0:00

Well. The best laid plans always get interrupted.

0:03

We. Have been waiting and waiting for

0:05

the Court of Appeals in the Dc

0:07

Circuit to weigh in on whether former

0:10

President Donald Trump has absolute immunity from

0:12

criminal prosecution. And finally, it has. So

0:14

today, there's more to say about this

0:16

unanimous opinion from three judges of the

0:19

Court of Appeals. Lead

0:30

situate ourselves in place, time and

0:32

purpose or in federal court in

0:34

Washington Dc as part of what

0:36

we have been calling kind of

0:38

the January Six. Criminal Prosecution of

0:40

the former President for charges in

0:43

this. Case: Conspiracy to defraud

0:45

the U by overturning election

0:47

results Conspiracy to obstruct an

0:49

official proceeding Obstruction of an

0:51

attempt to obstruct the certification

0:54

of the. Electoral. Vote And

0:56

Conspiracy Against The Rights of people to

0:58

have their votes count. In.

1:00

Response to this indictment, the former

1:02

President filed multiple motions to dismiss.

1:05

The. Heart of his argument is that he

1:07

is absolutely immune from prosecution for things

1:10

he might have done while he. Was

1:12

president. The District court

1:14

judge Tanya check in denied his motion

1:16

to dismiss. We discuss her opinion in

1:18

another episode and will link it here

1:20

if you haven't listened to it, Just

1:22

Atkins work was excellent and I really

1:24

think it's worth spending time with. So.

1:28

Trump appealed her order and when he

1:30

did, the Special counsel did something pretty

1:32

unusual. He went to the Supreme court

1:34

and ask the supreme court to bypass

1:37

the court of Appeals and go ahead

1:39

and take this case on an emergency

1:41

basis. The Keys was scheduled to go

1:43

to trial on March Fourth and Jack's

1:46

miss office really wanted to keep that

1:48

trial date, but the Supreme court declined.

1:50

Now, I happened to think that was

1:52

the right thing to do. I think

1:55

that the country in the long term

1:57

is best. Served by keeping as

1:59

much. normalcy as possible in

2:01

an abnormal situation, but that might

2:03

be indicative of my personality more

2:06

than anything else. So

2:08

the Court of Appeals takes the case and

2:10

the DC Circuit immediately scheduled it for oral

2:12

argument. That was a very memorable oral argument.

2:15

We talked about it on the show and

2:17

as Sarah discussed it in the Good Morning

2:19

News Brief, it seemed like the

2:21

Court of Appeals was going to move with

2:23

a lot of speed and they did, but

2:25

not as fast as anyone really expected

2:27

or hoped. And so

2:29

as days turned to weeks after that

2:31

oral argument and we still did not

2:34

have a decision, Judge Chutkin

2:36

realized there was no way to keep

2:38

the March 4 trial date. So she

2:40

has officially removed that date from her public

2:42

calendar because she has other cases that need

2:44

to go to trial. Yesterday

2:47

we received the opinion from the panel hearing

2:49

this case. And I'm going to go

2:51

through this opinion in some detail, even

2:54

though I admit there isn't really anything

2:56

new here. I'm going to go through

2:58

it in detail for two reasons. One

3:01

it's just important. I don't think we

3:03

can think too long or hard about

3:05

the bedrock principles of separation of power.

3:08

And the second reason is that if I

3:10

had to make a prediction about what might

3:12

happen next in this case, I

3:15

would predict that the Supreme Court leaves

3:17

this opinion in place that it just

3:19

doesn't take the case. Remember

3:22

that in the vast majority of cases in

3:25

our system, parties are entitled

3:27

to one appeal. Trump

3:30

has received that one appeal that he's entitled to

3:32

from the Court of Appeals. Now

3:34

he will almost undoubtedly ask the Supreme

3:36

Court to take this case, but it does not

3:38

have to. And if

3:41

it doesn't, the ruling of the Court of

3:43

Appeals will stand. And I think that is

3:45

the best case scenario for the Supreme Court.

3:48

I think that's why the Court of Appeals

3:50

took its time writing an opinion that feels

3:52

rock solid. If the Supreme

3:54

Court takes this case just to

3:56

affirm the D.C. circuit. And

3:59

I really. struggle to see how it

4:01

could find a legal basis to do anything

4:04

other than affirm this opinion that we're going

4:06

to discuss. It will

4:08

look like the Supreme Court is doing Trump's

4:10

bidding by just allowing the case to

4:12

be delayed. If the Supreme Court takes this, it will

4:14

have to be briefed and argued, and

4:16

the court will have to write an opinion. And the

4:18

months will tick by and we'll get closer and

4:20

closer to the election without a

4:23

trial. And that will look very, very bad

4:25

for the court. With

4:27

several other pivotal moments in Trump's

4:29

journey through the court system, the

4:31

Supreme Court has declined to get involved and

4:33

just let the lower court ruling stand. And

4:35

I really think that's what it is likely

4:38

to do here. Just my

4:40

speculation and opinion, but I think this

4:42

is likely to be the final word

4:44

on this matter. So I want

4:46

to go through it in detail. So let's get to the panel.

4:49

We have three judges hearing this.

4:51

Judge Karen Henderson, who

4:53

is 79 years old, she was

4:55

first appointed to the district court by Ronald

4:57

Reagan in 1986, and then appointed

4:59

to the court of appeals by

5:02

George H.W. Bush in 1990. Judge

5:05

Henderson is from South Carolina, as

5:07

is her colleague who heard this

5:09

case, Judge J. Michelle Childs. Judge

5:13

Childs was first appointed to the district court

5:15

by President Obama in 2010, and then to

5:18

the court of appeals by President Biden in 2022. You

5:22

might remember her name. She was on the

5:24

shortlist for the seat, now filled on the

5:26

Supreme Court by Justice Jackson. And

5:28

she was the favorite choice. It was reported

5:30

of Jim Clyburn, a close confidant

5:33

and advisor to President Biden and a member

5:35

of the House of Representatives. Judge

5:38

Childs is 57 years old, and she

5:40

was the first black woman partner at

5:42

a major South Carolina law firm. And

5:46

then our third judge is also a woman,

5:48

Judge Florence Y. Pan. She

5:50

was appointed by President Obama in

5:52

2009, and then to the circuit

5:55

court by President Biden to replace

5:57

Judge Jackson, who is now Justice

5:59

Jackson. Pan is also 57 years

6:01

old. Her parents immigrated to the

6:03

United States from Taiwan. So three

6:06

women of different backgrounds, 57, 57,

6:08

and 79 years old, just saw a lot of interesting demographic

6:13

information about these judges and

6:15

one judge appointed by conservative

6:17

Republicans and two judges who

6:19

were appointed more recently by

6:21

Democrats. Okay. This

6:24

opinion is written per curiam.

6:26

So it's a unanimous vote. These three

6:28

judges all agree and they have chosen

6:30

to speak with one voice instead of

6:32

having one of them author the opinion

6:34

and the other two join in it.

6:36

They have said, this reflects the judgment

6:38

of the entirety of the court and

6:40

we're not going to tell you anything

6:42

else. And I think that's another

6:45

reason that this probably took so long. When the

6:47

court wants to speak with one voice, there

6:49

is careful negotiation that takes place about

6:51

what comes through on the page. Okay.

6:54

I want to just start with

6:56

the headline sentence. For the

6:59

purpose of this criminal case, former

7:01

president Trump has become citizen Trump

7:03

with all of the defenses of

7:05

any other criminal defendant, but

7:08

any executive immunity that may have protected

7:10

him while he served as president

7:12

no longer protects him against this

7:14

prosecution. We haven't had

7:16

a trial yet and president

7:18

Trump has asked for the indictment to

7:20

be dismissed. And so the

7:22

court is in a posture where it has

7:24

to accept all the allegations of the indictment

7:27

as true. So Trump has

7:29

to show that he wins even

7:31

if everything in the indictment is absolutely

7:33

correct. The court

7:36

begins with a pretty lengthy discussion of

7:38

its jurisdiction, its power to decide this

7:40

right now, because normally a court would

7:42

not hear an appeal from a criminal

7:44

case before the case has

7:46

started. We're going to skip

7:49

that jurisdiction portion today because the court decides

7:51

that it has the power to reach the

7:53

merits. And I don't think that's controversial. I

7:55

don't think it would be good for anyone

7:57

for this case to go to trial. And

7:59

then after the fact Trump raised the immunity

8:01

issue and it be appealed. So we're

8:05

going to focus our attention on the merits

8:07

of the argument, not the jurisdiction aspect today.

8:10

Trump claims absolute immunity from

8:12

criminal prosecution for all official

8:14

acts undertaken as president. And

8:17

he says that category of official

8:20

acts undertaken as president includes every

8:23

single bit of the conduct alleged in

8:25

the indictment. Now,

8:27

the DC circuit tells us that this

8:29

is a question of first impression, which

8:31

is something that could cut against what

8:33

I said about the Supreme Court not

8:35

taking this case. The Supreme

8:37

Court has previously held that even a

8:40

sitting president is not immune from responding

8:42

to criminal subpoenas issued by state

8:44

and federal prosecutors. And

8:47

it has said that former presidents

8:49

are absolutely immune from civil liability

8:52

for official acts, which

8:54

includes any conduct falling in the

8:56

outer perimeter of official responsibility. So

8:59

both current and former presidents are

9:02

shielded from civil liability for things

9:04

they did as president, but

9:06

both current and former presidents are

9:08

civilly liable for private conduct, things

9:10

that fall outside that outer perimeter

9:13

of their official responsibility. In

9:15

considering all of those civil cases,

9:18

the Supreme Court has carefully noted

9:20

that its holdings on civil liability

9:22

do not carry over to criminal

9:24

prosecutions because criminal

9:26

prosecution is different. So

9:29

former President Trump is asking the court

9:31

for the very first time to

9:33

hold that a former president is

9:36

categorically immune from federal criminal

9:38

prosecution for any act

9:40

conceivably within the outer perimeter of

9:42

executive responsibility. And he says that

9:45

three constitutional

9:47

principles support his argument. First,

9:51

that the courts, created by

9:53

Article 3 of the Constitution, lack

9:56

the power to review the president's official

9:58

acts under the separation of laws. of

10:00

powers doctrine. Second,

10:02

that immunity is required to prevent

10:04

the courts from intruding on the

10:07

executive branch. And third,

10:09

that the impeachment judgment clause doesn't

10:11

permit the criminal prosecution of a

10:13

former president if Congress

10:15

did not impeach and convict

10:17

him. So let's start with

10:19

separation of powers. The

10:21

president is vested with executive power to

10:24

take care that the laws be

10:27

faithfully executed. And that power sits

10:29

alongside Congress's powers to make the

10:31

laws and the court's power

10:33

to say what the law is. Courts

10:36

have already decided many times

10:39

that the separation of powers doctrine

10:41

is not a magic bubble that

10:43

protects the president from any exercise of

10:46

jurisdiction over the president by the courts.

10:49

The court writes properly understood the

10:51

separation of powers doctrine may

10:54

immunize lawful discretionary

10:56

acts, but does not bar

10:58

the federal criminal prosecution of a former

11:01

president for every official act. A

11:04

lot of constitutional law makes

11:06

a distinction between discretionary and

11:08

ministerial acts. When an

11:10

official is doing discretionary actions, they're using

11:12

judgment and they are accountable

11:15

by virtue of the political process and

11:17

to their own conscience as a moral

11:20

matter. Ministerial acts are those

11:22

that are not discretionary where an official just

11:24

has a duty that the legislature has imposed

11:26

on the official and the official

11:28

has to perform the duty whether the official likes

11:30

it or not. And for

11:33

those ministerial acts, absolutely

11:35

courts can compel them to perform

11:37

the duty and they are subject

11:39

to liability if they don't. So

11:42

when a president is bound by federal

11:44

criminal law, the court can get involved.

11:46

That's ministerial. We have lots of cases

11:49

on this point where the court has

11:51

said to a president or a member

11:53

of the executive branch, you

11:55

are not allowed to violate a statute.

11:58

The court has said that But if it couldn't

12:00

tell the president no, it would

12:03

be clothing the president with a power

12:05

entirely to control the legislation of Congress

12:08

and paralyze the administration of justice.

12:11

The court says the Congress is the legislative

12:14

department of the government. President

12:16

is the executive department. Neither

12:18

can be restrained in its action by

12:20

the judicial department, though the

12:23

acts of both when performed are

12:25

in proper cases subject

12:27

to its cognizance. And

12:29

this really gets us to a case that every law

12:31

student has to study, Youngstown Sheet

12:33

and Tube Company versus Sawyer. In

12:36

that case, the Supreme Court

12:38

said that President Harry Truman had

12:40

exceeded his constitutional authority and

12:42

the court invalidated an

12:44

executive order under

12:47

which President Truman seized control of

12:49

steel mills. In

12:51

that case, the court said when

12:53

the president takes measures incompatible with

12:56

the expressed or implied will of Congress,

12:59

his power is at its lowest ebb. The

13:02

court has over and over

13:05

said no person in this country is of

13:08

such high office that the person is above

13:10

the law. The Supreme Court

13:12

has repeatedly affirmed that presidents are not

13:14

immune from criminal subpoenas issued by state

13:16

and federal prosecutors. The court has

13:18

said we have 200 years

13:21

of precedent establishing that presidents and

13:23

their official communications are subject to

13:25

judicial process, even

13:27

when the president is under investigation. The

13:31

separation of powers has to

13:33

mean that the judiciary can oversee

13:35

prosecution of a former president when

13:37

the former president has defied the laws of

13:40

Congress. We have

13:42

pages and pages of analysis from the court

13:44

after this telling us that this is true

13:46

for legislators and judges, too, that

13:49

everybody who holds office has

13:51

some latitude to make choices while they're

13:53

in office and not be taken

13:56

to court over it. But

13:58

not for crimes. Bottom

14:00

line is this, former President

14:02

Trump lacked any lawful

14:04

discretionary authority to defy federal

14:06

criminal law, and he is

14:08

answerable in court for his conduct. The

14:12

court next gives us a section with

14:14

the heading functional policy considerations. Most

14:17

constitutional law is

14:19

about balancing interests. And so

14:21

this functional policy considerations section

14:23

says, how do we

14:25

balance the interests served by allowing this

14:27

prosecution to continue against the

14:30

danger of allowing this prosecution to

14:32

continue? Trump says the

14:34

danger is that now the floodgates

14:37

are gonna be opened. All former

14:39

presidents will be prosecuted for some

14:41

crime because he has been indicted.

14:44

Every future president will be and every

14:46

future president will constantly worry about that.

14:49

And that will keep them from being able to do the

14:51

job well. And in response,

14:53

the court cites a 1982 Supreme Court

14:56

case with this gem of a sentence.

14:59

The chance that now and then there

15:01

may be found some timid soul who

15:03

will take counsel of his fears and

15:05

give way to their repressive power is

15:09

too remote and shadowy to shape the course

15:11

of justice. I love that. The

15:14

law is often concerned with chilling effects. We don't

15:16

wanna chill free speech, for example, but

15:18

we wanna chill some things. We

15:20

want to chill criminal conduct. There

15:23

is a structural benefit to deterring

15:25

abusive power when presidents

15:27

know that they could be criminally charged

15:29

for breaking the law. And

15:32

the court says recent history tells us that

15:34

presidents, including former president

15:36

Trump, have not seemed to believe

15:38

they are wholly immune from criminal

15:40

prosecution. Gerald Ford pardoned

15:42

Richard Nixon and both of them appeared

15:44

to believe that was necessary to avoid

15:47

Nixon being indicted. Before

15:49

leaving office, Bill Clinton agreed

15:51

to have his law license suspended for

15:53

five years and he paid a $25,000

15:55

fine to avoid criminal charges. And

16:00

during his impeachment proceedings, former

16:03

President Trump's lawyers argued that the

16:05

appropriate vehicle for investigating, prosecuting,

16:07

and punishing incitement of insurrection

16:09

was the court's. Trump's lawyer

16:11

said, we have a judicial

16:13

process and an investigative process

16:15

to which no former office

16:17

holder is immune. The

16:21

court quotes District Judge Chutkin's observation

16:23

that every president will face difficult

16:25

decisions, whether to intentionally commit a

16:27

federal crime should not be one

16:29

of them. To

16:32

Trump's slippery slope argument that because he

16:34

is being prosecuted, everyone will be. The

16:37

court writes something that I think could be summed

16:39

up as not everyone is as morally bankrupt

16:41

as you are. It

16:43

doesn't say that, but the court says prosecutors

16:46

have ethical obligations. They can't just go

16:48

around making up crimes. Korean

16:51

juries operate within strict parameters. There

16:53

are lots of safeguards in the

16:55

system to prevent a

16:57

tidal wave of politically motivated

16:59

prosecutions. The court says some

17:02

evidence of that is present in the fact that this

17:05

is the very first time in our

17:07

entire history that a former president has

17:09

been federally indicted. It's hard

17:11

to argue that this is just a thing we do and

17:13

that we'll do it all the time forever. And

17:17

on the other side of the

17:19

scale is the public's interest in

17:21

enforcing criminal law. In

17:23

the Constitution's interest, the court calls

17:25

this a profound Article II interest

17:27

in the enforcement of federal criminal

17:29

law arising from Section 3, the

17:32

Take Care Clause. The president is

17:34

required to take care that the laws

17:37

be faithfully executed. That

17:39

means that the executive is responsible

17:41

for investigating and prosecuting criminal violations.

17:44

This clause signals

17:47

that our government is a government of laws,

17:49

not of men. And

17:51

we submit ourselves to rulers only if

17:53

under rules. I love this part of

17:55

the opinion. The court says it would

17:57

be a striking paradox if the president...

18:00

who alone is vested with the constitutional

18:02

duty to take care that the laws

18:04

be faithfully executed were the

18:06

sole officer capable of defying

18:08

those laws with impunity. And

18:11

while we're talking about constitutional design, we have

18:13

a clear one for determining the results of

18:15

an election. And we have the Electoral Count

18:18

Act, and we have Article II's

18:20

mandate that the president hold office during the

18:22

term of only four years. We

18:24

have the 20th Amendment reinforcing that

18:26

a presidential term ends at

18:29

noon on January 20th when a

18:31

successor's term begins. Once

18:33

that power is transitioned, the

18:35

former president returns to the mass of

18:37

the people. The Constitution tells us that

18:40

executive power vest in A,

18:42

president, not B, president. I

18:45

want to read this paragraph to you in full from

18:47

page 38 of the opinion. The

18:49

president, of course, also has a duty under

18:51

the Take Care Clause to

18:53

faithfully enforce the laws. This

18:56

duty encompasses following the legal

18:58

procedures for determining election results

19:01

and ensuring that executive power vest

19:03

in the new president at the

19:06

constitutionally acquainted time. To the extent

19:08

former President Trump maintains that the

19:10

post 2020 election litigation that his

19:12

campaign and supporters unsuccessfully

19:14

pursued implemented his take care

19:16

duty, he is in

19:18

error. Former President Trump's

19:21

alleged conduct conflicts with his

19:23

constitutional mandate to enforce the laws governing

19:25

the process of electing the new president. So

19:28

the public has an interest in checking presidential

19:30

power through presidential elections. It has an interest

19:32

in the peaceful transition of power from one

19:35

president to the next. The

19:37

court says, if the government proves

19:40

this case against Trump, his actions

19:42

were an unprecedented assault on the

19:44

structure of our government. He allegedly

19:46

injected himself into a process in

19:49

which the president has no role, accounting

19:51

and certifying of the electoral college votes,

19:54

thereby undermining the constitutionally established

19:56

procedures and the will of

19:58

the Congress. To immunize

20:00

former President Trump's actions would

20:03

further aggrandize the presidential office,

20:05

already so potent and

20:07

relatively immune from judicial review, at the

20:10

expense of Congress. At

20:12

bottom, former President Trump's stance would

20:15

collapse our system of separated powers

20:17

by placing the president beyond the

20:19

reach of all three branches. Court

20:22

says that in deciding this, it acts

20:24

not in derogation of the separation of

20:27

powers, but to maintain their

20:29

proper balance. So that's

20:31

the big issue. And then the court

20:33

dispenses relatively quickly with the impeachment judgment

20:35

argument. Remember that Trump says,

20:38

well, since the Senate did not

20:40

convict me, I can't be criminally

20:42

prosecuted. The

20:44

impeachment judgment clause has two parts. It

20:47

tells us that all the Senate can do

20:49

in terms of sentencing is remove a president

20:51

from office and disqualify him in the future.

20:54

And then the second part is

20:56

that these limited consequences of impeachment

20:58

do not immunize convicted officers

21:00

from criminal prosecution. And Trump reads

21:03

these two parts to presuppose that a

21:05

president is not criminally

21:07

liable unless the Senate has convicted.

21:10

And the court says that

21:12

is a tortured interpretation that runs counter to

21:14

the text and the structure and the purpose

21:16

of this clause. The court

21:18

says a lot more about this, but I

21:20

think that's probably all we need to say

21:22

today, especially because Judge Chutkin did such an

21:25

excellent job explaining this part of her

21:27

decision. And then Trump

21:29

argues that double jeopardy principles bar his

21:31

prosecution because he was impeached for the

21:33

same or closely related conduct. Now, this

21:35

makes absolutely no sense in light of

21:37

the last argument, right? Because in the

21:39

last argument, Trump says, well,

21:42

I could only be criminally prosecuted if the

21:44

Senate convicted me. And

21:46

here he says, well, since I've already been tried based on

21:48

this conduct, double jeopardy protects me. It's

21:51

all just another way of saying there's

21:53

no way to have any criminal liability for

21:56

me, Donald Trump, because I'm so special.

22:00

Very plainly, double jeopardy impedes

22:02

multiple criminal prosecutions for the

22:04

same offense. But impeachment

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is not a criminal proceeding. And

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the indictment does not charge the same offense

22:11

as the House's article of impeachment. So

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all in all, the court unanimously

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affirms Judge Chutkin's decision. And

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I truly hope that this will be basically the

22:20

end of it. But we will see what the

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Supreme Court does and continue to follow it here.

22:25

And if you have any questions, as always, please

22:27

let me know. Thank you.