both got into it

1:07:12

with Sauer and he really had to back down

1:07:14

on a lot of these things and like

1:07:17

I said he gave away most of his

1:07:19

case by acknowledging that most of the indictment

1:07:21

is not official acts so I agree and

1:07:23

I hope I had made that point from

1:07:25

the beginning that this is something that is

1:07:27

not that complicated it's not two hours and

1:07:29

40 minutes worth of argument complicated. It's not

1:07:31

70 minutes worth of opening arguments

1:07:34

complicated except they are confusing and I appreciate

1:07:36

you going through this sorry if it's maybe

1:07:38

this stuff is obviously but I was so

1:07:40

confused by this proceeding to an

1:07:42

extent that I not normally like I watch a lot

1:07:45

of oral arguments I've never been more

1:07:47

confused and I was trying to pinpoint why and I

1:07:49

think it's just I don't know what the current law

1:07:51

was I don't know what they they would want it

1:07:53

to be I don't it was just crazy so nobody

1:07:55

knows I'm glad to hear you say though it seems

1:07:58

like someone that mounted that was on purpose Ah,

1:08:01

Furtive did not make any sense. I think this

1:08:03

is the point that I'd like to make more

1:08:06

and more often, which is that a lot of

1:08:08

these arguments that when you hear them and a

1:08:10

subtle wrongs don't send any less wrong just because

1:08:12

a lawyer says them in fancy language in a

1:08:15

brief rent or argument. What? Mostly what you're going

1:08:17

to get, his obfuscation and is briefings in our

1:08:19

yard, just long explanations about why the President should

1:08:21

be above the law. and for example, the fact

1:08:24

that days continue to maintain this idea that you

1:08:26

have to be impeached, convicted by the senate and

1:08:28

then be prosecuted. A He's He's seriously saying that.

1:08:30

Out loud as an adult to room full of the

1:08:33

Highest justice and Atlanta. To. Credible. Why?

1:08:35

Would in the world would that be Just know

1:08:37

where that's true. Even just no, no world is

1:08:39

a reading the actual text, the constitution. A man

1:08:42

who people it during that. but it's it's saying

1:08:44

that you can still be held liable afterward. He's

1:08:46

trying to read it in a very different way,

1:08:48

but it says he after your interesting to vetted

1:08:50

you can still be held liable and it it

1:08:53

contradicts the exact thing is trying to save a

1:08:55

double jeopardy which the double jeopardy argument put me

1:08:57

into space. Gov

1:08:59

didn't he say both of those things?

1:09:01

Yes, I proceeded That is trying to

1:09:04

say that somehow having. Bannon Piston convicted

1:09:06

which the present wasn't obviously as and pissed, but

1:09:08

even as having been impeached, that that somehow double

1:09:10

jeopardy attaches when we all know that impeachment as

1:09:12

a political and not a criminal process and has

1:09:14

nothing to do with Apple separatists and the constitution

1:09:16

is telling you right there that he can still

1:09:18

be held liable criminally. All right. So all that's

1:09:20

insane I would like you to. Bottom line as

1:09:23

if you don't mind, Here's what: I don't know

1:09:25

that I know that since and here's why I

1:09:27

don't know. I saw so many headlines about how

1:09:29

the Supreme Court as I started out with this

1:09:31

is going to help and I agree, but. I.

1:09:34

Do. Not know that I have a solid grasp

1:09:37

of what they're gonna do here. Can you give

1:09:39

us some predictions and we're gonna hold you to

1:09:41

on? But we also understand that you know it's

1:09:43

hard to predict. These. People specially built

1:09:45

like they'll just helped me to understand kind of

1:09:47

what you saw here? Yeah, I mean like first

1:09:50

of all, is this decision going to involve anything

1:09:52

about that double jeopardy thing? Where. you

1:09:54

where you can't be charged again if you were obese

1:09:56

or sort of the opposite thing which is you have

1:09:58

to have been and impeached and convicted for something to

1:10:00

be charged. Is this gonna touch that at all? No,

1:10:03

I mean you can tell because they left that question

1:10:05

out of the questions presented when Trump wanted to put

1:10:07

it in as something they were arguing about. They didn't

1:10:09

wanna hear about that. That's not something that they are

1:10:11

taking seriously. Nobody should. That's right. I

1:10:14

remember that now, but in the oral argument, when you

1:10:16

hear the guy using it a million times, I'm like,

1:10:18

oh, so is that on the table? I couldn't remember.

1:10:20

But okay, so he just, he briefed it. Yeah,

1:10:23

even though it's not being answered. Okay, that got,

1:10:25

again, now I understand why. I'm so freaking confused.

1:10:27

So you don't think they're gonna mess with that?

1:10:30

What do you think this court is likely to do?

1:10:32

You've already teased that, but just make it very clear

1:10:34

for us. I don't think they're gonna

1:10:36

find full immunity, just to begin with that, because even Sauer,

1:10:39

during his argument, backed down from that and said, okay, fine,

1:10:41

he started saying there should be absolute full immunity, and by

1:10:43

the end, he was acknowledging that there could be things that

1:10:45

you could still be liable for. Obviously, for me, I would

1:10:47

just uphold the DC circuit and find there's no immunity for

1:10:50

anything in the diamond, and we move on, but they're not

1:10:52

me, and they could have done that months ago. I think

1:10:54

it's much more likely based on the way that Roberts was

1:10:56

talking about it, and it seems most likely that Roberts wanted

1:10:58

to be writing the decision. This is gonna come out very

1:11:01

late in the term. This is something I think he's gonna feel like

1:11:03

the Chief Justice has to write. It's one of those things. I

1:11:05

think that just based on those questions, and

1:11:07

even the way that sort of last exchange

1:11:10

was going there, I think they're

1:11:12

gonna find a way to send it back and clarify

1:11:14

what in this indictment is private or not, and clarify

1:11:16

the standard. I think they're gonna try to set some

1:11:18

kind of basic standard about things the President could be

1:11:20

prosecuted for or not, and they're gonna

1:11:22

do it in the name of looking out for future

1:11:24

Presidents and making sure that we don't have, what

1:11:27

Alita was talking about, the banana republic kind

1:11:29

of prosecutions, every other term of

1:11:31

the next guy prosecuting the last guy. But

1:11:33

again, this is the kind of consequentialism that we

1:11:35

have been talking about for a while. This

1:11:37

is not necessarily relevant to anything,

1:11:39

and as the government I think very well points out,

1:11:41

the law does protect the President for the most part

1:11:44

as long as the President is doing what the President's

1:11:46

supposed to be doing. I

1:11:48

think that that is more or less what's gonna happen. I

1:11:50

don't know, it's hard to say, but whatever's gonna happen,

1:11:53

it's gonna take a long time, and we're not gonna

1:11:55

see a trial on this if

1:11:57

Trump is elected. So that's already mission accomplished. They can already

1:11:59

hang that. banner, they've delayed the hell out of

1:12:01

this. Yeah, by putting this on to the last day

1:12:04

of argument, and then no doubt, I'm sure that decision

1:12:06

won't come out until right at the end of June.

1:12:08

So at that point, there's no way. What's the process

1:12:10

after that? Like how far are we from getting back

1:12:12

to a trial? Just checking it said that there was

1:12:15

another month or two of pre-trial things that were gonna

1:12:17

have to happen. But isn't there another phase? Let's say

1:12:19

they do what you predict, which is they send it

1:12:21

back and they say, hey, you need to do another

1:12:23

thing. You've remanded it, right? So wouldn't there be some

1:12:26

process there that would take time? Yeah, there'd be a

1:12:28

series of hearings at least and motions and there'd be

1:12:30

a lot of back and forth. And I'm sure more

1:12:32

appeals coming out of that after and probably back up

1:12:34

to the court again since this time next year. So

1:12:36

yeah, they had a perfectly good decision from the DC

1:12:38

circuit that they could have upheld just as they had

1:12:41

a perfectly good decision from the Colorado Supreme Court that

1:12:43

they could have upheld. And they didn't do that either.

1:12:45

Well, I appreciate, I squeezed some predictions out of you.

1:12:47

And wow, this thing

1:12:50

sucked. Yeah, it really

1:12:52

did. And it's just another thing where if you actually dig

1:12:54

into it and you actually just pick up some of these

1:12:56

rocks, there's not much under it. All right,

1:12:58

well, I suppose we're out of time for that. Anything

1:13:00

else you wanna make sure that the listeners take home

1:13:02

from this? No, I'm sure we'll be talking about it

1:13:05

again when we have a bad decision. I'm

1:13:08

excited to read the decision. In a way

1:13:10

it will make them, like I'm curious for

1:13:12

them to actually lay out, okay, what's an

1:13:14

official act that now you can just do?

1:13:16

Because I actually think that sounds kind of

1:13:18

difficult to me, right? I mean, that sounds to do

1:13:20

in their way, like where they want some things to

1:13:22

be totally fine and others not. It seems like whatever

1:13:24

they write down may be easy to poke holes in,

1:13:26

but who knows? From what I saw, the blessing game

1:13:28

case, which is the civil thing involving January 6th, I

1:13:30

think that actually laid out a pretty good standard and

1:13:32

I think they could borrow from that, but we'll see.

1:13:35

Okay, Matt, thanks so much. We suffered through these

1:13:37

oral arguments so that you all don't have to,

1:13:40

although I know many of you already did. One

1:13:42

last question for you on this. If you could

1:13:44

rate the coverage, which has been very sky is

1:13:46

falling on this, how would you rate, do you

1:13:49

agree with that or do you think That

1:13:51

was overblown at all? I Mean, from what

1:13:53

I saw, I think it's pretty reasonable to

1:13:55

say, why isn't the Supreme Court just stopping

1:13:57

and saying this can't happen, this can't just

1:13:59

shouldn't happen? again with and a back and

1:14:01

make sure it doesn't I agree with that.

1:14:03

I think as always the media's looking for

1:14:05

headlines, but I think that it's okay to

1:14:07

be a little warmest about this when they're

1:14:09

being this blinds age or about one of

1:14:11

the most important decisions. I think the can

1:14:13

have to look at one time or right.

1:14:15

Well there you go. This court sucks. Thanks

1:14:18

so much for the thing Everybody sports show,

1:14:20

pitcher and or some such law and whirling

1:14:22

for it by a reminder the show the

1:14:24

next episode will be a Thursday early Am

1:14:26

show rather than a Wednesday early game show.

1:14:28

Because of the I'm transcripts, the transcript schedule.

1:14:30

Is now something we are. Very.

1:14:32

Much dependent on in a good way. And.

1:14:34

So that will be trump trial

1:14:36

coverage. Come out your Thursday in

1:14:38

the Am. Can't wait. We'll see

1:14:40

them are implicated. In

1:14:52

turn out to be. Used. But

1:14:59

I do love Alito his that he stood

1:15:01

up, saluted. Is actually play

1:15:03

tops for a moment. Brow I talk

1:15:05

Matthew. To

1:15:07

the point of the family. Say

1:15:12

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1:15:14

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and Target are pushing for law

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and Congress to take away your

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harmful credit card routing mandates that

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