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Plus is central plan only. Separate registration required. See

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Walmart Plus terms and conditions. A

0:32

special note. We recorded this episode

0:34

before the attempted assassination of Donald

0:36

Trump. We discussed political violence

0:38

in the episode because the Supreme Court

0:40

itself brought it up, but remind

0:43

our listeners that we both condemn political

0:45

violence, period. So

0:49

it is Friday, July 12th

0:51

at about noon. And, you

0:53

know, we took our eye off the ball for

0:55

like a couple of months and things went crazy.

0:57

So what are we going to talk about today?

1:00

Well, I thought we'd talk about maybe one

1:02

of the most important cases of the Supreme

1:04

Court term. Let's do it. All right.

1:06

So let me start at a different historical point.

1:10

On May 1st, 2011, a

1:12

covert U.S. military operation shot

1:15

and killed Osama bin Laden

1:17

in Abbottabad, Pakistan. And

1:19

the raid was approved by President Obama. And

1:23

Obama's approval was necessary because the

1:25

president of the United States is,

1:28

by the terms of the Constitution, the commander

1:30

in chief of the armed forces. And

1:33

the presidentially approved killing of bin

1:36

Laden was carried out by the

1:38

Naval Special Warfare Development Group. It's

1:41

also known as SEAL Team Six, a

1:43

group of Navy SEALs that carries out

1:45

some of the most risky American military

1:47

missions. Now, Obama's

1:49

decision to send in a Navy SEAL team

1:52

to kill bin Laden was

1:54

a decision by the president to target

1:56

the head of a terrorist organization responsible

1:58

for the 9.0. and 11 attacks

2:00

and an ongoing threat to

2:02

American national security. But

2:05

what if a president acting

2:08

as commander in chief ordered

2:10

SEAL Team Six to shoot and

2:12

kill his political opponent

2:15

in order to eliminate his rival, not

2:17

to further national interests? Could

2:20

such a president be criminally prosecuted after

2:22

he left office? This

2:24

hypothetical has come up not just

2:26

once, but twice. Once

2:29

by a federal appeals court in Washington,

2:31

D.C., and then by the justices of

2:34

the United States Supreme Court. And

2:36

this crazy scenario cuts right to the center

2:39

of the Supreme Court's decision in a case

2:41

decided on July 1st. What

2:44

if President Donald Trump had ordered

2:46

SEAL Team Six to murder candidate

2:49

Joe Biden? And

2:51

what if Trump were to be reelected

2:53

in November and ordered the assassination of

2:55

his next political rival? Could

2:57

Trump be prosecuted? Or does

3:00

the Constitution say no? Time

3:02

to find out. Let's do it. This

3:23

is what Roman Mars can learn about con

3:25

law, an ongoing series of indeterminate length and very

3:27

sporadic release, although it's going to get much

3:29

more regular from here on out. Or

3:32

we look at our Supreme Court's creation

3:34

of a law-free zone around the president

3:36

and use it to examine our Constitution

3:38

like we never have before. Our music

3:40

is from Doomtree Records, our professor and

3:42

neighbor is Elizabeth Joe, and I'm your

3:44

fellow student and host, Roman Mars. Time

3:54

for a quick break to talk about McDonald's. Mornings

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Price and participation may vary, cannot be

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combined with any other offer or combo

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meal, single item at regular price. Okay,

4:17

so Roman, in order to understand the immunity

4:20

case, I think we should review some important

4:22

background, all right? Yeah, it's been a minute.

4:24

Yeah, it's been a little while. So first,

4:27

there's a legal background. The Supreme

4:29

Court hasn't decided that many issues about

4:31

presidential immunity. The issue just hasn't come

4:33

up that much. But we

4:35

do know that a sitting president can

4:37

be sued in a civil case for

4:40

things that the president did before the

4:42

president took office. And that's because

4:44

in 1997, the Supreme Court

4:46

decided that President Clinton could be

4:48

forced to defend himself in

4:51

a lawsuit brought by Paula Jones. And

4:53

that lawsuit alleged that Clinton had sexually

4:55

harassed Jones during the time he was

4:58

governor of Arkansas, not while

5:00

he was president. And

5:02

second, we also know that a

5:04

sitting president cannot be sued in

5:06

a civil case for acts that

5:08

are part of the president's official

5:10

duties as president. And

5:13

that's because the Supreme Court decided in 1982

5:15

that an Air Force

5:17

analyst, Ernie Fitzgerald, could not

5:19

sue former President Nixon for

5:21

allegedly ordering his firing. Now,

5:23

Fitzgerald had become famous for

5:25

publicly calling out the Pentagon

5:27

for wasteful spending. Why

5:30

not? Well, that's because the president, according

5:32

to the court, is constitutionally in charge

5:34

of the Air Force and is ultimately

5:36

responsible for how it is organized. And

5:39

Fitzgerald losing his position, whether

5:42

or not it was done legally, falls

5:44

under the kinds of actions a president

5:46

can take as the constitutional head of

5:48

the executive branch. Okay. The

5:51

crucial nature of these cases is that they

5:53

lead to different results because of the kind

5:55

of conduct we're talking about. Was the president

5:58

acting as president? In

6:00

the Fitzgerald case, the Supreme Court made

6:02

it clear that its main concern was

6:04

protecting the president so the president could

6:07

fully perform his or her duties without

6:09

being afraid of being sued every time

6:11

there was a controversial decision. And

6:14

that's why Nixon could not be sued at

6:17

all for his conduct as president of the

6:19

United States. He

6:21

and every other president can rely

6:23

on what's called absolute immunity. Now

6:26

in the Nixon case, the Supreme Court said that

6:29

so long as the disputed presidential

6:31

conduct was within what's called the

6:34

outer perimeter of the

6:36

president's official responsibilities, no

6:38

lawsuit is permitted at all. So

6:42

keep in mind that the Nixon and

6:44

Clinton cases focused on civil lawsuits. And

6:47

until this year, the Supreme Court hadn't

6:49

decided a case about the potential criminal

6:51

liability of a former president. Because

6:54

we haven't had a criminal president yet. Yeah,

6:56

we just never had occasion for him. So

6:59

now let's turn to the other important

7:01

background. What's happened in the federal criminal

7:04

election interference case against Donald Trump? Okay.

7:06

So on August 1st of last year,

7:08

a federal grand jury indicted Trump for

7:10

his actions after he lost the 2020

7:12

election and then tried to overturn the

7:15

results of the legitimate election that sent

7:17

Biden to the White House. Now

7:20

the indictment in the federal case discusses

7:23

sort of four basic types of

7:25

conduct that Trump allegedly engaged in.

7:27

So first is that Trump and

7:29

his allies tried to pressure state

7:31

legislators and electors to change

7:33

the electoral college votes and to send

7:35

in a slate of fake electors for

7:37

the official certification. Second,

7:40

the indictment also charges Trump with

7:43

trying to pressure the Justice

7:45

Department to conduct sham election investigations.

7:49

Third, Trump and his allies tried

7:51

to threaten and pressure Vice President

7:53

Pence into changing the election results.

7:55

Remember the vice president has an

7:57

official role in certifying the votes

7:59

of the election. Electoral College. And

8:02

then finally, the indictment charges Trump

8:04

with tweeting and talking to and

8:07

encouraging the crowd on January 6th,

8:09

right before the riot at the Capitol occurred.

8:13

Now, Trump argued to the federal

8:15

judge in his case, Judge Tanya

8:17

Chutkin, that he was absolutely immune

8:19

from criminal charges. And

8:22

this isn't an argument, right, that Trump didn't

8:24

cause his followers to attack the Capitol. It's

8:26

not about his First Amendment rights or anything

8:28

like that. Instead, it's an

8:31

argument that says, no matter what

8:33

I did, I can't be

8:35

criminally prosecuted because I was

8:37

acting as president when these

8:39

events happened. And

8:42

Judge Chutkin, the federal district court judge,

8:44

ruled against Trump and decided that there

8:46

was no immunity for Trump at all

8:48

in his case. And

8:51

then Trump appealed that decision to the appeals

8:53

court in Washington. And it was during oral

8:55

argument that the first time we hear about

8:57

this SEAL Team Six hypothetical,

8:59

right, in which cases his lawyer

9:02

actually didn't provide a very clear

9:04

answer, very disturbing. But

9:07

then in February of this year, the appeals

9:09

court in a unanimous decision decided against Trump

9:11

also. They decided that a

9:13

former president is a citizen

9:16

and no longer has any special immunity.

9:19

So it was this decision that Trump then appealed

9:21

to the Supreme Court. The court heard oral argument

9:23

in Trump versus the United States on

9:25

April 25th. Now

9:28

the SEAL Team Six hypothetical came up

9:30

again before the Supreme Court too. And

9:33

while we were waiting for the Supreme Court

9:35

to finally decide what it was going to

9:37

say in Trump's case, on May

9:39

30th, a New York jury convicted Trump of

9:42

34 felony counts for falsifying

9:44

business records. All of this was related to

9:46

the hush money payments made to Stormy Daniels

9:48

in 2016. And

9:51

so Trump, while he was waiting for the federal

9:53

case, became the first American president to be convicted

9:55

of a crime in the state case. But

9:58

the Supreme Court didn't issue its own decision. until

10:00

July 1st, and that's troubling for

10:03

its own reasons. But now I think we can

10:05

talk about the case. It's a

10:07

very important case in constitutional law. It's

10:10

really troubling, and unfortunately, it's also

10:12

really confusing. But the short answer

10:14

is it's a win for the president, and

10:16

most importantly, it's a win for Trump

10:18

personally. So we can try to break it down,

10:20

okay? Okay. All right, so

10:22

the court splits along ideological lines. The

10:25

three liberal justices, Sotomayor,

10:27

Kagan and Jackson, dissent. And

10:29

then the three Trump appointees, plus Alito,

10:31

Thomas, and the chief justice, or

10:33

in the majority. And the chief,

10:35

Chief Justice Roberts, writes the majority

10:37

opinion. Now, on the

10:40

surface, the majority opinion in the immunity

10:42

case introduces an analysis I think is

10:44

pretty straightforward, and some of it's not

10:46

controversial. Now,

10:48

the Supreme Court establishes three ways we

10:50

can classify a president's conduct. I was

10:52

thinking of a way that we could

10:55

imagine their analysis, and here's my idea.

10:57

Think of a bull's eye with a

10:59

target, a series of concentric circles that

11:01

get smaller as they approach the center. So

11:04

at the outermost edge of our circle

11:06

is unofficial conduct that a president engages

11:08

in. So we can call this like

11:11

category three, right? Mm-hmm. So

11:13

unofficial conduct is not protected by

11:15

any immunity. So a former

11:17

president can be criminally prosecuted for

11:20

unofficial conduct. That

11:22

conclusion in this opinion is not very

11:24

controversial. Just like a president

11:27

can be civilly sued for unofficial conduct,

11:29

so too can a president be prosecuted for it. So

11:31

I don't think anybody would disagree with that. Okay.

11:34

No surprise. Now, at

11:36

the very center of our target, the bull's eye,

11:38

is presidential conduct that the

11:41

court calls conclusive and preclusive.

11:44

This is another way of saying that

11:46

the Constitution gives the president some powers

11:48

that are only for the president. Congress

11:51

doesn't share those powers, and Congress

11:53

can't interfere with those powers either.

11:56

Now, one form of interference, believe it or not,

11:59

would be a... if Congress passed a criminal

12:01

law, even if it applies to everybody, not

12:03

just the president, and having

12:05

that law apply to presidential conduct. So

12:09

when we're talking about the

12:11

president's so-called conclusive and preclusive

12:13

constitutional powers, the court

12:16

in the Trump case says

12:18

the president has absolute immunity

12:20

from criminal prosecution. So

12:22

that's the bull's eye. Let's call that category

12:24

one, right? That's the center. Okay. So

12:27

the Supreme Court has decided just in a

12:29

couple of subject areas that the constitution gives

12:32

the president powers and

12:34

only the president alone that Congress can

12:36

interfere with. So one

12:38

example would be the ability to

12:40

recognize foreign nations. Only

12:42

the president's allowed to do that and

12:44

Congress can't disagree with the president and

12:47

can't sort of legislate around the president's

12:49

decisions. Another one

12:51

is the president's pardon power. That's

12:54

also absolute. Congress can't tell the

12:56

president how to issue pardons. So

12:59

that view too, that there's some

13:01

limited core presidential conduct that can't

13:03

be criminally charged is another conclusion,

13:05

at least if we're not

13:08

talking about Trump in the abstract, that some

13:10

serious people could agree with. So

13:12

that's the straightforward part. We've

13:15

talked about the center and the outer limits of

13:17

our target. So what about in between? Well

13:20

here, the court says that

13:22

there is a presumption of

13:25

immunity for presidential conduct that

13:27

falls within the outer perimeter

13:29

of his official responsibility. Now

13:32

this is category two, right? That's

13:34

with our middle concentric circle. So

13:37

that outer perimeter phrase is just lifted

13:39

from Ernie Fitzgerald's case. Of

13:41

course, that was about civil lawsuits, but now the

13:43

court is using that phrase in this criminal context.

13:46

So this presumption for Trump means

13:48

that even official conduct that isn't

13:50

part of that limited core set

13:53

of powers could also

13:55

be immune from criminal prosecution. Now

13:58

the only way the government can get

14:00

around this is if it can show,

14:02

in the court's words, that

14:04

prosecuting a former president would pose

14:07

no dangers of intrusions on the

14:09

authority and functions of the executive

14:11

branch. Easy test, right? So,

14:16

right, it's very much a new

14:18

standard within a series of categories

14:21

that the court introduces here. But

14:23

anyway, that's the setup. In the case,

14:26

we now have three categories of presidential

14:28

conduct. Category one

14:30

in the center, core, conclusive,

14:32

and preclusive official power that

14:34

gets absolute immunity. No

14:36

criminal prosecution is possible. The

14:39

outside, unofficial conduct. That receives no

14:41

immunity at all, and so a

14:43

president can be criminally prosecuted. In

14:46

the middle is official conduct that

14:48

doesn't receive absolute immunity, but nevertheless,

14:50

there is a presumption of immunity

14:52

that the government may or may

14:55

not have a hard time overcoming.

14:57

Got it. But there is more surprising

15:00

news in the opinion, right? Okay.

15:02

So, remember, the Supreme Court is trying to issue

15:04

an opinion, at least in its view, that's going

15:07

to guide lower courts, not

15:09

just for Trump's case, but for

15:11

future presidents who might theoretically exist

15:13

and also engage in crimes. And

15:16

in Trump's decision, the Supreme Court

15:18

says that when we're trying to

15:20

distinguish unofficial, no immunity

15:22

from official, at least a presumption

15:24

of immunity conduct, courts

15:27

may not inquire into

15:30

the president's motives. So,

15:32

Roman, let's think about how this might work. What

15:36

if, let's say, a hypothetical

15:38

president offered military aid to

15:40

a foreign nation and wasn't

15:44

indirect about it, but just said, hey, I

15:46

want to get political dirt on my arrival,

15:49

and it's just for my own reasons. So,

15:52

is offering military aid official, do you

15:54

think? Offering military aid

15:56

is official. Right. And

15:59

we would normally... be a little

16:01

upset with the motive, but if you

16:03

can't inquire into the motive, then

16:05

it really just is about the official conduct

16:07

of giving military aid. Pretty

16:10

disturbing, right? It's extremely disturbing. We

16:13

can't look at the motive. The court says

16:15

under this new analysis that they introduce, no

16:18

matter how corrupt it might seem, a

16:21

court cannot consider the president's motives. We're

16:23

only looking at the conduct itself. Even

16:26

if that would be relevant in proving

16:28

a case in any other kind of

16:31

ordinary criminal prosecution. Yeah, yeah. So that's

16:33

pretty bad. And then it gets

16:35

even worse. The majority decides

16:37

that Trump is absolutely

16:39

or presumptively immune for all

16:41

official acts. And that means

16:44

he can't be criminally charged with these acts.

16:47

But the majority also then goes further. They

16:49

say, look, that's not enough to protect the

16:51

president. What we're going to

16:53

do is say that the government is

16:55

forbidden from relying on official conduct as

16:57

evidence in a prosecution for other crimes.

17:00

So let's break down what that means.

17:02

So here's an example. So Roman, let's

17:04

say that the president takes

17:06

a bribe in exchange for

17:08

some official act. So,

17:10

you know, off the top of your head,

17:12

does bribery sound like a presidential duty? Bribery

17:15

does not sound like a presidential duty at all.

17:17

Yeah, I would agree with you. In fact, it's

17:19

one of the reasons you can impeach a president.

17:21

Exactly. But after

17:24

this decision, the president is

17:26

probably effectively immune because

17:29

in order to prosecute a

17:31

case for bribery, a bribery

17:33

case against a former president,

17:36

the government would probably want to

17:38

rely on evidence of official acts,

17:40

let's say conversations the president has had

17:42

with his or her advisors. But

17:45

the court says, nope, that's not

17:47

allowed. The government can rely on

17:49

public records, but not

17:51

on any testimony or private records that

17:54

relate to official conduct of the president

17:56

of the United States. So

17:58

this is a further extension. of

18:00

immunity for Trump. So

18:03

these parts altogether make up the

18:05

basic analysis of Trump versus the

18:07

United States. That there is at

18:10

least presumptive and sometimes absolute immunity

18:12

for criminal charges, for official acts

18:14

by the president, and no immunity

18:16

for unofficial acts. Courts

18:18

can't look into the motive for official

18:20

acts, even if we can all see

18:23

plain as day that they're manifestly corrupt.

18:25

And the government can't rely on

18:28

evidence of official acts, even to

18:30

prosecute charges for other

18:32

crimes, totally different crimes. So,

18:35

so far what I've described to you is

18:37

actually the easy part. There are really two

18:40

big problems in the opinion we haven't talked

18:42

about yet. Oh my God. So

18:45

here's the first problem. How

18:47

do you tell one category from the other?

18:50

The consequences are enormous, right? So let's go

18:52

back to like the conduct that's charged in

18:54

the federal indictment. So I wanted to get

18:56

your take on this. So remember there's four

18:59

kinds of conduct we've talked about that Trump

19:01

is accused of. So

19:03

let's start out with Trump pressuring

19:05

the Justice Department to start a

19:07

fake election fraud investigation. What's

19:10

your take on that? Does that sound like

19:12

official or unofficial conduct? Okay,

19:15

so, this

19:18

is tough. I feel like this

19:21

could go into the realm of official just

19:23

because the president does, is the

19:26

executive who does have control over the Justice

19:28

Department and setting

19:30

priorities is what that is part

19:32

of that job. Yeah, and

19:35

that sounds about right, right? Because it's part

19:37

of what he does. He's in charge of

19:39

the executive branch, but then the actual facts

19:41

make us sort of uncomfortable. Right, but if

19:43

you eliminate motive or eliminate like the fact,

19:45

the idea of like, we know it's false.

19:48

Every right thinking person knows that all

19:50

this is false, but I

19:52

don't know how you can get to the state of

19:54

mind of a president who doesn't know those things or

19:56

whatever who is

19:59

pretending to know. know that it's false just to

20:01

have political cover. But still, this

20:04

seems like within the realm of

20:06

setting a priority that he

20:08

thinks is important. Okay. So

20:10

what about pressuring Pence, pressuring the

20:12

vice president to change the results

20:14

on January 6th? Sound like official

20:17

or unofficial conduct? Okay.

20:20

So the

20:22

president can tell the vice president

20:24

what to do. I imagine that's pretty normal. That's

20:27

official power. I think

20:29

there's a reason why this is Pence's

20:32

job and not the president's job. And

20:34

so therefore getting in the way of

20:36

that somehow smacks

20:39

a little more unofficial to me. Yeah.

20:41

Because it's not exactly the president's job to

20:43

count the votes, right? Exactly. Especially

20:46

the loser. Exactly. Like there's a

20:48

reason why constitutionally that is the vice president's

20:50

job. And so that seems

20:52

to me like that's something that would be

20:54

outside official conduct. And

20:57

that intuitively sounds right to me too. Okay.

20:59

What about Trump pressuring state officials

21:01

to change the electoral votes? So

21:04

this seems like the whole separation of powers

21:06

is to avoid this type of thing. Like

21:09

that the president can

21:11

make phone calls, do things a little bit, but there's

21:14

like, there's, this is not allowed.

21:16

Yeah. And it's also about the states, right? Exactly. And

21:19

it seems like what does he have to do with state elections? I mean, he doesn't,

21:21

that's not his official job, of course, but I just, you

21:24

can imagine a president calling up a

21:26

governor, calling up state

21:28

legislators to do something as a,

21:31

you know, as a favor or to like be

21:33

part of the party or do something. But that

21:36

seems normal, but this version of

21:38

it seems abnormal. Right.

21:41

And then finally, what about all the

21:43

tweeting where he is encouraging his supporters

21:45

to come to the Capitol, support him,

21:48

march up to the Capitol? How does that sound? Again,

21:53

tweeting out an agenda

21:55

or presenting an agenda or giving a

21:57

speech does seem like that's what, you

21:59

know, the job like a fireside

22:01

chat seems like that was within Roosevelt's

22:06

purview. I wouldn't say that he

22:08

was off the clock when he was doing that.

22:12

But it's the encouraging of a

22:14

riot, which seems unofficial. Yeah,

22:17

we keep coming back to the specifics of Trump

22:19

and finding that we really don't want

22:21

this to be part of what's protected, right? Not

22:23

at all. Yeah. Well,

22:25

here's what the court said. So when

22:27

it comes to pressuring the Justice Department,

22:29

the court actually agrees with you that

22:32

this seems like the kind of thing

22:34

that presidents do. They're in charge of

22:36

the Justice Department. And in an abstract

22:38

way, we would say that, of course,

22:40

any president is going

22:42

to be involved in investigation and prosecution

22:44

of crimes and thinking about his or

22:46

her own Justice Department and how they

22:48

ought to go about that in the

22:50

abstract, right? But the

22:52

problem is, of course, that Trump was trying

22:55

to use his own Justice Department for his

22:57

own personal reasons, to

22:59

use the Justice Department to try

23:01

and cook up a fake election

23:03

fraud investigation. But the

23:06

court doesn't want to look at that

23:08

at all and instead says, this is

23:10

actually core presidential conduct, meaning

23:13

that his power here is

23:15

using that phrase conclusive and

23:17

preclusive. In other words,

23:19

when it came to Trump trying

23:21

to pressure his own Justice Department

23:23

in ways that most of us

23:25

find pretty abhorrent, the court says,

23:27

sorry, he receives absolute immunity. Okay.

23:31

Then pressuring Pence. Well,

23:33

just like you said, the court says, look, the

23:35

president and the vice president are supposed to talk

23:37

to each other a lot as part of their

23:39

official duties. And when they talk

23:41

about their official duties, that's official conduct. But

23:44

on the other hand, the court says when Pence

23:47

is presiding over the certification of the votes, he's

23:49

actually not just the vice president. He has

23:52

the temporary role of the president of the

23:54

Senate, which is different than being the vice

23:56

president of the United States. So

23:58

talking to the. president of the

24:01

Senate at that time, maybe

24:03

it's certainly not core presidential conduct.

24:06

So when Trump talked to Pence,

24:08

this is official conduct, but

24:10

the court says it's presumptively immune rather

24:12

than absolutely immune. And so that means

24:15

when they send the case back to

24:17

Judge Chukin, that's the federal district trial

24:19

court judge, she's going to

24:21

have to hear from the government if

24:23

they can overcome that presumption by saying

24:25

that there's some interference with executive branch

24:27

functions if they prosecute this charge. Of

24:30

course, the court doesn't explain to us

24:33

how exactly Jack Smith and his colleagues

24:35

are going to satisfy the will not

24:37

intrude on executive branch functions standard, but

24:40

they're kicking it to the lower

24:42

court. Especially if you can't investigate official records.

24:44

Yeah, that's going to be hard. And

24:47

as far as pressuring state officials, that's

24:50

a toughie, says the court. I'm actually

24:52

not sure why it is. The court

24:54

says, look, when Trump argues like why he

24:56

was doing this, his argument before

24:59

the Supreme Court was, I was trying to make

25:01

sure that the federal election was

25:03

going in a way with integrity

25:05

and without fraud, even if it was being carried

25:08

out at the state level. And

25:10

the government said, absolutely not. When you're calling up

25:12

people and telling them to put in fake slates

25:14

of electors, that's private conduct. It has nothing to

25:16

do with being president of the United States. But

25:18

the Supreme Court didn't decide. They didn't decide whether

25:20

it was official or unofficial. And they said, well,

25:23

Judge Chukin, we'll have to figure that out. And

25:26

then as far as the tweeting

25:28

and speechifying right before the

25:30

riot, here is really where the court

25:32

gave Trump the benefit of the doubt. Again,

25:35

regarding this conduct, the Supreme Court

25:37

said, well, a whole lot

25:39

of what the president of the United States

25:41

says is likely

25:44

to fall comfortably within the

25:46

outer perimeter of his official

25:48

responsibilities. They don't decide,

25:50

but they leave it to Judge Chukin

25:52

to figure out whether this is official

25:55

or unofficial. So

25:57

as a result, the Supreme Court

25:59

refused. to classify any

26:01

of Trump's actions in the

26:04

election interference case as unofficial.

26:07

So that's pretty important because imagine if

26:09

they did, imagine if they said some

26:11

of this conduct is clearly unofficial. That

26:14

would have given Jack Smith one possible

26:16

path to proceed. He could have said,

26:18

okay, we will drop the charges regarding

26:20

the official conduct and we'll keep the

26:23

criminal case going with the unofficial conduct.

26:26

But the court doesn't do that. They basically leave a lot

26:28

of things up in the air and it's

26:30

gonna be up to the government to try

26:32

to persuade the judge that some of the

26:34

charges relate to unofficial conduct. So

26:37

that's one huge problem in the immunity

26:39

decision. How is the court going to

26:41

figure this out? Me

26:47

and the kids were always messaging. They LOLed, I R

26:49

O F L'd, but then I changed phone and the

26:51

bubbles went green. But where there's a fill, there's a

26:53

way. And I found a way to share what's in

26:55

here. I'm tapping my heart. What's up. The

26:58

place to safely send messages between

27:00

different devices. Message privately with everyone. All

27:05

right, so what happens next in this case? In

27:07

the federal criminal case, Judge Checkin has to

27:09

decide whether or not to have kind of

27:11

like an evidentiary hearing, a mini trial about

27:14

the nature of these charges. Is

27:17

Trump going to receive some kind of immunity or not?

27:20

I think everyone agrees that there is

27:22

now zero chance of an actual trial

27:24

before the election. No chance. And

27:26

that of course is a lot has to do

27:28

with the Supreme Court itself. They

27:31

heard oral argument in April, but then

27:33

didn't issue the case until July 1st.

27:36

And that is also a choice because

27:38

in the Nixon Tapes case, the

27:41

court heard argument and about 16 days

27:44

later, they issued an opinion. So

27:46

the court is certainly capable of having

27:48

our rapid opinion come out. They

27:50

decided not to. And of course, every delay in

27:52

a case like this is a win for Trump.

27:55

No matter what the opinion would have said. But

27:58

that's not the only criminal case against. Trump.

28:00

There's the Georgia criminal case against

28:02

Trump for state election interference. Then

28:05

there's the Florida classified materials case

28:07

against Trump. Then there's the

28:09

New York State Hushman case. Even

28:11

though Trump has already been convicted, the case

28:13

isn't over because he hasn't been sentenced yet.

28:16

And after the Supreme Court issued its immunity

28:18

decision, Trump has already argued

28:20

that his New York conviction should get tossed

28:23

because why? I

28:25

am totally immune from being

28:27

convicted in court. And

28:30

so because it's a

28:32

non-frivolous argument, the judge in

28:34

that case has actually postponed sentencing

28:37

in the New York case until at least

28:39

September. But in each of

28:41

these cases, the judges are going

28:43

to have to grapple with are

28:45

these cases allowed to proceed based

28:47

on how to characterize the conduct

28:49

in question? So

28:52

that's problem one. Problem

28:55

two is a totally different kind of problem. Why did the

28:58

Supreme Court

29:00

decide the case this way? Because

29:02

even the court acknowledges that there are

29:05

two totally different dangers in this situation.

29:08

One danger is about allowing the case to

29:10

go forward. Because if you allow the case

29:12

to go forward, the court says it is

29:14

afraid that the fear

29:17

of prosecution will keep presidents from

29:19

behaving fearlessly in their duties. We won't have a

29:22

robust president, we'll have a fearful president who's always

29:24

worried that he or she will be prosecuted in

29:26

the future. Sounds good to me. But

29:28

on the other side is another fear.

29:30

And that fear is that if we recognize

29:32

a very broad form of immunity, well, what's

29:35

the incentive for any president to behave lawfully?

29:37

Like why does it matter how I behave

29:39

if I'm not going to get prosecuted

29:41

ever? So the problem

29:43

in the immunity decision is that the Supreme

29:46

Court decides that it's obvious

29:48

to them that the bigger danger is

29:50

having a president who's going to be

29:52

what they call chilled from taking bold

29:54

and unhesitating action. But that's

29:56

kind of the problem. The Supreme Court just

29:58

decides they never never really fully

30:00

explained to us why

30:03

one fear should outweigh the other

30:05

fear. In other words,

30:07

what's worse, having a lawless president

30:09

or the possibility of revenge prosecutions

30:11

or former presidents? The court

30:13

just says, well, it's obvious to us, but they don't

30:16

really tell us how they made that decision. And

30:19

then the decision leaves us with very

30:21

little comfort because the chief justice says,

30:23

well, the court cannot afford to fixate

30:26

on present exigencies. That's

30:28

just a fancy way of saying we're not

30:30

really concerned with Trump in particular. Well,

30:33

we are, I am concerned with Trump in

30:35

particular and so are you, I think. I

30:37

think so. Yeah. So

30:39

that's fair to say. We do need to fixate on

30:42

Trump, but the court is really acting as if they

30:44

are kind of ruling for eternity without looking at the

30:46

former president right in front of them. It's

30:48

not a unanimous opinion. Justice Sotomayor writes

30:51

a dissenting opinion that we can turn to. Justice

30:54

Sotomayor accuses the majority of creating

30:56

what she calls a law-free zone

30:58

around the president. And

31:00

you may have heard of some of the extreme language

31:02

that she used, but she says, what might

31:05

happen? And she gives a series of hypotheticals. So

31:07

here's what she says. Orders

31:09

the Navy's SEAL Team Six to

31:12

assassinate a political rival, immune. Organizes

31:15

a military coup to hold onto

31:17

power, immune. Critics of

31:20

bribe in exchange for a pardon. Immune,

31:22

immune, immune. Now

31:25

what's interesting here is that in the way

31:27

that the Supreme Court issues an opinion, they'll

31:29

go through multiple drafts, especially when there are

31:32

dissents and concurring opinions. So they all have

31:34

a chance to respond to one another. So

31:37

Justice Sotomayor obviously is very upset

31:39

with the consequences of the decision.

31:43

And she has these really terrible hypotheticals, including

31:45

the SEAL Team Six one. And

31:48

in the majority opinion, the

31:50

Chief Justice accused Sotomayor of

31:52

taking a tone of chilling

31:54

doom. But what's

31:56

interesting is he doesn't refute her hypotheticals.

32:00

says, well, of course that's not going to happen,

32:02

or of course there is

32:04

going to be prosecution in those cases. He doesn't

32:06

refute them at all. And

32:09

that's why I think that

32:11

Sotomayor concludes her dissent with

32:14

what she calls a

32:16

fear for our democracy.

32:18

Okay. That's a period.

32:20

Okay. That's a period. I

32:22

mean, we usually try to find something lighthearted,

32:24

I know, in our discussions,

32:26

but this was a hard one to

32:28

do. There's no silver lining in

32:30

this one. It's really rough. Okay. So let

32:33

me try to find at least something

32:36

here. So is

32:38

the fact that the Hush Money case that led to the

32:40

34 convictions was

32:43

for an act that happened before he was

32:45

president, somehow make this,

32:49

sidestep this a little bit? You know, in theory,

32:52

that ought to be the right answer, right? Because

32:54

it has nothing to do with

32:56

the Hush Money case. In fact, all of this happened before he became

32:58

president. Exactly.

33:00

Right? But the problem is that the

33:02

immunity decision gives Trump the ability to

33:06

just start to throw up immunity as a way to delay these cases.

33:09

And if we want to get into the

33:12

weeds a little bit here, what's happened as a result of

33:14

the Trump immunity decision by the Supreme

33:17

Court, Trump is allowed to raise these

33:19

immunity cases. And unlike

33:22

in some ordinary cases,

33:25

immunity is so important. If he

33:27

loses an immunity decision, in other

33:29

words, this conduct is

33:31

immune, no, it's not. He's allowed to

33:33

immediately appeal that decision, which would then

33:36

add another layer of delay.

33:38

So in the New York case, maybe it's

33:40

kind of a loser, but

33:43

for now, all he needs to do is to keep

33:45

the clock running. And every time he does that, it's

33:48

in his favor. But why can't the judge just immediately

33:50

rule because this is before he was

33:54

just interpreted that way and

33:57

expedite it? That seems to me like

33:59

something that... could happen, why is that

34:01

not possible? Oh, because in

34:03

all fairness, because Trump is a criminal defendant,

34:05

when you have these kinds of arguments, you

34:07

have to give both sides the opportunity to

34:10

sort of brief the arguments, perhaps

34:12

argue before the judge. And that, you know,

34:14

that's the kind of typical practice. We wouldn't

34:16

want a system in which any

34:18

judge for any defendant would just say, I already

34:20

decided you lose. Railroad this. Yeah, exactly.

34:24

And that's kind of the problem. I mean,

34:26

in all of these things, are we talking

34:28

about the issue of immunity in the abstract

34:30

or the danger of Trump in the particular?

34:33

And that I think is one of the biggest

34:35

mistakes in the Supreme Court's decision. You

34:37

have a court that's sort of unwilling to confront the

34:39

danger right in front of them. And

34:42

they kind of wanted to treat it as if it were

34:44

a classroom hypothetical. And I say this

34:46

as a teacher, but they're saying this as

34:48

if it were just an interesting abstract problem,

34:50

but it isn't. But even

34:52

as an interesting abstract problem, in

34:55

general, it seems wrong too. Is there a specific kind

34:57

of maybe hypothetical that you can imagine

35:00

that you think that this breakdown

35:04

of official conduct and

35:06

unofficial conduct makes sense,

35:08

like outside of Trump? Well,

35:10

certainly the core and the periphery, right, of

35:12

our target idea. I mean, there, I think

35:15

there's some things that make sense. I think

35:17

that some of the serious discussion around immunity

35:19

is stuff like, let's say

35:21

a president orders a very controversial

35:24

drone strike, right? Do

35:26

we really want to have that president later prosecuted

35:28

for murder? Some people might say yes, but a

35:31

lot of people would say, wow, I'm not sure

35:33

I feel comfortable with that, right? Because these are

35:35

kind of controversial foreign policy

35:37

decisions that presidents have to make.

35:40

So that might be at the core part of

35:42

it, that we think,

35:44

okay, some people will agree a

35:47

president needs some protection here, but

35:50

it's the expansiveness of the immunity. That's a real

35:52

problem. I think you're right. Even in general, in

35:54

the hypothetical, there is so much that appears to

35:56

be protected and the court makes

35:58

it a test that has. to be hashed

36:01

out in every single case in a

36:03

very fact-specific manner. Right. It's not easy.

36:05

And in fact, I guess if

36:08

either one of us were present, maybe it wouldn't

36:10

be so clear what we could get away with.

36:12

And I think the thumb is on the scale

36:14

of, I guess I can get away with it.

36:17

Get away with everything. Especially when you cannot inquire

36:19

into motive or investigate official records to figure that

36:21

stuff out. Like if it's going to be fact-based

36:23

and case by case, why

36:25

hamstring those two investigative

36:28

avenues? Yeah. And what's

36:30

wrong with being somewhat afraid of

36:32

going too far and bringing them

36:34

up? Exactly. Like I

36:36

want our presence a little bit

36:38

afraid. And the whole thing is

36:40

like, this is what the White

36:42

House counsel is for. So like,

36:44

do we just fire all those people? I mean,

36:47

I'm sure Trump doesn't care, but like it's to

36:49

ask lawyers who care about these things, or at

36:51

least, I don't know, care about protecting their client

36:53

to the extent that is this okay or

36:56

not? Isn't that their job? Yeah,

36:58

I think that's exactly right. And the irony

37:00

of course here is until 2024, every

37:03

president theoretically lived with

37:05

the threat of criminal prosecution. And

37:08

so far, it's worked out okay.

37:10

Yeah. Nobody has said that any

37:12

particular president was terrified of criminal

37:14

prosecution, so they weren't a fearless

37:16

president. Totally. That

37:19

is something that is like, for a

37:21

court that is sort of like, like

37:23

completely ensorcelled by the idea of

37:26

history and tradition, can't

37:28

look at the history of the presidency

37:30

and look at that they have not

37:32

had their hands tied by this type

37:34

of fear. It's just sort of beyond

37:36

me. Yeah. And for a court that

37:38

really wants things to be part of

37:40

either the text or history and tradition,

37:43

you know, thinking, I don't know, dobs.

37:48

This is a case where just the

37:50

idea of absolute immunity, presumptive

37:52

immunity, and no immunity, that

37:54

whole analysis is kind of comes out

37:56

of nowhere, right? Yeah. And they feel

37:59

comfortable, completely comfortable. making that choice. Yeah.

38:02

Well, I think Chilling Doom is

38:04

like right on the

38:06

money. Right

38:08

on the money. And unfortunately, now SEAL

38:10

Team Six is part of the canon

38:12

of constitutional law. Yeah. Yeah. How

38:16

many hypotheticals can we throw SEAL Team Six

38:18

into? Just like, yeah. Well,

38:21

despite the results of this decision, it's a real

38:24

pleasure to be back together talking with you. I

38:26

appreciate it. Yeah. That's great. Good to be with

38:28

you again. This

38:33

show is produced by Elizabeth Jo, Isabel

38:35

Angel, and me, Roman Mars. Our executive

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