Legal Docket: Presidential immunity

NICK EICHER, HOST: It’s The World and Everything in It for this 29th day of April, 2024. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.

Last week, the Supreme Court held a special session of oral argument. The court doesn’t typically hear arguments on Thursdays.

But the situation called for it, as the high court’s never faced this before: That is, resolving whether a former president has immunity from criminal prosecution for conduct alleged to involve official acts while in office?

EICHER: Of course this is specifically about former President Donald Trump … and the four criminal charges brought last summer by Special Counsel Jack Smith. All of those charges relate to Smith’s investigation into the January 6 rally and riots at the US Capitol.

But the outcome of this case involves more than Trump. It sets precedent for future presidents.

The case comes to the Supreme Court from the DC Circuit court of appeals … where a three-judge panel decided that Trump is not entitled to presidential immunity.

Here’s an exchange in that appellate panel between Trump lawyer John Sauer and Judge Florence Pan:

FLORENCE PAN: Could a president who ordered Seal Team Six to assassinate a political rival who was not impeached could he be subject to criminal prosecution.

JOHN SAUER: if he were impeached and convicted first.

PAN: So your answer is…no.

SAUER: My answer is a qualified yes. There’s a political process that would have to occur under the structure of our Constitution which would require impeachment and conviction by the Senate.

REICHARD: Some acts are official, some are not. And I think that statement will turn out to be for the Supreme Court the fulcrum on which arguments pivot as to whether immunity attaches or doesn’t.

Here’s how Trump’s attorney Sauer framed the case for the justices:

SAUER: For 234 years of American history, no president was ever prosecuted for his official acts. The Framers of our Constitution viewed an energetic executive as essential to securing liberty.…Every current president will face de facto blackmail and extortion by his political rivals while he is still in office. The implications of the Court's decision here extend far beyond the facts of this case.

EICHER: Sauer harkened to history to ask whether President George W. Bush could have been imprisoned for allegedly lying to Congress to induce war in Iraq, or whether President Barack Obama could be charged with murder for killing Americans abroad with drones. Or whether President Biden might soon be prosecuted for ignoring the law and inviting mass illegal immigration.

SAUER: The answer to all these questions is no. Prosecuting the president for his official acts is an innovation with no foothold in history or tradition and incompatible with our constitutional structure.

REICHARD: The other side says what’s innovative is the Trump team’s argument. For Special Counsel Jack Smith, former deputy Solicitor General Michael Dreeben:

MICHAEL DREEBEN: This Court has never recognized absolute criminal immunity for any public official….delete…The Framers knew too well the dangers of a king who could do no wrong. They therefore devised a system to check abuses of power, especially the use of official power for private gain. Here, the executive branch is enforcing congressional statutes and seeking accountability for Petitioner's alleged misuse of official power to subvert democracy. That is a compelling public interest.

Both sides cite a Supreme Court decision from 1982 called Nixon versus Fitzgerald. That case established that presidents have absolute immunity from civil lawsuits for “acts within the outer perimeter of his official duties.”

You can imagine the many ways that “outer perimeter” of “official duties” might be interpreted.

But it doesn’t answer the question of whether presidents are immune from criminal prosecution.

EICHER: Is it plausible to argue that President Trump on that day was trying to ensure election integrity as part of his official duties?

Or, will the court see him as more in campaign mode, making his actions that day non-official?

Listening to the arguments, you can hear how different justices approach the case. Here’s Justice Ketanji Brown Jackson:

JUSTICE JACKSON: But if there’s no threat of criminal prosecution, what prevents the president from just doing whatever he wants? … I'm trying to understand what the disincentive is from turning the Oval Office into, you know, the seat of criminal activity in this country.

SAUER: I don’t think there’s any allegation of that in this case.

But the justices grappled with line drawing. Justice Elena Kagan listed actual allegations, including this one:

JUSTICE KAGAN: The defendant asks the Arizona house speaker to call the legislature into session to hold a hearing based on their claims of election fraud.

SAUER: absolutely an official act for the president to communicate with state officials on a matter of enormous federal interest and concern.

REICHARD: Sauer going on to say Trump was defending the integrity of the election. Justice Kagan:

JUSTICE KAGAN: Well, attempting to defend the integrity of the election, I mean, that’s the defense. The allegation is that he was attempting to overthrow an election.

But no prosecution without an impeachment and conviction first. Justice Amy Coney Barrett asked about that:

JUSTICE BARRETT: So there are many other people who are subject to impeachment, including the nine sitting on this bench, and I don't think anyone has ever suggested that impeachment would have to be the gateway to criminal prosecution for any of the many other officers subject to impeachment. So why is the president different when the Impeachment Clause doesn’t say so?

SAUER: …the sequence is mandatory only as to the president.

Sauer pointing out that the office of the presidency is unique in our constitutional structure.

The justices spun more hypotheticals … and they weren’t all for the Trump lawyer. Justice Clarence Thomas asked why past presidents engaged in various coups or covert ops like the Bay of Pigs operation in Cuba. No prosecutions.

JUSTICE THOMAS: Why? If you -- if what you're saying is right, it would seem that that would have been ripe for criminal prosecution of someone.

DREEBEN: So, Justice Thomas, I think this is a central question. The reason why there have not been prior criminal prosecutions is that there were not crimes.

EICHER: Argument turned toward another historical event: the pardon of Richard Nixon by his successor Gerald Ford for the Watergate scandal. Wouldn’t that imply that Nixon understood he could face criminal liability if he didn’t accept the pardon? Justice Jackson:

JUSTICE JACKSON: What was up with the pardon for President Nixon? …If everybody thought that presidents couldn't be prosecuted, then what was that about?

But Justice Brett Kavanaugh saw the situation through a different lens:

JUSTICE KAVANAUGH: Very controversial in the moment.

DREEBEN: Yes.

KAVANAUGH: Hugely unpopular, probably why he lost in '76.

DREEBEN: Yes.

KAVANAUGH: Now looked upon as one of the better decisions in presidential history, I think, by most people. If he's thinking about, well, if I grant this pardon to Richard Nixon, could I be investigated myself for obstruction of justice on the theory that I'm interfering with the investigation of Richard Nixon?

REICHARD: Justice Samuel Alito also looked to bigger matters:

JUSTICE ALITO: Now, if an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy? And we can look around the world and find countries where we have seen this process, where the loser gets thrown in jail.

…with Justice Sonia Sotomayor jumping in and asking leading questions of the advocate for the government:

JUSTICE SOTOMAYOR: A stable democratic society needs the good faith of its public officials, correct?

DREEBEN: Absolutely.

SOTOMAYOR: And that good faith assumes that they will follow the law?

DREEBEN: Correct.

And that brings us back around to assumptions, always a risk when adjudicating disputes.

I think Chief Justice John Roberts really underscored that point here:

JUSTICE ROBERTS: The court of appeals below whose decision we’re reviewing, said quote “A former president can be prosecuted for his official acts because the fact of the prosecution means that the former president has allegedly acted in defiance of the laws.”...and that I think is the clearest statement of the court’s holding which is why it concerns me. As I read it, it says simply a former president can be prosecuted because he’s being prosecuted.

Roberts making note of a tautological argument, surprising coming from an esteemed court such as the DC Circuit Court of Appeals.

EICHER: Surprising, too, that Dreeben didn’t really have an answer for the chief, except that we should trust the government and remember that a grand jury has to indict. There’s your safeguard.

REICHARD: But in law school, I learned the adage that a decent lawyer can get a grand jury to indict a ham sandwich.

The same day as this argument, Trump was in New York for trial over charges that he falsified business records.

And he faces more prosecutions in Florida and Georgia.

EICHER: And just last month the Supreme Court unanimously stopped Colorado from kicking Trump off the state ballot using the “insurrection clause” of the 14th Amendment.

As for this case, the charges from Special Counsel Jack Smith? The justices may send the case back to lower court to figure out what acts are and what acts are not “official.” That means further delay.

REICHARD: And delay works in Trump’s favor. It takes several months to prepare for trial.

Early voting starts in the fall.

If the Supreme Court says Trump has immunity, and if he wins in November, he could order the DOJ to drop the case or he could pardon himself.

By the way, the court has never ruled on whether presidents can do that.

And that’s this week’s Legal Docket!

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