0:00

If only wife had a remote control,

0:02

you could pause or rewind. Well,

0:05

life doesn't always give you time to change

0:07

the outcome, but Pre Diabetes does. Take the

0:09

one minute risk test today at do I

0:11

have pre Diabetes.work brought to you by the

0:13

Ad council. It's Pre Diabetes Awareness Partners. From

0:18

the opinion pages of The Wall Street

0:20

Journal, this is the dome and watch.

0:23

Donald. Trump on trial in two

0:26

venues and the same day, obviously

0:28

for different legal purposes. While Hush

0:30

Money Trial continues in New York,

0:32

Supreme Court hears arguments over Trump's

0:35

claim that he has immunity from

0:37

prosecution for Visual Axis, a potentially

0:39

landmark case that has implications for

0:41

every future President, not just Donald

0:44

Trump. Welcome, I'm Polish. You go

0:46

with the Wall Street Journal opinion

0:48

pages here and are Potomac Watch

0:50

Podcast and I'm here with my

0:53

colleagues Said Carl Pettersson. And kim.

0:55

Strasse. Of welcome to you both

0:58

So Big day! Must listen to

1:00

excerpts from the opening arguments for

1:02

both sides: First Donald Trump's attorney

1:04

John Sour and then Michael Driven.

1:07

Who. Is council for the government

1:09

without presidential immunity from criminal prosecution.

1:11

Here can be no presidency as

1:13

we know it. For

1:16

two hundred and thirty four years

1:18

of American history, no President was

1:20

ever prosecuted for his official acts.

1:23

The framers of our constitution

1:26

viewed and energetic executive as

1:28

essential to securing liberty. If.

1:31

A president can be charged. Put

1:34

on trial and imprisoned for his

1:36

most controversial decisions as soon as

1:38

he leaves office, that looming threat

1:40

will distort the President's decision making

1:43

precisely when bold and fearless action

1:45

is most needed. this court. Has

1:47

never recognized absolute criminal

1:50

immunity for any public

1:52

official. Petitioner. However,

1:54

claims had a former president.

1:57

has permanent criminal immunity for his

1:59

official act unless he

2:01

was first impeached and convicted. His

2:04

novel theory would immunize former

2:07

presidents for criminal liability for

2:09

bribery, treason, sedition,

2:11

murder, and here conspiring

2:13

to use fraud to overturn the

2:16

results of an election and

2:18

perpetuate himself in power. Such

2:21

presidential immunity has no foundation in

2:24

the Constitution. Well, there

2:26

you have it, framing the questions

2:28

at hand on both sides of

2:30

the argument. Kyle, pretty expansive arguments

2:32

on both sides there. They're framing

2:34

it in really broad terms. Broader

2:37

than I think the Supreme Court will

2:39

ultimately decide based on the questioning we

2:41

heard at this oral

2:43

argument. Just a little backdrop

2:46

here, the legal context.

2:49

Both sides are correct. The Supreme Court

2:51

has never addressed this question of absolute

2:53

immunity for former presidents, presidents

2:56

from criminal prosecution. It has, however,

2:58

addressed the question of immunity from

3:00

civil lawsuits. And I did so in a 1982

3:02

case, Nixon v. Fitzgerald, and

3:05

found that the president does

3:07

have absolute immunity from civil

3:09

lawsuits for acts

3:12

that are within the outer perimeter, and that's the

3:14

phrase the court used, the outer perimeter of

3:17

his official duties. So

3:20

the question for the court is whether

3:22

the principles enunciated in Nixon v. Fitzgerald

3:24

would apply in criminal cases. The government

3:26

says no, Kyle. Yeah,

3:29

to provide a little bit more context of that, Nixon

3:31

v. Fitzgerald case 1982 was brought

3:34

by a management analyst with the

3:36

Department of the Air Force who testified

3:38

before Congress and then was subsequently dismissed

3:40

from his job. And he

3:42

sued several people, including the president at

3:45

the time, Richard Nixon, and the argument

3:48

at the Supreme Court, and that's what the

3:50

Supreme Court eventually held, was that the president

3:52

has absolute immunity from these

3:54

kinds of civil suits within

3:56

the outer perimeter of his official duties. If

3:58

you're laid off... by the Air Force,

4:01

you can't sue the President of the United States.

4:03

And I think the similar

4:05

argument holds in the criminal context here.

4:07

There's all sorts of things that are

4:09

alleged in the January 6th indictment brought

4:12

by Jack Smith, including that the President

4:14

was talking to Vice President Mike Pence

4:16

and urging him to take some sort

4:19

of actions in the joint session of

4:21

Congress. And it seems to

4:23

me that that is an official action

4:25

by the President that he cannot be criminally

4:27

prosecuted for after the fact. But

4:29

I agree with you that some sweeping

4:31

arguments on both sides and the justices

4:34

seem to be groping for a way

4:36

to draw the line in the middle

4:38

somewhere that would protect official actions of

4:40

presidents and allow the President to do

4:42

his job as we normally think of

4:45

it, while also not protecting the President

4:47

if he does something like accepts a

4:49

bribe for appointing somebody as an ambassador.

4:51

Yeah, the essence of the questioning in

4:54

most cases was to zero in on

4:56

this point of at least the President

4:58

has some immunity, it would seem,

5:00

Kim and Michael Drieben, the

5:02

counsel for the government, basically

5:05

arguing that the Nixon v.

5:07

Fitzgerald principle doesn't apply to

5:09

prosecutions from criminal actions because

5:11

there's actually less need

5:14

for a President to worry about

5:16

those prosecutions than he

5:18

has to worry about civil suits

5:20

because anybody can sue anywhere for

5:23

a civil action. But

5:25

prosecutors, of course, have the

5:27

prosecutorial power. And he

5:29

argued that they would be more restrained

5:31

because, well, they have the

5:34

prosecutorial cannons of when you can bring a

5:36

case. They are bound by

5:38

having enough evidence to be able

5:40

to convict beyond a reasonable doubt.

5:43

And it was fascinating to me, and I think

5:45

telling for the way this case might go, that

5:48

Chief Justice John Roberts, for example,

5:51

questioned Drieben on this and said, really,

5:53

do you really think that prosecutors might

5:55

not ever decide to

5:57

bring a case That. I'd

6:00

be somewhat se on evidence and

6:02

he zeroed in on the Dc

6:04

circuits previous ruling the appellate court

6:06

from which this case is being

6:09

appealed, That reading their opinion as

6:11

saying the fact of prosecution was

6:13

enough to justify. Prosecution of

6:15

a former presidents and he found

6:17

bad position wanting and I didn't

6:19

think Dream did a very effective

6:22

job of answering that. I think

6:24

the word he is was, isn't that

6:26

a pathological statement That because you have.

6:28

Indicted the President. Therefore, the President can

6:30

be indicted. It was a good. Moment

6:32

Just and this point about civil versus

6:34

a criminal liability in one way. The

6:37

argument that drew been as making is

6:39

somewhat nonsensical if you think about it.

6:41

If we have agreed that there should

6:43

be some. Sort. Of civil

6:45

immunity for. A President acting

6:47

within the perimeter of his duties,

6:49

you would in some ways assume

6:51

that that would obviously also applied

6:53

to a criminal situation because criminal

6:55

cases are so much more serious

6:57

than several. So in some ways

6:59

you could argue that Nixon be

7:01

Fitzgerald, was setting a lower bar

7:03

and that dream and has it

7:05

the wrong way around. This argument,

7:07

yes, John. Roberts that a good job.

7:10

He said really, we need to just

7:12

trust in the good faith of prosecutors

7:14

and when Driven came back and said

7:16

well, it's not just the prosecutors you

7:18

know, this had to go in front

7:20

of a a grand jury Roberts was

7:22

similarly dismissive, noting and he didn't exactly

7:24

use the line but the old mine

7:26

about how prosecutors can get grand juries

7:28

to essentially indict a ham sandwich, so

7:30

that's not much of our guard whatsoever

7:32

at look. I think one bit of

7:34

evidence that is not helping Driven and

7:36

Jack Smith at the moment is that

7:38

we already have for. Democratic prosecutors that

7:41

have gone after this president. This

7:43

is obviously not an unusual. Situation

7:46

as the Dc circuit argue.

7:48

this somehow donald trump was sweet generous

7:50

and that he would never get another

7:52

president like that but i noticed samuel

7:55

alito was bringing up some acts that

7:57

prior presidents had done and wouldn't they

7:59

count certainly have been

8:01

prosecutable. He in particular mentioned FDR

8:04

and his treatment of Japanese Americans

8:07

during the war. Putting them in internment

8:09

camps. In internment camps, correct. Whether

8:11

or not someone might have sued over that or

8:13

he might have been prosecuted for that later. We

8:16

on our pages had a good piece

8:18

from David Rivkin, our contributor, talking about

8:20

other acts, Abraham Lincoln and his suspension

8:23

of habeas corpus. Truman and

8:25

his commandeering of steel plants, which was

8:27

over termed by the Supreme Court as

8:29

unconstitutional. So we might

8:31

not have had prosecutors in the past who

8:33

are willing to do this, but I think

8:36

an argument hanging over the court is that

8:38

the partisan theories have been unleashed with these

8:40

cases. And the very high possibility that

8:42

if there is no immunity whatsoever, that

8:45

every president is facing the possibility of

8:47

future prosecution on a criminal basis. All right,

8:49

we're going to take a break and we come

8:51

back more on this fascinating oral argument on immunity

8:53

for presidents when we come back. If

8:55

only life had a remote control, you could pause

8:57

or rewind. Well,

9:00

life doesn't always give you time to change

9:02

the outcome, but prediabetes does take the one

9:04

minute risk test today at do I have

9:06

prediabetes.org. Brought to you by the Ad Council

9:08

and its prediabetes awareness partners. Welcome back. I'm

9:15

Paul Gigo here on Potomac Watch with

9:18

Kyle Peterson and Kim Strassl. And

9:20

let's listen to Justice Katanji

9:23

Brown Jackson questioning the counsel

9:25

for Donald Trump. Talk about

9:27

her concerns about presidential immunity. You

9:29

seem to be worried about the president being chilled. I

9:32

think that we would have a

9:35

really significant opposite problem if the

9:37

president wasn't chilled. If someone with

9:39

those kinds of powers, the most

9:41

powerful person in the world with

9:44

the greatest amount of authority could

9:47

go into office knowing that

9:49

there would be no potential

9:52

penalty for committing crimes. I'm

9:55

trying to understand what the disincentive is

9:57

from turning the Oval Office into.

10:00

you know, the seat of criminal

10:03

activity in this country. Kyle,

10:05

seat of criminal activity. She

10:07

seems to clearly be taking an expansive

10:10

view of what presidential powers would be.

10:12

I didn't think Dreeben did a particularly

10:14

good job of, not Dreeben, the sour

10:17

of responding to that. But

10:19

that is the concern here, that somehow if

10:21

you give president immunity, he would be able

10:23

to do just about anything. Trump thinks that's

10:25

what he should be able to do. But

10:28

I don't think the justices do.

10:30

They're focusing on a narrower set

10:32

of official actions. But Justice Kagan

10:34

zeroed in on the question, well, could he

10:36

support a military coup or call for a

10:38

military coup? What do you think about that

10:41

line of concern? Well, I think it's a

10:43

very important thing to underline because there were

10:45

several justices that were trying to figure out

10:47

the answer to this question. So Chief Justice

10:49

John Roberts brought up this example

10:51

of somebody who accepts a bribe to appoint

10:54

the briber into an ambassadorship.

10:57

And he was saying if the appointing

10:59

of the ambassadorship is the official action,

11:01

then can you still be charged

11:03

with accepting the bribe? And what would that

11:06

indictment look like? It would look like the

11:08

president of the United States accepted a million

11:10

dollars, dot, dot, dot, dot, dot. And

11:12

so it was fascinating to watch them try to figure

11:15

out the answer to that question. The

11:17

attorney for Donald Trump seemed to say that

11:19

there were precedents that had allowed those kinds

11:21

of prosecutions in the past.

11:23

But there's whole scopes of activity

11:25

that I think would not be

11:27

covered by any sort of

11:29

official immunity. And this Kagan back and

11:31

forth, I thought, was pretty good with

11:33

the attorney for Donald Trump. So

11:36

she asked the defendant, meaning Donald Trump

11:38

signed a lawsuit in Georgia alleging election

11:40

fraud. Is that official or unofficial conduct?

11:42

And the attorney said that would be

11:44

unofficial. OK, what about Donald

11:46

Trump called the Speaker of the House

11:48

in Arizona asking him to

11:50

get the legislature in session to look

11:53

at a fraud hearing. And so that,

11:55

according to the Trump attorney, would be

11:57

official conduct, the president communicating with state

11:59

officials. officials. And so what we may

12:01

end up with here is a ruling providing

12:04

some kind of immunity allowing the president to

12:06

do his job while sending it back down

12:08

to the lower courts to figure

12:10

out in this specific case with Donald Trump

12:13

what is official and what is not. Well,

12:15

Kyle, you preempted me here because I have

12:17

a clip from that Kagan exchange, which I

12:19

think gets to the heart of the matter.

12:22

Let's listen to Justice Kagan question John Sauer.

12:24

The defendant called the chairwoman of the Republican

12:26

National Committee asked her to gather electors in

12:29

targeted states falsely represented to her that

12:31

such electors votes would be used only

12:33

if ongoing litigation and one of the

12:35

states changed the results in the defendant's

12:37

favor. We have taken the position that

12:40

that is official. That's official? Yes. Why

12:42

would that be official? Because the organization

12:44

of alternate slates of electors is based

12:46

on, for example, the historical example

12:49

of President Grant is something that

12:51

was done pursuant to an ancillary

12:54

and preparatory to the exercise of

12:56

the core recommendation clause power. So

12:58

when President Trump... Couldn't he have

13:00

taken this action just in

13:02

the status of a candidate? The

13:04

fact that he could have done so doesn't demonstrate

13:07

that he did do so in this case. And

13:09

based on the allegations, we think it's clear he

13:11

did not, that this was done in an official

13:13

capacity. There we have it, Kim. That just really

13:15

does get to the heart of the matter because

13:17

after you've decided the question of a president having

13:19

some immunity, which a lot of the justices spent

13:21

time figuring out, then you

13:23

get to the question, okay, for what?

13:25

And what acts fall within the outer perimeter?

13:28

The counsel for Trump arguing

13:31

that contacting those electors would be

13:33

an official action. And

13:35

their brief suggests that's because he

13:37

has an obligation as president to

13:39

try to make sure that the

13:41

elections are fairly and honestly conducted.

13:44

And then Justice Kagan questioned, somewhat

13:46

skeptical of that, arguing that, well,

13:48

that's implying in her question that

13:51

that is not an official action. It's actually

13:53

in the context of him running for president

13:55

and trying to get reelected. And that's, I

13:57

think, going to be a big part of

13:59

how... this plays out is where

14:01

you come down on those

14:03

questions, because let's assume that the court

14:05

does decide that there is some immunity

14:08

for the present. He has absolute immunity

14:10

from criminal prosecution for those official actions.

14:12

Then the question becomes, okay, what actions

14:15

are those? And then there'll be

14:17

the debate over those. Now, the Supreme Court

14:19

could decide that in this case

14:21

itself, at least provide some guidance. I

14:24

suspect they won't, that the justices will in

14:26

fact remand that down to the

14:28

trial judge to have fact finding on whether

14:30

or not, and some judgment about whether or

14:33

not those actions are official. Yeah. And

14:35

when that happens, by the way, or

14:37

if that happens, watch Democrats' heads explode.

14:39

I mean, they're already gearing up to

14:41

be furious that that is a judgment

14:43

of this court, because of course, and

14:45

maybe this is my cynical read, I apologize

14:48

for always being so cynical, but if you

14:50

are of the belief that this case was

14:52

brought in part because there are many on

14:54

the left that would rather not see

14:56

Donald Trump be qualified to actually sit

14:58

in office again, then the whole goal of this

15:01

is to get this done and dusted before

15:03

anybody casts a vote and before

15:05

he could potentially obtain higher office

15:07

and then pardon himself or shut

15:10

this prosecution down, as it were, in some

15:12

way. And so they're going to be really

15:14

unhappy. My argument to that is

15:16

that the court has no obligation

15:19

whatsoever to follow

15:21

an election timeline as it goes

15:23

along in this case. This is

15:25

a very, very serious discussion, one

15:28

that I wish had never been brought to the

15:30

fore, but now that we're facing it, it

15:32

has to be settled and it has to

15:34

be settled well because it involves the conduct

15:36

of all future presidents and the very makeup

15:38

and shape of the presidency. So

15:41

it's good that the Supreme Court is going

15:43

there. I would note that it's interesting on

15:45

the Jack Smith side, Michael Drieben is trying

15:47

to muddy some of this and argue

15:49

that the question shouldn't be an outer perimeter.

15:51

It should be whether or not there was criminal

15:53

intent. It should be whether

15:55

or not, for instance, there are specific

15:58

statutes that apply to the president. that he's

16:00

breaking or not breaking, whether he's been given

16:02

the advice of the attorney general not to

16:04

engage in certain behavior first, whether

16:07

it's a wartime moment, et cetera.

16:09

But I still am of the belief that we probably are

16:12

going to land in this outer perimeter argument in

16:14

the end in the decision. relevant to

16:16

that, Kyle, Justice Kavanaugh, raised a point

16:18

suggesting that he thought that the federal

16:21

conspiracy statute is so vague

16:23

that it is an invitation for

16:26

prosecutors, the U.S. attorneys around the

16:28

country and others, to bring prosecutions

16:31

rather easily against former presidents. Interesting

16:33

because that is related very much to what

16:36

Donald Trump has been charged with. Right. And

16:38

there was a lot of discussion also on

16:41

that question about whether laws need to specifically

16:43

mention that they apply to the president in

16:45

order to apply to official actions.

16:47

Another one that came up was there's

16:49

a law that makes it a crime

16:51

to induce illegal immigration. And one of

16:53

the attorneys said, is that something that

16:56

could apply to presidential statements on the

16:58

stump speech or from the White House?

17:00

And his view was that, no, in

17:03

order to apply to presidential conduct in

17:05

office, it has to specifically say that.

17:08

And I thought Kavanaugh is often a guy

17:10

to watch because he can be the swing

17:12

vote. Another moment of his that I thought

17:14

was notable was he said, listen, we don't

17:17

have executive privilege mentioned explicitly in the Constitution,

17:19

but we don't think Congress can demand every

17:21

piece of paper of the White House's

17:23

work product and executive immunity. Why isn't

17:25

that rooted in the same sort of place? All

17:27

right. We're going to take another break and when

17:30

we come back, we'll have more on this fascinating

17:32

day at the Supreme Court on presidential immunity when

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back. I'm Paul Jugo with Kim

18:33

Strauss and Kyle Peterson talking about

18:35

the Supreme Court oral argument on

18:37

presidential immunity. Let's listen to Justice

18:40

Neil Gorsuch talking to Trump's

18:42

counsel about a particular question

18:45

of whether a president can pardon

18:48

himself. What would happen if presidents

18:50

were under fear

18:52

that their successors would

18:55

criminally prosecute them for their acts in

18:57

office, whether it's whether they're

19:00

engaged in drone strikes, all the hypotheticals. I'm

19:02

not going to go through them. It

19:04

seems to me like one of the incentives that

19:06

might be created is for presidents to try

19:09

to pardon themselves. Do you have

19:11

any thoughts about that? That is,

19:14

I didn't think of that until your honor, that

19:16

is certainly one incentive that

19:19

might be creative. What we think is

19:21

most important. We've never answered whether a

19:23

president can do that. Happily, it's never

19:25

been presented to us. And

19:27

if the doctrine of immunity remains in place,

19:29

that's likely to remain the case for

19:32

those very issues. As Fitzgerald, I think

19:34

very powerfully emphasized, the real concern here is,

19:36

is there going to be bold and fearless

19:38

action? Is the president going to have to

19:40

make a controversial decision where political opponents are

19:43

going to come after him the minute he

19:45

leaves office? Again, a fascinating exchange,

19:47

Kim, and I think a couple of things are

19:49

interesting here. One is that this is the sort

19:51

of question that gets opened up here that the

19:53

Supreme Court in Gorsuch suggests really would not have

19:56

to decide on

19:58

and be drawn into. having to make

20:00

decisions on this and knowing some of the

20:02

justices, I'm almost certain that they

20:05

would not rather be drawn into this

20:07

question of presidential immunity in the middle

20:09

of a presidential campaign either. But that's

20:11

what's happened here because of the decision

20:14

to use the law to prosecute Trump

20:16

to try to disqualify him from the

20:18

White House. And so the Supreme Court

20:20

has been drawn into this politically, inevitably.

20:23

And I think it had to take

20:25

this case once the question was raised

20:27

because they didn't accept the appeal from

20:29

the DC Circuit, then the DC Circuit opinion,

20:31

which I think was one of the worst

20:34

that I've seen from that august body, would

20:36

have stood. And so the Supreme

20:38

Court was, I think, obliged to hear

20:41

the appeal. Now, of course, the people

20:43

who want to prosecute Trump are saying,

20:45

oh my God, they're actually considering the

20:47

merits of this. How could they possibly

20:49

do this? And the Supreme

20:51

Court is in the tank for Trump.

20:54

Actually, they're not. They're in the tank

20:56

for the Constitution, in my view, and

20:58

considering this question, which has enormous ramifications

21:00

for the future of the presidency. Yeah, I was

21:02

grinning throughout that entire exchange because it was

21:04

a classic case of lawyers, whether on the

21:07

bench or out there, signaling to the nation

21:09

how they feel that things. Of course, it's

21:11

just like happily, we've never had to deal

21:13

with this issue. And then the

21:16

other lawyer, the sower, was like, well, guess

21:18

what? Give us immunity and you won't have

21:20

to. But yeah, this

21:22

is where we are right now. And

21:24

when you hear that exchange, I feel

21:27

sympathy for the Supreme Court because this

21:29

is not the only case that they

21:31

have landed in this situation. What we

21:33

have are these partisan theories I mentioned

21:35

out there, people engaging in unprecedented acts.

21:37

And you go back and you almost

21:39

want to give a little bit of

21:41

thanks to Gerald Ford for that pardon

21:43

he gave to Nixon because he

21:45

spared the country exactly this kind of

21:47

debate all those years ago. He did

21:49

it at great political cost, but it

21:51

was a sacrifice for the nation in

21:53

doing it. Instead, now we've got prosecutors

21:56

going here. Look at all of the

21:58

cases the Supreme Court has had to

22:00

deal with. deal with unexpectedly. They

22:02

recently had to issue the decision about the

22:05

Colorado ballot and the stripping by

22:07

the Colorado Supreme Court of Trump's

22:09

name from it, this whole new

22:11

unprecedented idea that somehow a court

22:13

can unilaterally decide whether or not

22:15

someone has engaged in insurrection and

22:17

just removed them from the ballot.

22:19

Did the Supreme Court want to take that

22:22

case and deal with that? No, but to

22:24

leave it stand would have created this potential

22:26

patchwork of ballots across the nation. So

22:29

for all of those on the left who

22:31

keep complaining about the emergency docket and the

22:33

shadow docket and the court's decision to take

22:35

on these issues, the court's the only grown

22:37

up in the room right now trying to

22:40

keep all the little political players in line

22:42

who are breaking standards and norms right and

22:44

left. Another argument that Dreeben, the

22:46

government's counsel made is that, well, you

22:48

don't have to worry about future prosecutions

22:51

for presidents because the president can rely

22:53

on the legal advice of the Office

22:55

of Legal Counsel at the Justice Department.

22:58

And Justice Kavanaugh raised the question of what

23:00

about drone strikes, for example. And

23:02

Dreeben said, well, OLC, the Office of Legal

23:04

Counsel had ruled on this. They said a

23:06

murder statute did not apply because of presidential

23:08

power. But of course, that wouldn't stop a

23:11

prosecutor somewhere from saying,

23:14

oh, I disagree with the OLC opinion.

23:16

It does apply. And I think one of

23:18

the things that the people who are

23:20

so hellbent on using the law to

23:22

prosecute Trump, what they miss is

23:24

that if that door is opened, as it

23:27

has been here, and if a president has

23:29

no immunity, as the government now argues, that's

23:31

going to be used against future presidents. And

23:33

I can tell you, I mean, well, you

23:36

can see some prosecutor out there saying, well,

23:38

the Supreme Court ruled that

23:40

Joe Biden's forgiveness of student loans was

23:42

unconstitutional. And then he turned around and

23:45

he did it again. We

23:47

think that's a violation of, you know, pick

23:49

your statute, Kyle. And I think the Democrats

23:51

are missing that. Don't forget that President Trump

23:54

has said, I think the phrase was that

23:56

Biden is ripe for indictment was his words.

23:58

And he is the... a front-runner if

24:00

you believe the polls to be the next president of

24:03

the United States. I think what the Supreme Court

24:05

is going to do here is going to be

24:08

fairly narrow on the law and say

24:10

that there is some kind of official

24:12

conduct by the president that cannot be

24:15

prosecuted after he leaves office. So he

24:17

will have absolute immunity for some actions

24:20

and that Nixon v. Fitzgerald principles apply

24:22

here and then the question is to

24:24

what? Right. What is the president's

24:27

opinion on what is drawn and what is official and what is

24:29

non-official conduct?

24:32

But there are so many hypotheticals that have been floating around.

24:36

Justice Elena Kagan asked one in the argument today,

24:38

what if the president sells nuclear secrets

24:41

and Trump's defense attorney said, well, I mean, I don't know. It's

24:45

hard to answer that hypothetical. It depends how it's

24:47

structured and so forth. But I think that a

24:49

lot of these hypotheticals are just missing the narrowness

24:51

of what the president is essentially

24:53

going to do here. And then

24:55

we're going to get some lower court action and

24:57

see what in this indictment of Donald Trump specifically

25:00

can meet that standard of official conduct

25:02

and what does it. I think, Kim,

25:04

very closely to what Kyle thinks, that

25:06

the court is going to say that

25:09

the president does have some absolute immunity

25:11

from criminal prosecution for some

25:13

actions. And I don't know

25:15

that the court will itself define what those actions

25:17

are. But I think that probably they may very

25:20

well remanded back to the

25:22

trial judge to make that judgment and

25:24

have fact finding on that. And that

25:27

might be the best thing for the

25:29

office of the presidency. But just

25:31

one point here about the press, unless

25:34

you read our pages, you would not

25:36

know that these arguments were even going

25:38

to be made at the Supreme Court

25:40

because the press court had just assumed

25:42

from the beginning that immunity was impossible

25:44

for Trump because, well, he's up

25:47

and not thinking about the presidency. And so you've

25:49

got the press here kind of slapping their head

25:51

going, oh, my God, I can't

25:53

believe this question is going to be asked.

25:55

But if you knew anything about Supreme Court

25:57

precedent and you had Regard for this.

26:00

Separation of Powers. He would have said yeah,

26:02

this is what the Supreme Court is gonna

26:04

consider. Get the bubble that people are living

26:06

in right now. Is quite extraordinary. You

26:08

mentioned earlier that you didn't think

26:10

that Democrats were contemplating what could

26:12

happen, for instance, to a retired

26:14

President biden down the road and

26:17

part it's because they, along with

26:19

the media are living in their

26:21

own little echo chamber where Donald

26:23

Trump is a one of a

26:25

kind of. Evil threat to

26:27

the contrary. Nothing like this could ever

26:29

happen again and some when you actually

26:31

have very smart lawyers and justice on

26:34

the bench posed for some of these

26:36

questions and ask. These hard questions,

26:38

They just. Seem astounded that anyone would

26:40

even go there. Will, of course it's

26:43

that's what the courts a job is

26:45

to ask tough questions without fear or

26:47

favor and without caring. Cool. Exactly the

26:49

issue is about with their political affiliation

26:51

is but rather the offices. The separation.

26:54

Of Power and the future of the

26:56

country are ever going to leave of

26:58

absence that today via Atomic Watch podcast

27:00

crew is here every day. I'm Potomac

27:03

Watch and we really enjoy doing these

27:05

and we hope you enjoy listening to

27:07

them. Thank you for listening. Will have

27:10

more on Donald Trump's legal travails and

27:12

other issues. Everyday. Here and

27:14

Potomac watch.