0:00

The Supreme Court this week heard

0:02

arguments in Trump the United States,

0:04

a case which asks whether the

0:06

former president enjoys presidential immunity from

0:08

criminal prosecution for conduct alleged

0:10

to involve official acts while

0:12

he was in office. Hello,

0:17

friends. I'm Jeffrey Rosen, president and CEO

0:19

of the National Constitution Center and welcome

0:21

to We the People, a weekly show

0:23

of constitutional debate. The National

0:26

Constitution Center is a nonpartisan nonprofit

0:28

chartered by Congress to increase awareness

0:30

and understanding of the Constitution among

0:32

the American people. In

0:35

this episode, we'll discuss the founders' views

0:37

on executive immunity, the text of the

0:39

impeachment judgment clause, and more.

0:41

Joining me to guide this important

0:44

discussion are two leading constitutional scholars.

0:46

John Yoo is the Emanuel Heller professor of

0:49

law at the University of California at Berkeley. He's

0:52

also a nonresident senior fellow at the

0:54

American Enterprise Institute and a visiting fellow

0:56

at the Hoover Institution. His tenth book,

0:58

Defender in Chief, Trump's Fight for Presidential

1:00

Power, was published by St. Martin's Press in

1:03

2020. John, it's wonderful to

1:05

welcome you back to We the People. Jeff, it's great

1:07

to be back. And the worst thing

1:09

about this podcast is I can't actually be in

1:12

Philadelphia with you where I belong and where I

1:14

grew up. We love your plugs for Philly and

1:16

you're always welcome back at

1:18

the center and on the podcast. And

1:21

Smita Ghosh is an appellate counsel at

1:23

the Constitutional Accountability Center. She served as

1:25

a Supreme Court fellow at the U.S.

1:28

Sentencing Commission and a law clerk for

1:30

Judge Victor Bolden on the U.S. District

1:32

Court for the District of Connecticut. Smita

1:34

joined in the brief of the scholars

1:36

of constitutional law in support of the

1:38

respondent. Smita, it is wonderful to welcome

1:40

you to We the People. Thanks

1:43

so much for having me and I'll echo the regret

1:46

that we're not in Philly. I went to

1:48

law school and graduate school at U Penn

1:50

and I love the city. Superb.

1:52

Next year in Philadelphia, as

1:54

we say around Passover time.

1:58

Let's begin with President Trump's arguments

2:00

for presidential immunity in Trump

2:03

the US. Just so we

2:05

understand them, John, what is President Trump

2:08

arguing is the scope of presidential immunity.

2:11

Trump argues that he has

2:14

absolute immunity from federal criminal

2:16

prosecution for anything he did while

2:18

he was president up

2:20

to and including the phrases,

2:22

the outer perimeters, outer

2:25

perimeter of the authorities of his

2:27

office. And he basically

2:30

makes three claims. One is

2:32

that the constitutional text

2:35

gives him this immunity. And he builds this on

2:37

a, I would say, not wholly

2:39

persuasive reading of the impeachment clause.

2:42

Then he says he has a

2:44

functional argument, which is, well, presidents

2:47

are already absolutely immune from

2:49

being sued by private people for

2:51

damages actions. So I should have that

2:53

same kind of immunity from being

2:56

prosecuted for criminal actions. And

2:59

then his third claim is, I think

3:01

it's really a bunch of, well, I would say

3:04

policy arguments. Wouldn't it be a terrible

3:06

thing if in the United

3:08

States we went down the road of

3:10

the examples of other countries where people

3:12

who win the presidency turn right

3:14

around and prosecute their predecessors? Wouldn't

3:17

that lead to a decline in the rule

3:20

of law, stability in our country?

3:22

We don't want to be a banana

3:24

of Republic. I would call outside all

3:26

that as sort of because our constitutional

3:28

policy rather than text structure

3:31

or history. Thank you

3:33

very much. Sumita, how would you

3:36

describe President Trump's arguments with

3:38

regard to text, history and

3:41

structure? Well,

3:43

I completely agree with that characterization.

3:46

I'll just add he has a couple

3:48

of quite a few arguments.

3:50

I'll add another thing I

3:52

noticed, which was an argument

3:54

that he is immune from prosecution

3:56

because courts don't

3:59

have the power to... to control presidential discretion.

4:01

He's acting as a president.

4:04

Courts can't review presidential actions.

4:07

He's basing that on the line of

4:09

cases, starting with Marbury versus Madison. He

4:12

also added another argument. I

4:15

say added because I don't think I recognized

4:17

it from the lower court proceedings about

4:20

federal statutes not applying to the president

4:23

unless it's explicitly stated that they do. So

4:26

I'll be interested to hear how the court deals with

4:28

that at the first instance. Thank

4:31

you so much. Well, now let's

4:33

dig into President Trump's arguments. John,

4:35

you signal that you did not

4:37

find the textual argument about the

4:39

impeachment clause convincing. Maybe

4:42

you can give us a sense of greater length

4:44

about why it is that you

4:46

think that the text and history of the

4:48

impeachment clause do not create broad

4:51

presidential immunity. Yeah,

4:54

let me start by saying I'm no shrinking

4:56

violet in defending the presidency. I

4:59

understand it's constitutional prerogatives, but it's not clear

5:01

to me that absolute

5:03

immunity is one of those prerogatives.

5:05

So what Trump says, if you

5:08

look at Article 1, Section

5:10

3, this is the part of

5:12

the Constitution that discusses impeachment and

5:15

how, specifically the earth says

5:17

about the House impeaching the Senate

5:19

undertaking its trial. And then

5:21

it says, judgment in

5:23

cases of impeachment shall not

5:25

extend further than

5:27

to removal from office,

5:30

disqualification under the United States. And

5:32

it says, but the party convicted shall

5:35

nevertheless be liable and subject

5:38

to indictment, trial, judgment,

5:40

and punishment according to law. Now,

5:43

the first thing we should take from that

5:45

clause is that clearly indicates there's no immunity.

5:48

Because it says, after you leave office,

5:51

you are subject to indictment, trial, judgment, and

5:53

punishment according to law. But

5:56

what the Trump team takes

5:58

from This is, You.

6:00

Can only be. Prosecuted.

6:04

If you have been removed from

6:06

office for impeachment, Now

6:08

a the reason I don't

6:10

think this is persuasive. As

6:13

because and you have to read this

6:15

in the context of the Federalist Papers

6:17

discussion of this provision. Which is

6:20

provided by Alexander Hamilton. What?

6:22

The Founders I think you're trying to do. Here's to

6:24

say. Up and Policemen is not

6:27

criminal. Nothing. You do,

6:29

And impeachment trial has any effect

6:31

on any sauce Could prosecutions impeachment

6:33

as just the way we remove

6:35

people from office from the executive

6:38

branch. And. So no matter

6:40

what happens if you removed or not

6:42

removed, there's no kind of double jeopardy.

6:44

There's no kind of. I

6:46

guess the fancy phrase will be rushed to

6:48

the caught of there's no I'm Does the

6:50

impeachment trump what happens and it doesn't find

6:53

or fact. Any kind

6:55

of prosecution or afterwards. I

6:58

think that's a better reading. Of the

7:00

taxed and is consistent with what

7:02

the founders said when they were

7:04

justifying the impeachment. Closet spirits. That's

7:06

interesting, there was no neither is

7:08

wasn't a huge amount, but there

7:10

is some good discussion of impeachment

7:12

clause in the. Federalist. Papers

7:14

and the anti Federalist papers because the

7:16

founders were worried. what would you do

7:18

if you had to remove a president

7:20

or remove a cabin Officers and they

7:22

really want it. Makes clear this is

7:24

really different. Than. What happened in

7:26

England where are the Peace Will was

7:29

kind of a criminal proceedings If you

7:31

were convicted of impeach when you could

7:33

be executed or thrown in jail. And

7:35

so the founders want to make clear

7:37

know where downgrading impeachment from that kind

7:39

of criminal punishment that the British use

7:41

even have a barry the whole idea

7:43

of a piece from from the British.

7:46

it's just the removal of people from

7:48

office and criminal law still don't exist

7:50

separately. And independently. Thank.

7:53

You very much for that

7:55

I'm and for calling our

7:57

attention. Alexander Hamilton in your.

8:00

He's in Newsweek, the Trump

8:02

immunity cases week, but he

8:04

doesn't need to prevail. You

8:06

also cites Hamilton and Federalist

8:08

Sixty Five emphasizing that impeachment

8:10

was not a criminal proceeding,

8:12

but only one to remove

8:14

an executive officer of from

8:16

office. Ah, Smi.in your brief

8:18

for the Constitutional Down Abilities

8:20

Center, you know that scholars

8:22

across the ideological spectrum have

8:25

rejected the broad claim Us.

8:27

Presidential criminal immunities. Tell

8:29

us more about the.

8:32

History is that has led to

8:34

scholars to reach that consensus. was

8:36

you discuss in your brief. Law

8:40

there. There's a lot

8:42

of great a evidence to support

8:44

that argument against and unity. So

8:46

first considering the constitutional tax, I

8:49

know we were just talking about

8:51

that's impeachment said smith clause as

8:53

as. As tough saw argument

8:56

that Trump is presenting but I.

8:59

I know I might even push back on

9:01

that Success! It. That the tricks of

9:03

that was deals with the. What happens

9:05

to the pretty to teach that

9:07

it provides that day stuff party

9:10

can still be subject to prosecution

9:12

he doesn't address. The

9:14

party is not indexed and translates

9:17

into that. A negative implications.

9:20

As a part is not and that said that they

9:22

must not be. Subject. To prosecution. So

9:25

I am and I agree with Professor is

9:27

reading that it just doesn't. Really speaks of

9:29

because it was meant to answer surveys that

9:31

these are two separate sets, the proceedings and.

9:34

A conviction and but with

9:36

the limited can occasions opponent

9:39

and posts. Doesn't lead to the

9:41

same limits and the criminal system. Ah,

9:43

another thing. To point out is that there's

9:46

no such to grant. Of immunity for

9:48

presidents. I'm like that granted immunity

9:50

to legislators and the speech and

9:53

debate clause that constitution specifically provides

9:55

their legislators are and. And

9:58

in some aroused. Proceedings

10:00

I'm sitting in their history

10:03

of the drafting of the

10:05

constitution. We do know

10:07

that and. James Madison at

10:09

one point suggested that the Commission

10:11

consider but privilege. Onto the

10:14

uprooted for the executives

10:16

are men according. To her

10:18

ah fans records that that's just a

10:20

cast as no response to that. I

10:22

can months in advance for the day

10:24

and they don't take that up. so.

10:27

Especially when right against the explicit

10:29

protection for on legislators and makes

10:32

me think about this summer. Intentional.

10:34

This is part of the design

10:36

and the contract for that ah

10:38

which we can. you can see

10:40

certain ratification. To basis that the

10:42

framers of the constitution didn't want to

10:45

create a system where the executive with

10:47

and via are they wanted to earth.

10:50

Or Lear was very different from that

10:53

British Kings. Cannot could do no wrong. And

10:55

cannot be held accountable by law.

10:57

Ah, then. Framers sad

10:59

and you know pamphlet supporting the

11:02

constitution and defending them to new

11:04

players over me that the on.

11:07

President would be. Kind.

11:09

Of held accountable and subject.

11:11

To in their words, as chance

11:13

I er das not exempt from

11:15

a trial if. He should be guilty

11:18

or suppose. Guilty so did. these are

11:20

things that that singers works and of

11:22

engaging with and at. A

11:24

part of the system but created. Thank

11:27

you so much for that! Met

11:29

with such an interesting part of

11:31

your brief where you noted the

11:33

crickets that followed Madison's a suggestion

11:35

of broad community and link back

11:37

to the presence of desire not

11:39

to be a junior or in

11:41

the view of the framers john

11:43

more about the history which you've

11:45

studied extensively to what degree was

11:47

that concern of the president not

11:49

be a chain link to the

11:51

rejection abroad immunity and then than

11:53

take us next to the the

11:55

function arguments on. There are

11:58

some precedence in this. Case

12:00

including Nixon and the Sterile which holds

12:02

that the President does enjoy absolute civil

12:04

immunity for official actions while in office.

12:06

Clinton and Jones would says the President

12:08

doesn't enjoy civil immunity while in office

12:10

for actions taken before office but the

12:13

court as never before and strip the

12:15

president's enjoys criminal immunity for this like

12:17

since taken while in office and tell

12:19

us why using functional reasons to not

12:21

support that brought him into. A

12:24

lot of the discussion urgent we have

12:26

had Dawson Ali and historically has been

12:28

about whether sitting presidents. To be prosecuted

12:30

or if you're just when I we are

12:32

cheap and those in the nineties and Washington

12:35

D C I don't have. We should admit

12:37

that were that old on this podcast. Butler

12:39

Gregory Remember. Can start going

12:41

after Bill Clinton in the Whitewater

12:43

investigation and. What? Should be

12:45

impeachable or his ultimately peach forces

12:47

what should be subject to Justice

12:49

Department prosecutions and adjust apartment as

12:51

taking the position at least since

12:53

Nixon years that a sitting President

12:55

could not be prosecuted by the

12:57

Federal government's. Although. That's.

13:00

Easy to solve because the President a success or

13:02

your head of the law enforcement for the second

13:04

forensic it's order. Prosecutors. Not it's

13:07

you know, prosecute. I'm so you don't

13:09

really need an immunity provisions, but that's

13:11

more. Most of the arguments have been

13:13

and of I think I find a

13:15

lot of the authorities that President Trump

13:17

draws from. Are. Actually about that

13:19

question about said the sitting President

13:21

speeds. And and and

13:24

you see the university cabin is very

13:26

interesting. Division of Opinion.

13:29

But. As a good most everyone was on the

13:31

has said but that's about sitting presence once you're

13:33

out of office and I think this is just

13:35

as apartments opinion to and past memos has been.

13:38

There is a presence Don't apply to once you're

13:40

out of office. Because all the things you

13:42

would. Be. Worried about like interfering

13:45

with a president executing has or

13:47

constitutional duties. Are did issue anymore.

13:50

And. That's I think. The also. The. Segue

13:52

into how to think about the. Ah,

13:54

I was a functional or policy arguments.

13:58

Up as you suggest there are

14:00

President some point about whether president

14:03

can be sued civilly. And.

14:05

Is cases from Nixon versus Fitzgerald is

14:07

the leading case of in those opinions

14:10

which are as a very much a

14:12

part of the burger Sir this transition

14:14

from the Warren to a burger course

14:17

the court does not undertake a careful

14:19

textual or historical analysis. It's almost as

14:21

the courts or says oh it would

14:23

be a good idea of president's we're

14:26

not substitute for these three reasons that

14:28

would interfere with the President's duties presence

14:30

would be worried all the time about

14:33

being sued When they make decisions, he

14:35

could. Actually be time consuming you

14:37

don't want presence. Always been thinking about

14:39

litigation as are doing their jobs. Of

14:42

I think. That. Approach would not

14:44

make sense to the current justices of a court

14:46

who has said on. Are not just

14:48

separation of Powers cases where they have said

14:50

this but all kinds of other cases where

14:52

they said. We. Start with attacks

14:54

in history. Made. A few

14:57

words: If you were to say you

14:59

use the approach the constitutional interpretation which

15:01

the court said out in Dobbs for

15:03

example. the youth start with a text,

15:06

irrational understanding and an historical practice. Around

15:08

the time. Or the

15:10

courts as weren't has tried to say

15:12

we're not interested in following this kind

15:14

of policy based approach that The Worn

15:17

Amber reports for. Site.

15:19

The I actually would be surprised if

15:21

the of Nixon vs Is Gerald had

15:23

been. Never. Decided. And.

15:26

You brought that case to the court today. Said.

15:28

Presidents have absolute immunity from civil lawsuits.

15:30

They would not write an opinion that

15:33

looks anything like. Nixon. Versus

15:35

Fitzgerald I said go be completely

15:37

different. So ah but he says

15:39

he's policy arguments are point would

15:41

be on Trump. The saying is

15:43

mike criminal immunity should basically match.

15:45

It should follow the outlines of

15:47

my civil. Immunity. There's

15:50

no actually sir functional reason why that

15:52

ought to be true and pretty good

15:54

Other plenty cases where are you know?

15:56

civil lively from a liability. The

15:59

I think the. Function arguments. The.

16:01

Trump is making are really I

16:03

would say are those that ought

16:05

to be in the minds of

16:08

presidents and prosecutors when they decide.

16:10

Whether. To use their awesome power.

16:13

Against former government officials. Which.

16:15

Is are we doing something that

16:17

would damage to the office of

16:20

the Presidency so much that it

16:22

would. Interfere with.

16:25

Handicap in some way the ability

16:27

of future presidents. I. Think

16:29

this is a good policy argument that

16:31

saying sick about the incentives are creating.

16:33

Now with this litigation for the way

16:35

future presidents do their job. That.

16:39

For I think what the trump for he

16:41

does not answer which is. Why?

16:43

His immunity? The answer to that problem.

16:46

Wise. And adjust. The. Current president

16:48

would worry about that too. and so if

16:50

they're ever going to take the step, I

16:52

mean I do think it's kind of crossing

16:54

the Rubicon in terms of practice is very

16:57

cross Rubicon. say we're gonna criminally prosecuted presidents

16:59

then I would think the current prison is

17:01

really gonna worry. What? Does

17:03

this after that on the future. What is effective

17:05

at a future Presidents. Why?

17:08

Of court should deal to consider that. It's think

17:10

about that when it decides on immunities. That's the

17:12

thing I think the Trump or his doesn't answer.

17:14

Very. Interesting suggestion that those are

17:17

considerations for criminal prosecutions and not

17:19

for a movie or smith. A.

17:21

You'd mentioned one other texts in

17:23

history argument that President Trump makes.

17:25

He looks to the executive besting

17:28

plans and argues that she's just

17:30

as Marshall and Marbury vs. Madison

17:32

interpreted it to apply absolute executive

17:34

immunity. But Jackson's refute the argument

17:37

from the Marshall never intended to

17:39

extend the logic of former presidents.

17:41

Tell us about what prison Trump's

17:43

argument is about. Marbury. Him whether or

17:45

not you find a persuasive. So.

17:48

President some arches, some. Marbury,

17:51

That eyes. And. And.

17:54

Courts. Can sit in judgment

17:56

Us presidential. Accents and.

17:59

And then. The. You mention Texas. Kind

18:01

of rebuttal to them which is that

18:03

it applies to current versus former presidents

18:05

ah which is which is certainly one

18:08

might or approach it another way was

18:10

offered by the court allow which was

18:12

to point out that about line from

18:14

Marbury of. Really? As

18:16

focuses on discretionary actions

18:18

that president's take and.

18:21

Song. A law isn't. Really?

18:23

A hyper discretionary actions court was

18:26

looking at. This is an one

18:28

that a map report for the

18:30

ministerial judy that you have to.

18:33

Discussions with the Prisoner true they

18:35

involve and editions of Florida not

18:37

the type of discretionary action whether

18:39

or not to institute a policy

18:41

or something like that where we

18:43

could imagine a the tip of

18:45

rule that Margaret particular. Food

18:48

interesting are John: the question of

18:51

whether the President's responsibility onto the

18:53

take Care clause immunizes him from

18:55

criminal prosecution based on scrub the

18:58

percentages of his lack some is

19:00

one did you say is better

19:02

adjudicate under Separation of Powers Concerns

19:05

that immunity and this is complicated

19:07

but important Tell us how you

19:10

think the President should in some

19:12

circumstances be able to say that

19:14

he can't be. Prosecuted.

19:17

Ah, Of. Without invoking, I'm in.

19:20

Answer to this is just too interesting

19:23

things you have. One is a I

19:25

should have mentioned earlier. it does your

19:27

point. Just. Is that

19:29

supports could actually say.

19:33

There. May be immunity, There may not

19:35

Immunity Trump still loses. Because.

19:37

What he did was not official. Or

19:40

and use their So Will Lead a kiss

19:43

or on in D C involving a civil

19:45

lawsuit. Against. President.

19:47

Trump by the Capitol. Police officers were

19:49

harmed in the jail or six attacked.

19:52

And they say even if Trump

19:54

has absolute immunity from. Lawsuits.

19:57

For damages would she clearly does under

19:59

pressure. They would say. And

20:02

the Dc circuit agreed. That.

20:04

Abuja does not cover things you do as

20:06

president. When you're acting

20:08

and your private capacity when you're

20:10

not exercising the our powers of

20:12

your office. And so the Dc

20:14

circuit a penis kisco blasting game

20:17

said. Well, Ah, One.

20:19

Thing we know you're not. When.

20:22

You're that you're not acting and and

20:24

fish capacity as when you're running for

20:26

office. When you're running for reelection, Baozi

20:28

looks almost by definition. You. Have

20:30

to be a private person because if

20:32

you weren't you would be abusing the

20:34

powers of your office as help yourself

20:36

get reelected. And so that's one thing

20:38

at the court could say here is.

20:41

Even if we accept it, Everything Trump

20:43

argues. The. Facts of January

20:45

six are all outside. The.

20:47

Powers of the Presidency. They were what

20:49

Trump was doing. Get reelected, use a

20:51

candidate and so. He loses on

20:53

that. that's one puzzles and we we didn't

20:56

discuss that's know that might appeal actually to

20:58

someone like Chief Justice Roberts who are just

21:00

trying to find some moderate ground and asked

21:02

keep the poor and out of having to

21:04

make anything a to controversial decisions. But.

21:09

Your point about up. Taking

21:11

care. Of which is

21:13

the presence responsibly to force of

21:15

law is still important. And

21:17

still could be the way that Trump gets

21:20

out of this even if it doesn't have

21:22

immunity. And. I think actually that's

21:24

why I could see the courts

21:26

actually having a fairly high level

21:28

agreements on. Trump not having

21:31

immunity. And then putting off

21:33

for another day, I think which is really

21:35

the important question, then is the same question

21:37

is blasting games. Of does the

21:39

President does present Trump have a defense.

21:42

To the charges. Based. On

21:44

the claim that he was carrying

21:46

out his constitutional duties and be

21:49

carrying our constitutional duties, Congress can

21:51

use the criminal law. To

21:53

try to cabin them. And. Away so

21:55

he could say for example, he didn't

21:57

really see this in the beginning. The

22:00

thing it i think actually more rhetorically are

22:02

politically then in the legal papers you could

22:04

say. Up everything I did on

22:07

January six and the days before or not

22:09

really trying to question the electrons as I

22:11

was trying to make sure the the what's

22:13

the most were being followed your I thought

22:16

there was frauds. I believed that as president.

22:18

My job to us again: whether there's

22:20

fraud and not to allow fraudulent electoral

22:22

votes. To. Be sent to

22:25

Congress encountered. Is

22:27

is that would raise this kind

22:29

of. I'm is a criminal

22:31

law being used year to actually infringe

22:33

on my authority as President. But

22:36

again, a he hasn't made that argument

22:38

really that clearly in this level of

22:40

the proceedings and it even if he

22:43

loses immunity case. Issue. Then.

22:45

The kids goes back down to the trial court.

22:47

the judge shotgun and he's happy he's got the

22:49

opportunity. To make that argument, Unity doesn't

22:52

actually tells one where the other, whether he's right

22:54

about that. Me

22:56

to what do you think

22:58

of trans suggestion that an

23:00

alternative argument for President Trump

23:02

might be that from. The

23:06

President might have a different from a

23:08

claim that he was carrying out his

23:10

constitutional duties and a so separation of

23:13

powers concerns prevent Congress from using the

23:15

criminal law to cabin them out the

23:17

met. Many people think the court may

23:19

look for. A holding

23:21

short of saying the from President

23:23

is completely amenable to our criminal

23:26

law and what would your valuation

23:28

about separation of Powers argument? For.

23:31

We're meaning consequences, your thoughts on ability

23:34

and her father free from the bus

23:36

and gentleness. And are. You

23:39

didn't make that argument more explicitly their

23:41

that that and as for the out

23:43

as as an offer a slightly different

23:45

but they're still end up for this

23:47

post election. Accents

23:49

and. Ah,

23:52

Point that's a sister court in

23:54

that case, and I'll also Americanization

23:56

scholars freeze. Needless to say, there's

23:58

a very limited role. Constitutionally that

24:00

the president has over making sure that

24:02

there is no fraud and. Presidential

24:04

election that is by design

24:07

abroad as given to Congress

24:09

and and. Few.

24:11

Sounders actually created the

24:13

electoral college system partially

24:15

to insulate though our.

24:18

Results: The presidential election Some

24:20

executive control. I think that's

24:22

a point made and that their systems. Historians

24:25

brief in this case. that makes

24:27

that point pretty persuasively. I'm

24:29

sorry I think that. Exit.

24:32

Route which would it. Be. A

24:34

little difficult for Trump to use

24:36

because it said corporate hopefully contend

24:38

with that axe point and. I

24:41

certainly there's some. Elements of

24:43

Ever at the broadest level of

24:45

generality. The. President. Has

24:47

a communicating with advisers

24:49

doing some. Things

24:52

that sounds kind of presidential

24:54

on. This particular interest in

24:56

ensuring that there's no election fraud

24:58

is actually something that's not really

25:00

delegated a president. John.

25:03

President Trump Also, in his breeze, argues

25:05

that he proposes a backup ruling and

25:07

says even if the court rejects absolute

25:09

executive immunity they could require and express

25:12

statement by Congress before assuming that any

25:14

given from his stature applies to the

25:16

President. Is that a

25:19

different separation of powers arguments on the one that

25:21

you just made and what do you think is

25:23

most likely has occurred might be sympathetic to. I

25:27

think so. Just this is

25:29

basically what we call clear

25:31

statement rule. It's not really

25:33

a constitutional rule. instead with

25:36

the. Trump. Team is saying

25:38

is there are the Supreme court cases

25:40

and administrative law. I apologize to listeners

25:42

to raising this question of mystery. Love

25:44

the most boring field of law as

25:47

much as a somehow extremely important as

25:49

the supreme court be states. So these

25:51

cases like this is a Franklin vs

25:53

Massachusetts and business well known once and

25:55

so those cases say would generally will

25:58

not read a statute. To. Include

26:00

the president. And. It's coverage

26:02

unless it says President in the

26:04

statutes up. The sergeant was also

26:06

interesting. We raised in Trump vs.

26:08

Anderson by President Trump's Ah that

26:10

reminds us of a disqualification clause

26:12

question under the Fourteenth Amendment and

26:14

he's A and some others argue

26:16

that well, if it doesn't say

26:18

what you mean I said or

26:20

in the forties, Mm should mention

26:22

the presidency as an office for

26:24

which you can't run if you

26:26

committed instruction. but it doesn't say

26:28

that it's as electors to the

26:30

President and vice. President So and

26:32

Officers of United States. I'm

26:35

not sure whether this principle

26:37

of especially for interpretation would

26:40

apply to criminal. It's of

26:42

never has been. It's mostly

26:44

been applied an administrative law.

26:46

ah. And so you had the

26:48

you would have to have an argument. Seems

26:50

to me. To defend

26:52

a clear statement. grow here by saying

26:55

it's really protecting a constitutional principle. Am.

26:58

I. Don't think that's really weird.

27:00

Trump's gonna succeed I'm I can't

27:03

see the court creating this or

27:05

general principle that none of the

27:08

criminal laws. Apply. To

27:10

the President unless they say so. And

27:12

here I think the court might be

27:14

persuaded by practice on. Of

27:16

was course we've not had any

27:18

President's actually charged both had plenty

27:20

of presidents investigated. We sets

27:22

and watergate of you their even before what did

27:24

you put the must be was at Watergate. And

27:28

a President Clinton. None of

27:30

those. Special. Counsel discussions would

27:32

have made any sense at all. If.

27:34

You had to put the word President in

27:37

the Federal Criminal Laws. Because

27:39

there were no federal criminal law was at

27:41

those cases that and specifically mention the word

27:43

president. Instead. I began

27:45

to show top of this In a minutes is

27:47

said. I think President Trump's. Of.

27:50

Were most likely grounds to

27:53

beat. This would be by

27:55

say none of the charges

27:57

of indictments actually fit. What?

27:59

Happened. In January Six. It's not

28:01

that they don't mention the were

28:03

President's is that the Supreme Court

28:05

has actually given rather narrow interpretations

28:07

or might this term. Given our

28:09

interpretations to the criminal laws that

28:12

the Special Counsel's chosen to use

28:14

rather than a given, it is

28:16

quite. I think it's I think

28:18

it's some states are the Special

28:20

Counsel did not charge Trump with

28:22

insurrection or sedition. Smith.

28:24

Our President Trump. Argues.

28:27

In the alternative that he should

28:29

be able to take advantage of

28:32

qualified immunity which requires a violation

28:34

of clearly established law by a

28:36

descendant, is that qualified immunity argument?

28:39

A version of what John just

28:41

said: I'm and my President Trump

28:43

argued because of the statutes hundred

28:46

which he's charged that clearly cover

28:48

his conduct. Therefore, the law isn't

28:50

crew established and he should, they're

28:53

qualified immunity and one of the

28:55

odds with the court. Might. Go.

28:58

For that argument, And. I

29:00

would think that it would take a little more

29:02

and her said at this. Isn't

29:05

that clearly established in that? there's

29:07

not. Any. Success.

29:10

That it doesn't apply to the President Or

29:12

know that? Get those other historical practice going.

29:14

The. Other by ah.

29:17

By an edge on it, I guess. Haven't

29:21

thought much about the qualified and in in

29:23

a parallel. that's as our. Efforts

29:26

didn't address it. Sun.

29:28

And sticking out at all or

29:31

successor. Than.

29:34

Court has a really address qualified

29:37

immunity and for. A

29:39

For a president? that's as that says.

29:42

Doctor and then attire said other

29:44

actors that hasn't. Applied

29:46

to the president yet and the

29:49

reasons. For an eye.

29:52

On as as are always kind of

29:54

a balance of accountability principles first as.

29:56

Like. Protecting that. For

29:58

this particular position and neither. If it did

30:00

our job so I think it would come down to

30:02

a similar. Ah, Colors,

30:06

Set. of policy concerned answers or

30:08

professor you would think fat and.

30:11

About the role of that president,

30:13

of the impact as prosecution and

30:15

on that ability to target. Absolutely

30:18

John, What what do you think

30:20

of qualified immunity might support? Go.

30:23

For that, and or third, converging

30:25

on another position for President Trump

30:27

is it more likely to be

30:29

would you do sandwiches that said

30:31

charges or four sets for his

30:33

alleged conduct? I'm just trying to

30:35

map out the possible approaches to

30:37

coordinators. Think that

30:39

they would go down the qualified immunity rude

30:41

and all the arguments. As if we've

30:44

been discussing is this is a court that

30:46

really does believe tax structure and history. Or

30:49

the a dentist feel some

30:52

allergies towards is just blatantly

30:54

policy driven. Approach that

30:56

you see it particularly in the

30:58

qualified immunity contests I'm also in

31:00

I generally thinking of these immunities

31:02

eat to. It's very hard whether

31:04

to understand whether their constitutional are

31:06

you know the qualified immunity context.

31:08

I think that's. Better.

31:10

Argument is, you know they're usually

31:13

used in cases where a state

31:15

officer is being prosecuted or sued

31:17

under something that arise from the

31:19

Fourteenth Amendment and reconstruction a monster

31:22

and terms of violation of an

31:24

individual's constitutional rights. And so the

31:26

claim. I think bitcoins these days

31:28

for qualified immunity, so it's something

31:31

that Congress implicitly provided when it

31:33

enacted. The. Implementing statutes like

31:35

the Civil Rights Act and so on

31:37

so doesn't really make sense, I would

31:40

say. To think well when

31:42

Congress passed the Federal criminal laws

31:44

that are issue here like the

31:46

Fraud Statutes, Voting Rights Act, the.

31:50

A single talked about it

31:52

does Sarbanes Oxley document obstruction

31:55

charge. To: They really implicitly think

31:57

they're going to give qualified immunity when they passed

31:59

their stuff. These two. And.

32:02

Government officers I I delight. I doubt

32:04

it in the I don't I haven't

32:06

seen any proof or evidence of that.

32:08

I would think this court, though done

32:10

expand qualified immunity from it's existing boundaries.

32:13

It would want to see the kind

32:15

of evidence they demanded in other areas

32:17

rather than just sort of as a

32:19

present. Trump's claim is more like, oh,

32:21

this just makes the legal system more

32:23

harmonious or fits better. For.

32:26

Process to have this to stop House

32:28

Grounds. Done. The

32:30

same difference or on time to expand the

32:32

qualified immunity. Don't come back as it

32:34

seems the. Courts. Are

32:36

becoming. A bit

32:38

more skeptical of it and then again trying

32:40

to tether it's of their intentions of Congress

32:42

on passing as of right statutes rather than

32:45

in this case this free floating. Ah,

32:47

protections so. I

32:50

think that's another reason why. I

32:52

wouldn't expect that. For. Those. Who.

32:55

Don't know? Let's turn to the argument

32:57

you make in your newsweeklies that even

32:59

after a Supreme Court loss on immunity,

33:01

Trump will be able to claim of

33:04

the prosecution violates his constitutional rights or

33:06

powers or the charges legally don't fit

33:08

his conduct. On January Six. He. Raised

33:10

the issue of the claim that

33:12

eventual successor shouldn't be able to

33:15

prosecute present for valid constitutional authority

33:17

a drone strikes and you say

33:19

even absolute immunity from to defend

33:22

on the ground the charge. Of

33:25

Violence has constitutional authority as Commander in

33:27

chief to sort of understand the structure

33:29

that that a separatist that would happen

33:31

in L M M M M M

33:33

they would be or a separation of

33:35

Powers defense to to tell us about

33:38

how President Trump could to raise these

33:40

defenses. I

33:43

think it comes up in two ways or

33:45

one is he could. Make the a

33:47

broader claim again we we don't have the facts.

33:49

I don't know what he would say a you

33:51

know I trials she had to produce evidence of

33:53

this but he could say. I.

33:57

Was executing federal law.

33:59

Where. And I. Was. Doing.

34:01

What I was doing And the pure a bus

34:03

clean the election in January sex. Or.

34:07

The. Speech I gave wasn't trying to incite

34:09

any one I was questioning, but I thought

34:11

under federal law is my duty to question.

34:14

The. Legitimacy of certain electoral votes from Sir and

34:16

space program by a personally on the fact I

34:18

think is wrong about this I am A. I

34:20

don't think there was. Fraught.

34:22

I'm not going to turn into a bar.

34:25

I don't think there's any fraud sufficient to

34:27

change Alchemy election, I'm But you might say

34:29

that. Ah, so he would

34:31

have some kind of constitutional defense

34:33

that any kind of federal prosecutions.

34:36

Were. An effort to interfere with

34:38

his duty to it for so

34:41

long as I raises an example.

34:43

Analogies: What is your future Presidents?

34:46

Us wanted to prosecute President Biden.

34:48

I'd. Send you cause to any civilian

34:50

casualties and drone strikes when you ordered

34:53

withdrawal from Afghanistan are present by would

34:55

make the same argument I was. Executed

34:58

my constitutional started to evict me hundred

35:00

she's power see can use a criminal

35:02

statute passed by Congress to. It

35:05

as if it is the same argument

35:08

that presence of May before. Every Andrew

35:10

Johnson made the same argument when he

35:12

was be prosecuted for firing as Secretary

35:15

of War which Congress had made an

35:17

illegal act. I think that's the view

35:19

that she's just as past your buddy

35:21

just to Texas test adopted in the

35:24

famous Myers case. In it's if it

35:26

really is a presidential power, Congress correct

35:28

criminalize it. It's a exercise I think

35:31

instead would trouble do. In. His

35:33

defense, he'll say. If. You look at

35:35

the three charges of fraud on the United

35:37

States. Have was what I was doing. Fraud

35:40

on the United States. Because.

35:43

A Supreme Court. and just like as

35:45

does a year to terms ago and

35:47

less term it has been steadily narrowing

35:49

the use of the fraud statutes against

35:52

politicians. Are. They in particular has said

35:54

we want to see. Politicians

35:56

doing something from to gain control of

35:58

money or property. Whatever.

36:01

Trump was doing here you know wasn't

36:03

money and property him off. Then.

36:05

The second charge is the one

36:07

that's before the court right now

36:10

with regard to the other January

36:12

Six defendants. Which is.

36:15

There's a statue pass a part of

36:17

Sarbanes Oxley Law back in two thousand

36:19

one, two thousand tubes, which makes it

36:21

a crime to obstruct a congressional proceedings.

36:24

And the question is is that. Really limited

36:26

to the production of documents. Before.

36:29

Congressional Investigation or as the phrase

36:31

and the statue broader Trump's gonna

36:33

say look, Whatever I was doing

36:35

it wasn't trying to impede a

36:37

Congressional investigation by are destroying documents

36:40

or tampering with them or tampering

36:42

with witnesses something like that. And.

36:45

Then the third claim I think the third claim

36:47

I think is actually the weakest one is. If.

36:49

Trump succeeded. This would interfere with

36:51

the voting rights of all Americans

36:53

who voted for President. I

36:56

don't think that's quite right. He didn't

36:59

block access to the ballots steam really

37:01

dilute the votes the way of people

37:03

have tried in the past. He was

37:05

trying to get electoral votes stopped being

37:08

touted or pause and they're counting. But.

37:12

I don't think that's individuals' is

37:14

violating the individual right of voters.

37:17

To. Cast their votes, Up so

37:19

the I mean he has actually pretty to claim

37:21

at the charges a relief and you could say

37:23

look none of these laws are really great with

37:25

something like jang or six and my because no

37:27

one ever for saw something like January Six. I

37:30

actually don't understand why he didn't

37:32

charge Trump instead with insurrection or

37:35

with sedition, because that, really, to

37:37

me, actually fits better. A

37:39

kind of planes that their mating about the

37:41

facts of Jackson and president by this out

37:43

there soon think Trump did commit insurrection a

37:45

says it on the campaign trail so. Charging

37:48

him with these sort of white collar crime

37:50

laws. I think the their their I think

37:52

they're gonna run into trouble with the supreme

37:54

court given the way the courts been moving

37:57

on these laws for the last few years.

38:00

Thank you for last! Ah sweet

38:02

A let's focus on the obstruction

38:05

charges as strong mention the courts.

38:07

In the Fisher case which had

38:09

heard recently is deciding whether or

38:11

not that. Statute. Which

38:13

was passed after the

38:15

Sarbanes Oxley financial crisis.

38:18

Applies to January six. Edu

38:22

is the Supreme Court likely that take up

38:24

that question with regard to President Trump. In

38:27

a separate. Case. Or minded in

38:29

this case you as be trump signal

38:31

whether or not is sinks instructions statute

38:33

applies to conduct or not. And

38:36

first assuming our I think that. says.

38:39

Spilling it's awful said as ton

38:42

of rebuttals to the individual charges

38:44

that can't say says. It's kind

38:46

of like. First.

38:48

The overall plate that this isn't. This.

38:52

Conversation the shouldn't be about this

38:54

broad reaching. Ah, Claim.

38:56

that a few states the. The.

39:00

Criminal process should be allowed to work

39:02

out so that then. The.

39:05

President's unlike any other. Ascendant

39:08

raise objections to the particular

39:10

chooses. Faces including

39:13

to selected some for and the

39:15

case at the Serbian Oxley Acts

39:17

Objections based on. The statutory tax.

39:19

So getting to that level I

39:21

think would mean rejecting the. Of

39:23

the and community claim. I'm

39:26

and you asked if leave. It at

39:28

whether I thought the court was told

39:30

there as. A

39:32

nod though are arguments on Thursday. I

39:34

dance and earn and in that decision

39:37

I don't imagine so I'm in. This

39:39

is an issue that seem to at

39:41

least from the arguments last week divide

39:43

the core. About

39:45

be kind of how exactly to read

39:47

that part and parcel of Sarbanes Oxley

39:50

at my think there's a good argument

39:52

or at least a sensible one that

39:54

this. Set. It should

39:56

be rad. Broadly. But says

39:58

there's no explicit sexual. Mm.

40:01

So. I'm not sure that is something that.

40:04

Would come up and less. It really has to

40:06

as. Immigrants

40:08

Opinion. But

40:11

again, I think that's exactly why,

40:13

though, The. Court said

40:15

we're just the broad and unity. Play

40:17

him and allow the. Individual.

40:20

Charge based objections to confirm. Thank

40:24

you for that! The Jonas me

40:27

to said a boost to the

40:29

Us Supreme Court and the Dc

40:31

circuit were divided about whether to

40:33

read the Sarbanes Oxley obstruction provision

40:35

probably remarried of the broader judges

40:37

or Judge Pam. Judge Walker saw

40:40

it as a general obstruction provision

40:42

and Judge Kansas into some sort

40:44

of was about obstructing specific documents

40:46

and my not apply to January

40:48

Six. Conduct or do

40:50

you have thoughts about. Who's.

40:53

Reading is more persuasive the broader narrow

40:55

one. And do you expect this debate

40:57

to show up in Us? Be trump

40:59

or not, Is

41:02

a tough questions I guess me

41:04

for production. Just the Yogi Berra

41:07

said the difference a really hard

41:09

especially.the future such as by text.

41:11

Actually of these cases it's hard

41:13

to predict what changes your dinner

41:15

sites on. All

41:18

I can do is sort of. Our project

41:20

based on what the courts been doing in

41:22

related cases so I don't Uma. I don't

41:24

have yet to podcasts and this. Of

41:26

an episode on this just there was

41:29

a case of few years ago about

41:31

not exactly the same law, but a

41:33

similar law. Where are the government caught?

41:35

A guy who was a catch insists

41:38

that he wasn't supposed to catch under

41:40

federal law and so he's or he

41:42

saw the federal investigators coming through the

41:44

fish back in the ocean and so

41:46

the question was do that. Is.

41:48

That sad to like destroying evidence.

41:51

I chose that obstruction. Of

41:53

and many of the justice is

41:55

now in. The conservative majority think

41:58

it was obstruction was. Obstructed

42:00

at the statute that's written really about

42:02

documents and so on really shouldn't be

42:05

read to be sat brought as so,

42:07

putting aside whether a technical reading the

42:09

statute I think you could have a.

42:12

Good. Views on either side: whether the

42:14

statue should be bread broad or

42:17

narrowly. I think you've seen this

42:19

court. Steadily. Narrowing

42:21

the scope of white collar criminal law.

42:23

Ah, they did it in the idea

42:25

of fraud. They've done it in this.

42:27

What Is a congressional. Proceedings.

42:30

What Is obstruction? Ah now

42:32

I will say this or the judge

42:34

shared Judge Paul Nicholls who's given in

42:36

this Fisher case, the statute this now

42:38

we're reading. He is the only judge

42:40

who is found. It has the now

42:42

of reading. A

42:45

Judge Nichols said of so the way the

42:47

statue or says you can't do a you

42:49

can't be doing became to see which are

42:51

all about destroying evidence and then it's as

42:53

and then anything else. Answer the

42:55

question is is the anything else cause

42:57

like just trying to capture other kinds

43:00

of destroying documents or is it actually

43:02

catch all that much broader? That

43:04

includes any kinds of obstruction. I

43:07

I would guess that the court if I

43:09

had to guess I would bet that this

43:11

court given the what's been going it would

43:13

probably give the statute the narrow reading. Now

43:16

I think this is gonna concern Chief Justice

43:18

Roberts because he doesn't want to be seen

43:21

as someone who likes turn the key and

43:23

let out all the January Six defended simultaneously.

43:25

But I actually I haven't looked at all

43:27

the cases, but my understanding is on. There's

43:29

lots of other charges said have been successfully

43:31

brought against each Angry Six. Protesters are writers

43:33

or whatever you call insurrectionist as he went

43:35

on that would have you recall months or

43:37

so. This would not be the equivalent of

43:40

letting them all out. The would

43:42

I think in many cases reduce their

43:44

sentences. Or so. I see

43:46

a that's that's what I fight the bet. Money.

43:49

I think that's how I would bet the court going. Thank

43:53

you for that purpose. Me to his

43:55

record does read the instructions tattered narrowly

43:57

than for sure. what do you think

43:59

the effect or from January Six procedures

44:01

would be and on the prosecution as

44:03

President Trump. My senses

44:06

the soon as. Processing you. There's other.

44:09

Kinds it, Ah

44:11

issue for most of their January

44:13

six or later prosecutions and Vice

44:15

President Trump's of while ah but

44:17

it but it would be is.

44:20

Kind of disheartening result, I think to.

44:23

Use. Use this as

44:26

their. Moments of the Net.

44:28

This. Particular. Statute. As such

44:30

it is a pretty like unique

44:32

one asked situations Ah but this

44:34

is also an employee. At.

44:37

On that are of Employment law that Congress

44:39

passed to in order to hold. People.

44:42

Accountable for disrupting proceedings so.

44:45

I think without a strong textual reason not

44:47

to read it and. And

44:50

as in a Broadway way this. Is

44:53

a good fear? Really disappointing for

44:55

the court to. Take

44:57

this opportunity and then leaves those surveys

44:59

actually and without that they had spread

45:01

that had to send. an

45:05

imminent use cases while

45:07

another. Case of the

45:09

cleaner than reading. Be.

45:13

Commercially, Change rather than. Sex

45:15

rather than the. Statutory have such a

45:18

thing? Side to circumstances where

45:20

he. Overthrew

45:22

the current limits to. Wait

45:25

for criminal prosecutions? Even it

45:27

is. Sir.

45:29

Even in these. Instances where

45:31

the particular case doesn't and. Will

45:35

John you you endured is reduced

45:37

by saying that number. Two

45:39

senses the President Trump may have against for

45:42

some charges will turn on. Whether.

45:44

He acted on January sixth as

45:46

president's. Arm or a

45:48

candidate for office in a private

45:50

citizen said you sit on likely

45:53

succeed Christmas overreach, inappropriately expanding white

45:55

collar criminal law third cover January

45:57

six or combined this timidity not.

46:00

Companies regular citizens as we were

46:02

rub up this great discussion on

46:04

double digits of did it does

46:07

to Does that mean you think

46:09

that the Us Supreme Court will

46:11

completely reject his immunity arguments and

46:13

wait for the subsequent cases from

46:16

to raise the defenses? Or is

46:18

there some. Narrowing. Or.

46:21

Intermediate position that the court

46:23

my converge around to reject

46:25

a sweeping immunity claim. But.

46:28

Lay open the possibility that

46:30

some prosecutions might. Be

46:33

not permitted. Hell.

46:36

It's a tough question just because. ah I

46:38

see what you're saying is as a clerk

46:40

gonna follow. The. Law as it's best

46:42

the term for that or is it

46:45

going to take statesmanship into account And

46:47

so it's up to me If I

46:49

had as I was try to sink

46:51

the way Chief Justice Roberts or think

46:53

would be thinking as institutional leader the

46:56

courts as he does not want. A

46:58

court to make any decision I think.

47:01

That could plausibly be said later

47:03

to have decided the Twenty Twenty

47:05

Four election. I so

47:07

I was thinking the way I think he

47:09

would think. I think she doesn't mind. These.

47:12

Cases delaying trials because I think

47:15

what he's really worried about is

47:17

a federal court. He

47:19

doesn't have the power of the state courts, but

47:21

over federal courts. Finding from.

47:24

Guilty. Of a crime before the

47:26

election. In. A way that by tenets

47:28

up when you can tell ya that I think

47:30

something like two percent of people who say they

47:32

would vote for Trump right now say they might

47:35

change your mind as use convicted a salami. I

47:37

think that really worries. The. Chief Justice

47:40

and so. Actually,

47:42

finding immunity I think would be

47:44

a step too far because that

47:46

would permanently. Prevent. Any prosecution

47:48

of any former press of for

47:51

a former president for anything up

47:53

so. I so I think

47:55

I could see and saying there's no. Immunity.

47:59

But there's. The litigation have all these

48:01

substantive charges and have to come asked

48:03

that immunity doesn't tell you one where

48:05

the other. Whether. Trump's Corrected

48:07

is a criticism of the substance of

48:10

the charges, so immunity just music goes

48:12

back down to the trial judge. And.

48:15

I could see. I'm not sure but I could

48:17

see the courts saying maybe the trial judge should

48:19

make some legal rulings. On. The sufficiency

48:21

of his legal charges before rushing into

48:23

the trial? That's totally within the discretion

48:25

of the trojans. A lot of people

48:27

missing that were commenting the Road is.

48:30

Just. Shrunken could say I'm gonna hold off the

48:32

proceedings as she has with immunity case. And

48:35

say I'm going to decide his legal questions

48:37

because if Trump wins on those legal questions,

48:39

there's no need to have a trial that

48:41

would really slow down the proceedings and push.

48:43

I think a final verdict past November. Or

48:46

just fuck truck and could say. And.

48:48

This is I think out to the most trial

48:50

judge's Let's have a trial list of Dawn. And

48:53

of trump gets acquitted than I don't mean to

48:55

make any rulings on a these legal questions are

48:57

you see that attitude amongst you know the trial

48:59

judge's in some of the other. From

49:02

cases and these s which most trial

49:04

trial judge's would do that I think

49:06

that outcome would warrant. I think John

49:08

roberts the most from a statesmanship level

49:10

because he's again he doesn't want the

49:12

federal courts to do something that would

49:15

decide your lox and south for him.

49:17

I don't think he minds. Any

49:19

step like. No. Immunity

49:21

Bus. But turn your attention to

49:23

the legal claims that Trump is

49:25

racist. I don't think that bothers

49:27

John Roberts so much that my

49:30

father people really wanna see Trump

49:32

prosecuted victims. But. I think. Roberts.

49:34

Is that's gonna happen? Robbers would rather that

49:36

happened after November. Twenty Twenty four. Very.

49:40

Interesting as meters you think about

49:42

what to justice Roberts and record

49:44

my do? what are the possibilities

49:46

you envision Arthur Short of simply

49:49

rejecting absolute unity crime and revere

49:51

about. I'm

49:53

in anger. I. Agree

49:55

with that characterization of like seats.

49:58

At the reason I did thinking about and. You

50:00

think that. It's

50:02

a pretty damn guy. That

50:06

delay is what is seen as

50:08

head of Not and Tengo. El

50:11

Accents. I feel like. Either

50:13

rider resulting in this is a

50:15

case that involves the presidential candidates

50:17

have no matter what happens, there's

50:19

an impact on the presidential election

50:21

and in other cases where at

50:23

presidential election was at stake the

50:25

supreme court has. Acted quickly

50:28

just to come up with

50:30

a resolution and. My.

50:32

I'm thinking of. Boxers is Gore

50:34

even the case about Trump's disqualification

50:36

with at it answer relatively. Quickly

50:38

so I think there's bad. I

50:41

agree with that kind of. Tactical.

50:45

Prospective. Them. Bay. In

50:47

my purse it might look. Like

50:50

the court is the least interventionist as

50:52

there's. A result that of

50:54

sensor that a decision back down to

50:56

send the kid back down for the

50:58

district torture resolve some more thorny constitutional.

51:01

Issues and take a sign to do

51:03

so. But that's really it. Too.

51:05

Bad as a way to think about it

51:08

cause I I think either way there's a.

51:10

Impact on the Presidential election and and and

51:13

this case and at there's a strong argument

51:15

that the people on the right to see

51:17

this case resolved before they make a decision

51:19

that it. To to vote for

51:21

an awful for the presser. Thank

51:25

you so much more. A nuanced

51:27

I saw someone really eliminating discussion

51:29

of one of the higher stakes

51:32

cases of fear Trump for says

51:34

us John Smeaton Thank you so

51:36

much for joining. Series

51:44

episodes British accent most discerning as

51:46

engineer but no point was provided

51:49

by some for most sorry For

51:51

Smith and Euro Norris. Recommend

51:54

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51:56

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