0:01

I think I've mastered the 15 minute drop

0:03

by. Oh, that's Mike Allen-like. No, she was like

0:05

a pro. She

0:07

was like, knew who she wanted to see.

0:09

Oh, impressive. And did it. We

0:11

thanked our hosts. Yeah. So you

0:14

did the host, you did the host greet.

0:16

Two or three colleagues who I wanted to

0:18

see. And then poof. I did. Before

0:20

the remarks. I had to give up on one thing

0:22

that I actually was interested in doing. I saw John

0:24

Boehner there, who has not been seen in quite a

0:26

long time. And there he was standing with a glass

0:28

of Merlot. He was very, very

0:31

tan. Oh my.

0:33

He has approached a level. I

0:35

think he was perhaps eclipse tan.

0:38

Go on. Anyway,

0:41

yeah, the Washington drop by.

0:44

That's an interesting set of techniques, as

0:46

a matter of fact. So you using,

0:48

I like that approach of the early,

0:50

purposeful, get in, contact,

0:52

exit. We're talking about this,

0:54

of course, because it is Washington's big party

0:56

weekend this week. It is not just the

0:59

White House Correspondents Dinner, but literally

1:01

the proliferation. It's like the

1:03

party industrial complex. Absolutely.

1:08

Welcome to the political scene, a weekly

1:10

discussion about the big questions in American

1:13

politics. I'm Evan Osnos and I'm joined

1:15

as ever by my colleagues, Susan Glasser

1:17

and Jane Mayer. Good morning to you

1:20

both. Great to be with you. Hi,

1:22

Evan. The Trump legal saga continued this

1:24

week. On

1:30

Thursday, the Supreme Court heard oral

1:33

arguments in the matter

1:35

that is aptly titled, Trump versus

1:38

United States. Mr. Sauer. Mr.

1:41

Chief Justice, and may it please the court, without

1:45

presidential immunity from criminal prosecution,

1:48

there can be no presidency as we know

1:50

it. The hearing centered on whether the former

1:52

president can be prosecuted for his efforts to

1:54

overturn the 2020 election. More

1:57

to the point, the court's decision in

1:59

that case will almost certainly determine

2:01

whether this trial, this important

2:04

trial, can start before

2:06

the presidential election or whether, if

2:08

Trump wins, he would have the

2:10

ability to scotch it all together.

2:13

Trump, as you know by this

2:15

point, has claimed absolute immunity from

2:17

prosecution for any crimes committed in

2:19

office. That is the question. Could

2:21

he be subject to personal vulnerability

2:23

sent to prison but making a

2:25

bad decision after he leaves office?

2:28

Other people who have consequential jobs

2:31

and who are required to follow the

2:33

law make those determinations

2:35

against the backdrop of that same

2:37

kind of risk. So what

2:39

is it about the president? And that's

2:41

just the latest in a series of efforts

2:43

by Trump and his lawyers to push the

2:46

boundaries of presidential power and privilege

2:48

and really to test the boundaries of

2:50

American democracy itself. So we

2:52

wanted to know how did we get

2:54

to the point of a president claiming

2:57

absolute immunity and can the

2:59

courts save us from what seems to

3:01

be his instinct to be a king-like

3:04

figure, a King Trump? We'll

3:06

do our best to answer these questions and

3:09

we'll bring on a special guest, Neil Kottjal,

3:11

to help us break down Trump's case before

3:13

the Supreme Court. Susan, there

3:15

are a lot of cases

3:17

right now against Trump winding their way

3:19

through the justice system. What do we

3:22

know about this case in particular, the

3:24

immunity issue, and how it ended up before the

3:26

court? You know, Evan, this

3:28

is in many ways the big one,

3:30

not only because Donald Trump and his

3:33

lawyer yesterday and nearly two hours and

3:35

40 minutes before the Supreme Court are

3:38

actually essentially arguing that the president

3:40

is a king, unfettered

3:43

by any real constraints, meaningful

3:45

constraints on his actions in

3:47

office, but because this goes

3:49

to right to the heart

3:52

of Donald Trump's attacks on our

3:54

system, because this immunity case is

3:56

his bid to block the federal

3:59

case. against him that stems from his

4:01

efforts to overturn the 2020 election. In

4:04

many ways, again, this is a big story.

4:06

And I think what we learned yesterday is

4:08

not so much that we have nine justices

4:11

who are prepared to say that an American

4:13

president can do anything he wants while in

4:15

office, but possibly

4:19

much more concerning in the short term is

4:21

that while they may not agree with Donald

4:23

Trump that he could be a king, they

4:25

do seem to be inclined to add more

4:28

time to the clock. And

4:30

any more time on this

4:32

case, if they send it back to the

4:34

lower court, as they seem inclined to do,

4:36

that in effect is handing Donald Trump a

4:39

victory. It very likely means, it's not for

4:41

sure yet, but it very likely means that

4:43

we're not going to see a trial in

4:46

this most important federal case against

4:48

Donald Trump before the 2024 election.

4:51

And to me, it was just

4:53

jarring to hear the

4:56

gap in this argument between the

5:00

urgent reality, the

5:02

five alarm fire that Donald Trump is

5:04

presenting to the legal system and a

5:08

large number, if not a majority of justices, who

5:10

are basically saying, yeah, we don't want to talk

5:12

about that. Let's just talk

5:14

about some hypothetical future cases. So it was

5:16

really just a jarring example

5:18

of our 2024 reality. Yeah, it

5:20

seemed to be pulled out of the

5:23

political calendar entirely. Yeah, actually, I think

5:25

they were probably at least several of

5:27

the conservative justices are

5:29

quite aware of the political calendar

5:31

and the stakes here and

5:33

that they achieved what they wanted, which

5:36

was a delay. Well, of course that's

5:38

what I'm saying. No, but I'm saying

5:40

it's not that they're ignoring what's going

5:42

on. This is their strategy. And it

5:44

has been, if you go back for

5:46

months, their strategy, because basically, we've

5:49

already established the

5:51

threshold of whether a president, this

5:53

president, can face charges for these

5:55

acts having to do with January

5:57

6th. We heard no lesser

5:59

Republican. Republican than Mitch McConnell. Say

6:01

so when he failed to deliver

6:03

a conviction

6:06

for him in the impeachment. He said

6:08

Donald Trump can always go on to

6:11

face the courts. Okay, you've got a

6:13

leader of the Republican Party in the

6:15

Senate saying he can face charges. Okay.

6:17

Nonetheless, this thing has been slow

6:20

walked from the beginning by this

6:22

court. You had Jack Smith, the

6:24

special prosecutor asking early on whether

6:27

the court could take it up

6:29

earlier, some of these procedural

6:31

issues. You had an appeals court

6:33

decision that was widely lauded for

6:35

its thoughtfulness. The court didn't have

6:37

to weigh into this at all.

6:40

So I mean, I think you have to look

6:42

at this not as an accident,

6:45

but as the objective. But I don't know,

6:47

we have a much more thoughtful, more

6:52

expert, incredible Supreme Court

6:54

advocate joining us right

6:56

now. Has joined the

6:59

party. Neil, welcome to the political

7:01

scene. Thanks for coming on. Thanks. Great

7:03

to be with you. As an attorney,

7:05

Neil has argued before the Supreme Court

7:08

more than 50 times was the acting

7:10

solicitor general during the Obama administration. So

7:13

given how much you've looked at the Supreme Court,

7:15

how deeply you know this place, how

7:18

do you think they are handling the

7:20

immunity claim that Trump's lawyer is making?

7:22

What stood out to you in

7:25

what you watched yesterday? Well,

7:27

I've probably seen about 400 oral arguments at

7:29

the Supreme Court. There are times I walk

7:31

out, most times I walk out and I

7:33

have a really good sense of what the

7:35

court's going to do. And this

7:37

was not one of those times. And

7:40

that itself is surprising because the claim

7:42

made by Donald Trump is so bonkers,

7:45

to use the technical legal term, that

7:47

that itself is surprising. Now, part of

7:49

it, and I do think the coverage

7:52

of the argument, I was actually at

7:54

the court and watched it in person,

7:56

I do think some of the coverage

7:59

was... a little bit wrong in saying

8:01

like Trump definitely is going to get

8:04

an immunity claim and so on. Part

8:07

of this is the dynamics

8:09

of oral arguments in which there are

8:11

a lot of early questions, but it's

8:13

the later questions that really matter. And

8:15

I'll explain why I think Jack

8:18

Smith's lawyer made a lot of headway through

8:20

the argument. The other is

8:22

just differences in style. I mean, the Trump

8:24

lawyer was very bombastic and that makes for

8:26

good media coverage, but it's

8:28

not the way the U.S. Supreme Court operates.

8:31

And this Trump lawyer, like he walked in,

8:33

he sat on the wrong side of the

8:35

courtroom. Then he proceeded

8:38

to make one extreme statement after another

8:40

and then went so far as

8:42

part of his theatrics to waive his rebuttal, which

8:44

you never do at the Supreme Court. It's not

8:46

like a show. It's

8:49

a solemn legal proceeding. So all

8:53

of that, I think, makes the reporting a

8:55

little bit skewed because the Jack Smith lawyer,

8:57

Michael Drieben, he was my former deputy solicitor

8:59

general, he's argued more than 100 cases, very

9:01

scholarly and like just more like a colleague

9:04

to the court than an advocate. And that

9:06

again doesn't make for great headlines, but it

9:08

did really show him building. If

9:10

you sat in that courtroom, you saw

9:12

it, he was building credibility with the

9:15

justices. That said, you know, there were

9:17

justices like Justice Kavanaugh and Justice Alito,

9:20

who clearly wanted to give some immunity

9:22

to Donald Trump. And

9:24

there were others on the court,

9:26

Soto Mayore, Kagan, Jackson

9:29

right away, who said, you know, how

9:31

bad this would be if the president's

9:33

launch coups were to have Navy SEAL

9:35

Team Six go and assassinate a political

9:37

rival. But Justice Barrett, notably, I would

9:39

include as part of that camp, you

9:42

know, midway through the argument, she even

9:44

said at one point in response to

9:46

a point made by Jack Smith's lawyer,

9:48

Michael Drieben, about how the president

9:50

couldn't be above the law, she had had

9:52

to be responsible for crime. She said, I

9:55

agree. So, you know, there

9:57

are four justices who are, I think,

9:59

very much. rejecting this notion of

10:01

absolute immunity for the president. And

10:03

the key question is, where is

10:05

the Chief Justice? Yeah.

10:07

Can I dig into that,

10:10

Neil? Because I agree, I was also

10:12

struck by Justice Barrett. But it seemed

10:14

to me that Justice Roberts,

10:16

Chief Justice Roberts was kind

10:19

of pretty firmly coming out, especially at

10:21

the beginning of the government's argument and

10:24

saying like, no, I have

10:26

questions about the appeals court ruling that

10:28

were presented. And so I feel

10:30

like that then shaped people's views about where Roberts

10:33

was and where the whole case was going to

10:35

go as a result of that. Yeah.

10:37

So the Chief actually began by asking

10:39

a bribery hypothetical, the Trump's lawyer, that

10:41

I think made clear that he is

10:43

very worried about an absolute immunity claim.

10:47

But then you're absolutely right. He then

10:49

went on later in the argument to

10:51

say, isn't the court of appeals decision

10:53

here tautological? It basically just says we

10:55

can always indict a president. And

10:59

this is the one place, and I thought the

11:01

lawyer for Jack Smith, Michael Grubin, did such an

11:03

excellent job. But this is the one place where

11:05

I think he fell down a little bit. And

11:07

I'm sure that Justice says some of them will

11:09

point this out. But the answer

11:11

to the chief is the court of

11:13

appeals opinion is really narrow. Indeed, it

11:15

starts with the words, we know

11:18

that the outset or analysis is specific

11:20

to the case before us in which

11:22

a former president has been indicted on

11:25

federal criminal charges arising out of an

11:27

alleged conspiracy to overturn federal election results

11:29

and unlawfully overstay his presidential term. And

11:32

this is a point that Liz Cheney has made

11:34

this morning, which is the one place in which

11:37

we know the president has cut

11:40

out constitutionally and has no duties

11:42

whatsoever, its certification of the

11:44

election for the best of reasons. Otherwise,

11:46

an incumbent president would engage in self-dealing.

11:49

Michael Grubin made this point a bit yesterday as

11:51

well. But I think that

11:53

there is a path to getting to

11:55

a narrower decision, just like the court

11:57

of appeals decision. And I

11:59

think it's something with the chief might actually

12:02

support the idea that at

12:04

least here when you're dealing with these

12:06

kinds of allegations in which the president

12:08

is constitutionally a nobody

12:10

when it comes to certification of

12:12

the election results and doesn't have any

12:14

suite of special powers then

12:16

there isn't an immunity claim and the trial

12:19

can go forward. Well, so

12:21

what would be the mechanism? I

12:23

mean, it seemed very clear that

12:25

there was sort of this effort to separate

12:27

out the public duties of the president and

12:31

the private actions of

12:33

him even if he's still in office. And

12:35

that those, I mean, as you're saying, it

12:37

seems like they were arguing that there can

12:40

be criminal charges for private acts. So how

12:42

do you separate that out? What do you

12:44

foresee when they talk about sending it down

12:46

to the lower courts? Is

12:49

this going to be part of the

12:51

specific trial that's already begun? Is it

12:53

a separate sort of hearing of some

12:55

sort? What do we expect to see

12:57

from this? Right. That's the million

12:59

dollar question. And the lawyers

13:01

for the two sides were definitely had

13:04

diametrically opposite positions. The Trump lawyers said

13:06

this has to go back to the

13:08

trial court. And the first

13:10

thing that has to happen is that any

13:12

mention of official acts has to be expunged

13:15

from the indictment. The

13:17

special counsel's lawyer by contrast said, no, no,

13:19

no, all you need to do is start

13:22

the trial. You can use the

13:24

same indictment. You can't use as

13:26

the basis for a criminal charge some

13:28

official act taken by the president. But

13:30

all that can come in is evidentiary

13:33

atmospherics. And that was what happened

13:35

after all in the United States versus Nixon,

13:37

the Nixon-Tapes case. I suspect

13:39

that if Smith is going to win,

13:41

that is the way to win. And

13:44

I know it's always hard to predict.

13:48

And I certainly want to say that here, that this

13:50

is even the justices were even all over the map.

13:53

There's one point actually in the courtroom

13:55

where I thought that there was a

13:57

little bit of a turning point and

13:59

it came almost two hours into the

14:01

article. argument more than an hour after

14:03

the special counsel's lawyer had begun speaking.

14:05

But Michael Dreeben said, you know, if

14:08

he described what Donald Trump did to

14:10

the justice department in terms of pressuring

14:12

the justice department to send letters, uh,

14:15

claiming that they had concerns about the

14:17

legitimacy of the election to the States

14:19

and when the justice department officials refused,

14:21

he threatened to fire them all. Um,

14:23

at that moment in the courtroom, you

14:25

could hear a pin drop and you

14:27

could see all the justices paying deep

14:30

attention. I do think that that

14:32

one, you know, that's the place in

14:34

which they're going to say, boy, we

14:37

really just can't let this behavior go on

14:39

scot-free. Now, you know, I think it's a

14:41

shame by the way that you're having to

14:43

rely on my impressions in the courtroom for

14:45

this. Um, you know, it's kind of a

14:48

crazy thing that we're in the 21st century

14:50

and we don't have the ability to have

14:52

all of us to says Americans who pay

14:54

for these courts to see the proceedings for

14:56

ourselves and you know, and watch the facial

14:58

expressions of the justices and the like. This

15:00

is also playing out in New York where

15:02

there's a hush money trial. We don't get

15:04

to see that either. I mean, this

15:07

is a big democratic problem. These

15:09

courts are deciding massive things for

15:12

our future and, um, you're relying

15:14

on little old me to try and translate it for

15:16

you. Well, we do have this

15:18

strange experience of picking up the newspaper in

15:20

the morning and seeing a sketch artists rendering

15:22

of the former president sitting in the courtroom

15:24

in New York. It is a, it's one

15:26

of those examples. If you were an alien

15:28

dropped in and explain how this process worked,

15:30

you would say this doesn't make any sense

15:32

to me. Exactly. All

15:36

right. Let's take a break. And when

15:38

we come back more from Neil Cottle

15:40

and the consequences of community justice. Okay.

15:54

I'm David Ramdick host of the New Yorker radio

15:56

hour. There's nothing like finding

15:58

a story you can really sink in. into that

16:00

lets you tune out the noise

16:02

and focus on what matters. In

16:04

print or here on the podcast, The New

16:07

Yorker brings you thoughtfulness and depth and even

16:09

humor that you can't find anywhere else. So

16:12

please join me every week for The New Yorker

16:14

Radio Hour, wherever you listen to podcasts. Can

16:30

I ask a question about something? At one

16:32

point, Samuel Alito kind of focused

16:35

his questioning on this question of

16:37

the potential long-range effects of this,

16:39

of whether or not allowing presidential

16:41

immunity would put democracy at risk.

16:43

You would get this in his

16:45

telling, a kind of pattern of

16:48

vengeful prosecutions of former

16:51

presidents. An

16:53

incumbent who loses

16:56

a very close, hotly contested election

16:59

knows that a real

17:01

possibility after

17:03

leaving office is not that the president is

17:06

going to be able to go off into

17:08

a peaceful retirement, but that

17:10

the president may be criminally prosecuted

17:13

by a bitter political opponent.

17:16

Will that not lead us

17:18

into a cycle that

17:21

destabilizes the functioning of our country

17:23

as a democracy? And we can

17:26

look around the world and find

17:28

countries where we have seen this

17:30

process, where the loser gets thrown

17:32

in jail. Where

17:34

do you think that ends up percolating through

17:36

the nine justices? Do you find that to

17:38

be the prospect of a broadly

17:40

persuasive argument? Well, I do

17:42

think it's a real legitimate fear. I

17:45

mean, Justice Alito maybe, in

17:47

my view, overstated it, but there is

17:49

a fear, of course, that a

17:52

vindictive president or attorney general could

17:55

go and target his political opponents,

17:58

including his former rivals. Um, you

18:01

know, I just think as justice Jackson pointed,

18:03

sure, I get that concern. But

18:05

boy, isn't there a bigger concern on

18:07

the other side of allowing a president to

18:09

be unchecked by the criminal law? I

18:12

mean, Trump's lawyer was asked. So, so tomorrow

18:14

it was like, you said in the court

18:16

of appeals that your position would allow the

18:18

president to go and send Navy team six

18:20

to assassinate a political rival, do you stand

18:22

by that position? Yeah. And sorry from the

18:24

Trump lawyer. Yes. If the

18:27

president decides that

18:29

his rival is

18:32

a corrupt person and

18:35

he orders the military or

18:37

order someone to assassinate him,

18:41

is that within his official acts that for

18:43

which he can get immunity?

18:45

It would depend on the hypothetical, but we can see

18:47

that could well be an official. I could. And why?

18:50

That is, I think the technical term

18:53

here is cray cray. Um, it is

18:55

not something that the constitution could ever

18:57

countenance. And either the whole point of

18:59

the constitution was to overthrow the monarch

19:01

and to make it so that nobody

19:03

was above the law. So this is

19:05

just crazy town. But Neil, but it

19:07

seemed like the justices, nobody

19:10

really expressed almost that point

19:12

of view. I mean, I think some of the

19:14

more liberal justices, see it, they came back at

19:16

him about how we don't have a King in

19:18

this country. And if they had wanted to give

19:20

a president immunity, they

19:22

could have, but they actually talked

19:24

about targeted assassinations as if

19:27

it was a possible policy choice

19:29

of an opponent in politics. I

19:31

mean, were you surprised that this

19:33

conversation was taking place in that

19:36

august forum without more of a

19:38

sense of, Oh my God, what

19:40

are we talking about here? Yeah,

19:43

absolutely. And the point in which

19:45

it got really almost ridiculous was

19:47

when Justice Kavanaugh asked

19:49

Michael Dreeben about Justice Scalia's

19:52

terrific dissent and Morrison versus Olson. This

19:54

is a case in 1988 in which

19:56

the independent council act was upheld seven

19:58

to one with. Justice Scalia is

20:01

the one saying, look, we can't

20:03

set up a constitutional structure that

20:05

creates a headless fourth branch of

20:07

government that can just prosecute anyone

20:09

at will. And Justice Kavanaugh said,

20:11

I'm really worried about that. I

20:13

take those concerns really seriously, which

20:15

is really odd because that person

20:17

who on the court who served

20:19

in the independent counsel's office was

20:21

a guy named Brett Kavanaugh. And

20:23

indeed, you know, back in 1998

20:25

and 1999, I

20:28

was first at the Justice Department, I had the privilege

20:30

of writing the special counsel regulations

20:32

and filling the independent counsel act.

20:34

That was my job. And

20:37

we looked at the abuses of Ken

20:39

Starr and that independent counsel's office as

20:41

exactly the model of what not to

20:43

do. So the whole point

20:45

of the special counsel regulations that

20:47

Jack Smith is serving under is

20:49

to prevent what Justice Scalia was

20:52

concerned about. And for Justice

20:54

Kavanaugh to say, well, I'm really concerned

20:56

about this is to, you know, is

20:58

just kind of the most surreal experience

21:01

you've wanted to imagine. Well,

21:03

you know, just to bring it back to

21:06

how do we constrain a rogue

21:08

president, right? Which is what in the end,

21:10

these arguments are about Donald Trump. This is

21:13

in a theoretical case, right? Like this actually

21:15

already happened. And one

21:17

of the things that's so striking is

21:19

that Trump's lawyer, right, he's arguing essentially,

21:21

well, the Constitution says we have impeachment,

21:24

of course, in the real world of politics today,

21:26

the prospect of a meaningful

21:28

conviction, not only has it never happened

21:31

in American history, but the way the

21:33

U.S. Senate is, there's just no meaningful

21:35

prospect for Democrats or Republicans to achieve

21:37

that kind of a supermajority in the

21:39

Senate that would result in a conviction

21:41

in this partisan moment. And so, you

21:44

know, to say, well, we have impeachment and

21:46

rely upon that, it struck me as so

21:49

remarkable. We have

21:51

the Katanji Brown Jackson clip about

21:53

what might result, and maybe we should

21:56

play that here, which is she invokes

21:58

this chilling scenario, essentially, of Donald Trump.

22:00

from being back in the Oval Office

22:02

and nothing can strain him. You seem to

22:04

be worried about the president being chilled. I

22:07

think that we would have a really

22:09

significant opposite problem if the president wasn't

22:12

chilled. If someone with

22:14

those kinds of powers, the most

22:16

powerful person in the world, with

22:18

the greatest amount of authority, could

22:22

go into office knowing that

22:24

there would be no potential

22:26

penalty for committing crimes,

22:29

I'm trying to understand what the disincentive

22:31

is from turning the Oval

22:33

Office into the

22:36

seat of criminal activity in this

22:38

country. So is there a disincentive

22:42

at this moment given the uncertainty that the

22:44

court sort of injected into

22:46

this conversation? Well

22:48

for over 200 years there's always

22:51

been that uncertainty. Every president, and

22:53

this is something that Jack Smith's

22:55

lawyer pushed really hard, every president

22:57

has feared the prospect of criminal

22:59

liability and it's encouraged them to

23:01

color within the lines. If

23:03

the court does what Donald Trump is

23:05

asking it to, I think

23:07

you're right to say those constraints are

23:10

now blown over and

23:12

all we have is impeachment, which is

23:14

a practical matter in today's age with

23:16

political partisanship being what it is, is

23:18

not much of a check at

23:20

all. And that's what

23:22

I think you heard Justice Jackson getting at.

23:25

Now look, I mean these are hard governance

23:27

problems. Whenever you're trying to design a system

23:29

to guard the guardians, it's a

23:31

real problem. It's an age old

23:33

problem that's the subject of Dr.

23:35

Seuss books, like Who Watches the

23:37

B Watchers, it's everything from Plato

23:40

on. But I don't mean to

23:42

understate the concern voiced by Justice

23:44

Alito or Justice Kavanaugh. It is

23:46

a real concern that I think

23:48

Justice Jackson got it exactly right.

23:50

The concern on the other side

23:52

is so much more overwhelming, particularly

23:54

when you're given a might of

23:57

the presidents and the modern presidency.

24:00

The map and the argument yesterday with one

24:02

justice think it was just as Jackson. Same

24:04

seems pretty anomalous that at all the people

24:06

have to have immunity in. oh jolly the

24:09

subordinates have immunity on you know Trump's on

24:11

lawyer said that are but you're just saying

24:13

the one person who gets off scot free

24:16

as the president me that's perfect Donald Trump

24:18

argument. Everyone else is left holding the bag

24:20

and he's the one who get say you

24:22

know get off Scot free lunch. Saxon.

24:25

and I was really thinking about that

24:27

because of course back to the criminal

24:29

trial that happening in Manhattan at the

24:31

exact same time. once since Donald Trump

24:33

supporters literally already gone to jail for

24:35

the Us and said he is now

24:38

being tried for. And you you think

24:40

of all the many kind of junior

24:42

folks that Donald Trump as you know

24:44

left for road kill a long way

24:46

Arizona just this week, Exactly. It's just

24:48

this week on here. I've seen people

24:50

indicted in Donald Trump's fake electors thing.

24:53

They wouldn't be any see. Collectors if it

24:55

weren't for Donald Trump's but he once again is

24:57

to see in and is. That it's good to

24:59

be the king's take away from this meal

25:01

of we have to let you get back

25:04

to your real work But before we go

25:06

if we could to briefly ask you how

25:08

do you anticipate this will play out? What's

25:10

the next key thing you're going to be

25:13

listening for looking for in this case. What

25:16

Will the justices either yesterday or

25:18

today? Probably today. We'll discuss the

25:20

case at a conference because of

25:22

a special session. We're not sure

25:24

exactly which stay at as this

25:26

is added to the counterweight. They're

25:28

gonna take a vote. Not. Right

25:30

then and to Who wins? And.

25:32

The senior most justice in the majority

25:35

will get to assign the opinion. That

25:37

person on the certainly will be the

25:39

chief justice. It seemed liked to spin

25:41

the dynamics. he was the one he's

25:44

gonna grab some sort of opinion. My

25:46

God is that it will be an

25:48

opinion that kind of doesn't give either.

25:50

Decide what it really wants, No absolute

25:53

immunity. Know. Rejection of all

25:55

immunity and then the question going back

25:57

to something you said earlier as. What

26:00

does that mean for the trial court? Does that mean

26:02

the trial court can go on with the trial right

26:04

away? Does it mean an

26:06

evidentiary hearing for the trial court? You

26:09

know, and this is the one thing I think

26:11

the commentators yesterday really missed, which

26:13

is even if Smith loses, it

26:16

was pretty clear that there

26:18

were nine, all nine justices

26:20

were fine with the idea

26:22

that private acts taken by

26:24

a president create criminal liability.

26:27

The Smith, the Jack Smith theory of the

26:29

case is a good chunk of the indictment

26:31

for purely private acts and even Trump's own

26:33

lawyer in the Supreme Court admitted as

26:36

much yesterday. So

26:39

if Judge Chuyckun lawns, and particularly she's

26:41

concerned about the point Liz Cheney made

26:43

this week, which is that the prosecutor

26:46

Jack Smith here has all sorts of

26:48

evidence that was not available to the

26:50

January 6th committee, and that evidence should

26:52

come out before the American public in

26:55

advance of the election. Judge Chuyckun

26:57

has the ability as the trial judge

26:59

to have evidentiary hearings that could go

27:01

on for weeks in which Smith

27:03

presents all of this evidence. It won't be

27:05

to a jury, but it will be to the

27:08

judge and ultimately to the American people.

27:13

So there is a path forward, even

27:15

if Trump gets what he wants, which

27:17

is some recognition

27:19

that official acts of the president

27:21

have immunity. Neil Cottrell, thank

27:24

you very much for coming on today. We're

27:26

grateful for it. Completely, Neil. Thank you. That

27:28

was great. Interesting. Thank you, guys. Great to

27:30

see you. Thanks for having me. When

27:34

we come back, we're going to talk more about

27:36

this question of what do you do about a

27:38

King Lee Trump? I'm

27:48

Alex Schwartz. I'm Nomi Fry. I'm

27:50

Vincent Cunningham. And this is Critics at

27:52

Large, a New Yorker podcast for the

27:54

culturally curious. Each week, we're going

27:57

to talk about a big idea that's showing up

27:59

across the cultural landscape. And we'll trace

28:01

it through all the mediums we love. Books,

28:03

movies, television, music, art. And I always want

28:05

to talk about celebrity gossip too. Of course.

28:08

What are you guys excited to cover in the next few

28:11

months? There's a new translation of the Iliad

28:13

that's coming out, Emily Wilson. I'm really excited

28:15

to see whether I can read the Iliad

28:17

again, whether I'm that literate, I

28:19

mean, the gurry event. I can't wait

28:21

to hear Adam Driver go again at an Italian

28:24

accent in Michael Mann's Ferrari. He

28:26

can't stop. I mean, and bless

28:28

him. I can't wait. Ultobane. Ultobane.

28:33

We hope you'll join us for new episodes

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28:38

you get pocket. You

28:40

really don't want to miss this. Don't.

28:42

Don't miss this. Don't miss it. See

28:44

you soon. God mule is so good. He sees

28:46

the sink. Six

29:00

dimensions that we don't get when we're at the

29:02

stage. No, I thought that was really, really helpful

29:04

to have not only the perspective of

29:06

in the room, but in

29:08

particular in rooms that the rest of us

29:10

can't get into. And his knowledge of behind

29:12

the scenes of the court is particularly valuable.

29:15

It's our most opaque institution

29:17

until Jane Mayer blows a lid

29:19

off of it in her upcoming

29:21

book. Jane, there was

29:23

a really interesting moment when Neil was talking

29:25

about this potential path that there might be

29:27

ahead in this case that I had not

29:29

heard that much about. You're following this very

29:31

closely. What are you picking up? Well, yeah.

29:34

I mean, I've now talked to

29:36

a couple really prominent Supreme Court litigators

29:38

who know the system very well, and

29:41

they actually see a

29:43

path forward that this case could

29:45

take. It's not a slam door

29:47

in everybody's face as it felt

29:49

like to some of us watching

29:52

this yesterday. The path they see

29:54

is that this may go down

29:56

to the lower courts at some

29:58

level, either the trial court or

30:00

the appeals court but probably the trial

30:03

court where they'll either – there'll be

30:05

some kind of hearing where they will

30:07

– the judge will decide which

30:09

of these charges are private

30:12

acts of the president and thus can

30:14

be charged criminally and which ones are

30:16

public. And that that process,

30:18

as Neil Cottrell just said, may

30:20

provide a lot of the evidence in

30:22

this case that the public hasn't seen

30:25

that may be very important for voters

30:27

to hear before the election. I mean,

30:29

it's a – you know, this is

30:31

a really circuitous, narrow thing. It's a

30:33

bank shot. But they see a bank

30:35

shot and they heard it yesterday and

30:38

you could hear it a little bit with –

30:40

especially with Amy Coney Barrett where she was going

30:43

down the list of charges against Trump and

30:45

saying, is that public? Is that private? The

30:47

next question is about the circulation of these

30:49

acts as private. Petitioner turned to a private

30:51

attorney, was willing to spread knowingly false claims

30:54

of election fraud to spearhead his challenges to

30:56

the election results. Private? I mean,

30:58

we dispute the allegation, but that sounds private to

31:00

me. Sounds private. Petitioner conspired with

31:02

another private attorney who caused the filing

31:04

in court of a verification signed by

31:06

a petitioner that contained false allegations to

31:08

support a challenge. That also sounds private.

31:11

Three private actors, two attorneys, including

31:14

those mentioned above and a political

31:16

consultant, helped implement a plan to

31:18

submit fraudulent slates of presidential electors

31:20

to obstruct the certification proceeding and

31:22

Petitioner and a co-conspirator attorney directed

31:24

that effort. You

31:26

read it quickly. I believe that's private. I don't want to

31:29

– So those acts – And she got

31:31

Trump's own lawyer to say several of them were

31:33

private acts. Right. Now, I think

31:35

that there was – a lot of people heard

31:37

that. I think there was a clarity that this

31:39

was not the end of the federal case against

31:42

Donald Trump, but it was a delay. And

31:45

the problem here is that in

31:47

the legal realm, there's a

31:49

path forward, but we're living in

31:51

the world with a very, very constrained

31:54

political calendar. And I think,

31:56

first of all, the lesson in the last three and

31:58

a half years has been that

32:00

the process and the built-in

32:02

slowness of the legal system,

32:04

which generally speaking is an

32:06

enormous advantage in many ways

32:09

for justice in this country, is also

32:11

an incredible liability when it comes to

32:14

holding Donald Trump to account. And he

32:16

has played off this his entire career.

32:18

He has certainly benefited from that. And

32:22

I do think there's a credibility issue, even this idea

32:25

that we're going to somehow rush and throw

32:27

some more evidence out into

32:29

the public view every single day

32:31

that this case is delayed more. That

32:33

brings it closer to the fall of

32:36

a presidential election year, whether it's an

32:38

evidentiary hearing or the actual trial. And

32:40

I'm very, very skeptical there will be

32:42

an actual trial on this. Regardless, you're

32:44

talking about putting this evidence out by

32:47

federal prosecutors that Donald Trump has exerted

32:50

much effort to demonize as

32:54

illegitimate persecutors of

32:56

him who are operating

32:58

off of President Biden's Justice

33:00

Department in order to demonize him in the

33:02

middle of an election. And

33:04

at a best case scenario that we're talking

33:07

about here, once again, it's about this clash

33:09

between the legal culture and the political culture.

33:12

And legally speaking, I

33:14

thought what Neil was saying was terrific.

33:16

The problem is that

33:19

enters into this toxic political environment.

33:21

And I think that's the tragedy

33:23

of 2024. I agree

33:26

with you on this. And

33:29

I think that the justices

33:31

seeming almost deliberately trying

33:33

not to deal with the case in

33:35

front of them, the conservative justices, shows

33:37

you that they're deliberately ducking. Although you

33:40

know that they can take a case

33:42

fast when they want to. They took

33:44

the case out of Colorado super fast

33:46

before the primary death. That's the one

33:48

they get him on the ballot. Yeah.

33:51

And they also took Bush v. Gore really

33:54

fast. And not only that, in that case,

33:56

they made it, they came to a decision

33:58

that they said, this is a one-time trial.

34:00

decision. It shouldn't stand as precedent for everything

34:03

else. It was loudly criticized by

34:05

many, but they can do this when they

34:07

need to do it, when they feel the

34:09

urgency. Well, U.S.C. Nixon, which is another example

34:11

of that, but I want to throw out

34:14

a provocation. And actually, I thought, Neil,

34:16

we didn't get a chance to weigh in on

34:18

this more. But, you know,

34:20

even he suggested, you know, that

34:22

this scenario thrown out by Justice

34:25

Alito, there's

34:27

something there to be concerned about. I cannot

34:29

dismiss out of hand the

34:31

fear that

34:33

a presidency without

34:37

immunity as they conjured up, as the conservative

34:39

justices conjured up. When I think about Donald

34:41

Trump back in the White House and the

34:44

idea that he would be emboldened to order

34:48

prosecutions of the next

34:50

president or the last president, I have to

34:52

tell you, like, this is not a theoretical

34:54

threat that these conservative justices were making, at

34:57

least as I see it, since Donald Trump

34:59

has already literally threatened multiple

35:01

times to indict Joe Biden.

35:03

He actually said that in

35:05

writing. Two things, though. One is the

35:07

key word there is absolute, because what

35:10

he's asking for is not

35:12

some reasonable level of immunity that

35:14

would in some effort. Of course,

35:16

but nobody was agreeing with that.

35:19

Well, though, because that is his argument.

35:21

His argument is absolute immunity. And what,

35:23

you know, Justice Alito is imagining is

35:25

this strange scenario in which we're supposed

35:27

to try to prevent Donald Trump from

35:29

being Donald Trump. That if the scenario

35:31

is that he's going to get in

35:34

office and then use this power

35:36

to prosecute his

35:39

predecessor, well, then in a sense, you

35:41

also have to acknowledge the fact that it

35:43

is up to the court to also

35:45

prevent him from even having the opportunity

35:47

to do that by recognizing that he

35:49

has made himself in a sense inadmissible

35:51

to the presidency. Can I just say

35:53

also, I saw a comment from

35:56

Harvard Law Professor Larry Tribe,

35:58

who said This sounds

36:01

like a congressional hearing yesterday, not

36:03

a law case. These

36:06

are very interesting issues. You

36:08

don't need to get to them in order

36:10

to deal with this case. These are in

36:13

a way, you're kind of taking the bait

36:15

when you fall into this endless trap of

36:17

becoming the next federalist

36:19

convention and deciding what should be

36:21

the rules for democracy. This

36:24

is a particular case in hand

36:26

and they should deal with the case in hand. They

36:29

basically are stalling by taking off all of these. I

36:32

think this is an excellent point. It

36:34

was raised a couple times in the

36:36

argument, but it didn't seem like anybody

36:38

picked it up, which is that you

36:41

don't need to go to all these

36:43

places. Rule before you. And with almost

36:45

the exact opposite approach of the opinion

36:47

in the appeals court that Neil began

36:49

our conversation with. But I kept thinking

36:52

in this whole conversation, there's the old

36:54

adage that bad cases make bad law.

36:56

And I would say we now have

36:58

the 2024 Coronary, which is that

37:01

bad presidents make bad

37:03

precedents. And I am worried about that. I am

37:05

really worried about that. And he spells them the

37:07

same way, by the way. I

37:10

want to ask a question too about

37:13

our own business here, which is sort

37:15

of trying to assess the role that

37:17

Donald Trump's legal drama plays in the

37:20

political culture, to use Susan's good term.

37:22

The assumption at the outset was, oh,

37:24

every day that Donald Trump's in court,

37:26

it sort of fortifies his base and

37:28

blah, blah, blah. Actually

37:31

the polls are a little more complicated than

37:33

that. What you're seeing so far is that

37:35

it hasn't actually helped him, that there was

37:38

some evidence that he's eroding

37:40

overall a bit, his support.

37:42

How do you think this is playing out?

37:45

Do you think that this is, in fact,

37:47

this image of him sort of sitting there,

37:49

glowering at the defense table, looking increasingly haggard

37:51

and desperate? I mean,

37:53

okay, personally, I think

37:55

that the role that we should be

37:57

playing is spending less time... forecasting

38:00

what we think other people think

38:02

about this. Well said. Less

38:05

about the polls and how it might

38:07

be playing. You know, how

38:09

do we know? We don't know. Our

38:11

job is to observe what's going on

38:13

and maybe add context and sort of

38:16

say, he's on trial in New York

38:18

for deceptive acts to try

38:20

to steal an election and put that in context.

38:22

This appears to be a pattern of the man.

38:25

We've seen this throughout. We can add

38:27

that. We can say he's been lying

38:30

for years and explain how he falls

38:32

back on lying again and again and

38:34

again. And by the way, I think Jane, I

38:36

totally agree with that. We're

38:39

sort of shouting into the

38:42

unknowable future in a way

38:44

with the prognostication around whether

38:47

the court cases do or don't matter. I

38:50

actually thought that what was happening this

38:53

week was in part a function of

38:55

what Neal brought up, which is the

38:57

remarkable lack of transparency

38:59

in our court system. And not only are

39:01

these current court arguments not televised

39:04

for the public, but this case in

39:06

New York is not. I think the result

39:08

quite clearly from my perspective is that it's

39:10

getting much less coverage and much

39:12

less gripping the public attention

39:14

than it would otherwise. And

39:17

I have to tell you that I thought the

39:19

testimony this week from David Pekker,

39:21

the former head of the National

39:24

Enquirer who engaged in, according to

39:26

his own sworn testimony, essentially a

39:28

corrupt deal with Donald Trump to

39:31

tilt the playing field in the

39:33

2016 election, literally

39:36

coming up with false stories

39:38

about Donald Trump's Republican rivals

39:41

and Democratic opponent in 2016,

39:44

Ted Cruz, Marco Rubio, Ben Carson,

39:46

Hillary Clinton. He admitted under oath

39:49

on the stand that he engaged

39:51

in a corrupt deal that Michael

39:53

Cohen, Donald Trump's fixer, would call

39:55

him up and give him

39:57

fake stories to put on the front of

39:59

his tabloid. that they were paying off people

40:02

on behalf of Donald Trump to help him.

40:04

This is explosive testimony. Trump, by the

40:07

way, once he became the president of

40:09

the United States, and I think is

40:11

directly relevant to the Supreme Court arguments,

40:13

Trump, according to this testimony by Pekar,

40:15

invites Pekar to the White House. He

40:18

holds a dinner for him. He's talking

40:20

about the payoff. Karen McDougall, another

40:23

woman, he was alleged to have had an

40:25

affair with in the White House. He invited

40:27

David Pekar, the National Enquirer guy, to

40:30

a meeting at the White House that

40:32

ultimately included Mike Pompeo at the time,

40:34

the director of the CIA, James Comey,

40:36

the director of the FBI. This

40:39

is extraordinary stuff, and I

40:41

don't think it's fully registered on people. I

40:43

don't get a sense that the country is

40:45

on the edge of its seats about this.

40:47

I can't tell, but you know, it's the

40:49

biggest. I don't think so. You know what

40:51

our job is? Okay, it's gripping you. It's

40:54

gripping me. My job is to explain to

40:56

the rest of the country why this is

40:58

extraordinary stuff. And you know, take it

41:00

or leave it. I agree. I also

41:02

think, you know, there are ... This is what we're

41:04

doing. We're telling people what happened in this court that

41:06

they may not have taken time out of their day

41:08

to see. I will just ... If we can all

41:10

choose our one detail that perhaps has had the most

41:13

searing impact on us, it might be, for me at

41:15

least, that Pekar testified that at

41:17

the White House in that meeting, Michael

41:20

Cohen told him that Donald

41:22

Trump has, quote, Attorney

41:25

General Jeff Sessions in his

41:27

pocket. Unbelievable. It's just unbelievable.

41:29

It's worth ... Rarely said

41:31

in a presidential context. Amazing.

41:35

I guess Donald Trump then spent the

41:37

rest of 2017 and 2018 being mad

41:39

at Jeff Sessions for not being ...

41:41

Exiting the pocket. ... in his back pocket. I

41:43

don't feel mad at all of them for not just being

41:45

in his pocket. That's what he assumed. He assumed, you know?

41:47

We talk about King Trump, right? Like, this is it. It's

41:50

the court of a guy who ...

41:52

That's how he operates. That's the

41:54

kind of story we would have again

41:56

and again and again and again if

41:58

we have four years of this. Can

42:01

I just, I want to end with a quote that

42:03

I just read this morning. Mitt Romney, right? No, no.

42:06

This was from Heather Cox Richardson's newsletter. Okay, we

42:08

got to play Mitt Romney. All right, but from

42:10

Heather Cox Richardson's newsletter, and she ends with a

42:12

quote from Tom Paine who was asked by others,

42:16

what are we going to do? We have no king?

42:18

And he said, in America, the law is king. Let's

42:21

hope he ends there. Okay. You're

42:24

so sublime. My quote to end the conversation

42:26

was from Mitt Romney who was asked by

42:28

reporters at the Capitol this week about the

42:30

case in New York. And he said, well,

42:32

you know, you don't pay somebody $130,000 not to have sex

42:34

with you. All

42:39

right. That's the quote. Words

42:42

that the founders never anticipated. All right,

42:44

Jane, Susan, always a pleasure. Thank you,

42:46

guys. Your royalty in my book, and

42:48

it's great to be with you. We

42:52

crown you the best possible

42:54

moderator. All hail King Evan. Thanks,

42:58

and we'll see everybody next week. This

43:03

has been the political scene from The

43:05

New Yorker. I'm Evan Osnos. We have

43:07

production assistants today from Alex Delia and

43:10

Sheena Ozaki with editing by Gianna Palmer.

43:13

This show was mixed by Mike Kuchman. Stephen

43:15

Valentino is our executive producer. Conde Nast,

43:17

head of global audio is Chris Bannon.

43:19

Our theme music is by Alison Layton

43:22

Brown. We'll be back next week. And

43:24

thank you very much for listening. From

43:27

BRX.