Advisory Opinions - Indictment Watch: No Immunity

Episode Date: February 7, 2024

The D.C. Circuit Court of Appeals has unanimously decided that Donald Trump is not immune from prosecution. On today's emergency pod, Sarah and David react to the decision's substance and how the timing affects the election. The Agenda: —Timing is everything —Word of the day: estoppel —Will SCOTUS take the case? —The opinion’s flaws —Whatis a president immune from? —What is an official act? —The parade of horribles argument —Why the Colorado disqualification case is relevant —The New Yorker: Sarah Isgur's Majority Report Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to a special episode of Advisory Opinions. I'm Sarah Isgerd, that's David French, and this episode wasn't supposed to happen. But the DC Circuit came out with their immunity decision, unanimous. Not a lot of surprises in it, but we can't wait to talk about it because we've also got that Colorado Supreme Court oral argument coming up the next day. So we can't squeeze that all into one episode. We just had to do it. So here we can't squeeze that all into one episode. We just had to do it.

So here we are. We're going to do two. David, let's walk through this. We're going to do the timing coming out of this decision because that's actually what matters here. Then we're going to back up and do the substance of the decision itself. Some interesting contradictions sort of built in for me.

And lastly, the New Yorker came out with a profile of the podcast. Well, of you, Sarah, of you. I prefer saying the podcast. It's your illustration and it's a good illustration too. You mean like literally the picture? Well, yeah, the picture. I don't know. I don't know know this whole thing feels very weird to be honest no i thought it was great i i thought it was great but we'll get to it we'll get to it okay so first up remember this is the oral argument where donald trump's lawyer said that uh yeah if a president ordered seal team six to kill his political rival ahead of an election and was not convicted after

being impeached, he could not be criminally prosecuted for that after leaving office. I know all of you will be shocked to hear that the D.C. Circuit did not adopt that reasoning. So it was unanimous. And remember, it was two Democratic appointees, one Republican appointee. And so they just gnawed dog that in a 57-page opinion that we'll walk through the outline of that in a second. But David, shortly after they issued that opinion, they issued an interesting order. I'm going to read the order and then I'll tell everyone what it means. The clerk is directed to withhold issuance of the mandate through February 12th. That's Monday. If within that period, appellant, that's Trump, notifies the clerk in

writing that he has filed an application with the Supreme Court for a stay of the mandate pending the filing of a petition for a writ of certiorari, the clerk is directed to withhold issuance of the mandate pending the court's final disposition of the application the filing of a petition for rehearing or rehearing on bonk will not result in any withholding of the mandate although the grant of rehearing or rehearing on bonk would result in a recall of the mandate if the mandate has already been issued so this is really really weird i'll tell you what it means. So the whole, you know, Trump has two purposes in bringing this immunity case in the first place. One is, sure, he would love full prosecutorial immunity. Right. So he loses at the district court in front of Judge Chukin. Then he goes to the D.C. Circuit. He loses at the D.C. Circuit.

What would be his normal avenues? Well, first, you would apply for the panel to rehear the case, something that's not going to happen. Then you would ask for the entire D.C. Circuit, all of the judges on the D.C. Circuit, to hear the case en banc. That's very, very normal. We've talked about the reasons that you want to hear the case en banc. That's very, very normal. We've talked about the reasons that you want to hear a case en banc before. Even if you want to go to the

Supreme Court, sometimes you're going to ask for rehearing en banc so that you can get that dissent from rehearing en banc, the dissental. And we've talked about which judges have the best dissental rates because it's sort of like it's a separate cert petition, but from a sitting Article III judge. So that's why a lot of folks would always go ask for en banc hearing after a loss like this. That's going to burn time on the clock also. And then you've got 90 days to file cert at the Supreme Court. Basically, already, he can run out the clock to the election. So these three DC circuit judges are trying to prevent that. And what they're saying here is you have until Monday. On Monday, the clerk is going to basically

issue our order from this decision saying that the district judge, the trial judge, Judge Shutkin, can reset the trial date. Anytime. If you want to go to the Supreme Court, you have until Monday to do that, not 90 days. Monday to do that, in which case we'll hold it until the Supreme Court says something one way or the other about whether we should hold it. If you try to go en banc, we're not holding it and your trial's getting set. And in theory, then, if you're curious what would happen, it would start getting really messy. You could try to go en banc and go to the Supreme Court and ask them for an emergency stay to hold that mandate. You could also seek mandamus against the judge, potentially, the trial judge, from holding the trial. You'd have a few procedural things you could do. But settle that aside for a second, David. I have never seen an order like this.

And on the one hand, I hear a lot of people saying Donald Trump should be treated like every other criminal defendant. But then he should be treated like every other criminal defendant. I've never seen someone say that a criminal defendant, but then he should be treated like every other criminal defendant. I've never seen someone say that a criminal defendant basically is not allowed to even try to have a petition for en banc review of a panel decision, according to the panel.

Well, they can try. I mean, they certainly can. They're not blocked from trying. They just don't, they're just not given the benefit of the effort. Okay. But the point of- No, they can get en banc. And if en banc review is granted, of course, that decision is vacated.

And, you know, so they'll get the en banc review. You're just not getting the automatic delay. And this is also not normal. The interlocutory appeal in a criminal case isn't that normal by itself. I mean, this is a highly unusual proceeding to have someone, I can't walk into a criminal case, claim total immunity from prosecution, and have the proceedings halt. Like, that is not something that I can do. Yes, you could if there were an argument, a colorable argument, that you were immune from prosecution. Meaning like, it's not just that it's Donald Trump, for instance. It would be any, you know, a judge, for instance, or a member of the House or Senate

if they're claiming speech and debate clause immunity, something like that. Like, the argument here is not just that, you know, a witness can't take the stand or a piece of evidence should be withheld from the jury. The whole question here is whether, in fact, the trial, whether he's immune from the trial itself, meaning if you hold the trial, you're violating his rights. So, again, you're right that it's unusual in the sense that normally that's not a colorable argument. But when it is a colorable argument, it is absolutely the case then that the trial itself is what violates your rights and therefore you have to answer the question before trial. So for instance, if he moved for en banc review, they don't hold the mandate, they set the

trial, the trial happens, and then there's en banc review, there's a real argument, it's been mooted. Yeah, yeah. Well, you know, one thing, colorable argument is a fun term. I would call it an argument. Interesting. Okay. Well, we're going to get to the substance in a second because I think it's more,

I think there is a colorable argument. It's not the one that the Trump team made. So, okay. Before we move to the substance though, let's just do a little bit more on timing, which is what actually will happen from here. I think that the Trump team will file with the Supreme Court before Monday to stay the mandate. I do not think, for instance, that they will file for certiorari at the Supreme Court. They've got 90 days to do that. I think they, in fact, may ask for the Supreme Court to stay the mandate so that they can move for en banc review, for

instance. Right. That's what I would do, I think. Yeah. I don't think there's much question at all they're going to try to stay the mandate. But, you know, Twitter was acting like this was some huge win and now it's all over and the trial is going to get set and Donald Trump lost. And it's like, no, no, no, no, no, no, no. We're not even we're not even rounding first base yet on where this is. I am still of the opinion that we are lower than 50 percent chance that this trial happens before the election. Yes. And getting lower by the day. Yeah. Every day that passes, it gets lower than 50. It gets lower than lower

than 50%. Okay. So I think they'll ask the Supreme Court to stay the mandate. That just means don't let this DC circuit order go into effect, the DC circuit decision go into effect to stay the mandate. And then, you know, whether they go for en banc review or they, you know, spend their 90 days before asking the court to take the case. And remember, then the other side gets a chance to respond and then they get a chance to respond. I mean, months and months. And then the Supreme Court, A, like they could deny it. If they take it, there's a real question of whether they would just put it on their merits calendar, because this would be a merits case at that point, David. And the merits calendar is filled up for this year.

That's even before, by the way, if we spent the 90 days. Even if it were tomorrow, they're done scheduling merits cases for this term. You'd be looking at September or October if it were today. And if it's, well, 120, whatever, like five months from today, by the time they finish the cert process november at earliest to schedule argument um so david the question then is does the supreme court take this case neil kotyol noted supreme court litigator says he says absolutely not yeah this is the this is a great question. This was

the part of this discussion I find most interesting, actually, because strategically now, the special counsel is in this really interesting bind because he already said to the Supreme Court, you should take this case. This is urgently urgently important we should go outside the normal procedure jack smith even argued so that you can take the case and then now he's going to say never mind never mind it's already been decided is he stopped from arguing that maybe i don't know that he's stopped from it it It's just, I would suppose, Sarah, he's going to say the D.C. Circuit, you know, justices of the Supreme Court. I initially thought it was my initial understanding that it would be best to expeditiously resolve this at the Supreme Court. But as far as I'm concerned, it's resolved now.

And there is move along, nothing to see here. But it is a fascinating bind because he went for the Hail Mary to get the unusual procedure to cut this all short. He's got exactly the decision that he wants. In all likelihood, it's very, very similar, though probably not identical, of course, but very, very similar to the decision he'd ultimately get here. Trump's not winning that immunity argument, but he's already gone to the court and said,

please take this. It's vitally important. So important we got to go outside the normal procedure. It's a tough position, Sarah. I'm going to be fascinated to see what he does next. So let me talk for just a second about estoppel. There actually is a thing called estoppel, just like a legal word for stop. It's the verb of or the noun of stop, whatever.

You're estopped from doing something. It's, I guess, when someone else... Anyway, I don't know what the linguistic word for us nobody knows what it means but it's provocative it gets the people going so estoppel would prevent a lawyer from basically reversing their own position from one brief to the next but it's supposed to be a legal position. By the way, there's other types of estoppel. There's collateral estoppel, whatever. But for our purposes here. So Jack Smith couldn't just like do a 180 in his brief. But this isn't really a legal position. This is about whether sort of the national importance of whether to take a case or not doesn't technically fall under estoppel, but it feels estoppely um he's told the court one thing

and to your point david he could say like well here's why the circumstances have changed and therefore my position has changed but he's not going to be able to just say it's no longer nationally important right uh and we talked about this before but yeah like he uh could have And we talked about this before, but yeah, like he could have, like there was a much lower chance that the Supreme Court would take it on an emergency basis than that they would deny cert after a unanimous DC circuit decision. But instead he tried to take the less high percentage chance. It was always a weird decision. Okay. So here we are. Do I think they'll take cert? You know, I think the answer is yes. And I don't just think it's yes because you're going to have both parties saying this is nationally important or because it is nationally important. But,

you know, your goal here is to count to four. It takes four justices to want to take a case. goal here is to count to four. It takes four justices to want to take a case. I think there's a lot of different ways to count to four, more so than in a normal case. Because I don't think it's out of the question, for instance, for an Elena Kagan to say, you need to own this. Like the Supreme Court, however you're going to decide it. And she's obviously going to vote that he's not immune from prosecution. But like, yeah, put your names on this. Say that he's not immune for prosecution because that's actually better for the country for it to come from the Supreme Court, for instance. Or if you really want to say that he is immune, then put your names on that, you know, or fill in the blank. Like maybe that's more of a Sotomayor position than a Kagan position so a you might have sort of a daring liberal vote as part of the four

you know there's an institutionalist argument against taking it for sure keep the supreme court out of this mess but there's an institutionalist argument that it's the supreme court's job to do this and then there's a legal argument that will get to the substance and that the dc circuit i think got not the outcome wrong but they got a little bit of the explanation wrong and to leave that on the books as the last word on this immunity question may irk a few justices who were like oh we need to fix that that's not the difference between discretionary and ministerial. Oh, no. I can see a lot of logic in the Supreme Court taking this in essence to just close the loop on the whole thing, because you've got previous cases involving Nixon and Clinton

on the role of criminal process during the presidency, the role of civil process during the presidency. And this is something that I think the answer, the legal answer to the question, is the president absolutely immune, is absolutely not. He is not immune. However, having SCOTUS say that in the same voice in which SCOTUS has not removed presidents from civil process, not removed presidents from certain kinds of criminal process. Having SCOTUS do that, I think it's like completing the trilogy or whatever. It's the capstone to presidents are not kings jurisprudence. So I can see a lot of logic in the court taking it just to put in the capstone. And I've got a way to cut through all of this, Sarah, to make all of this just sensible, rational, where we can chill out, disqualify Trump, and then just do all of this in the

normal course of business, you know, and have the trial sometime in mid-late 2025. And, you know, it'll be of interest, but it won't be of the same magnitude. But yeah, it's... You fixed it, David. Congrats. I fixed it. Yeah, you're welcome. That's the bonus you get for listening to Advisory Opinions. I just cut the Gordian knot. I get frustrated when I hear one side or the other side talk about how the timing of this is all political because both sides care about the timing and both sides are doing that based on the election, which doesn't have any actual legal significance, meaning legal significance to whether he's immune or to whether he should be tried

before an arbitrary election, except that he's a candidate in whether, you know, he should be tried before an arbitrary election, except that he's a candidate in that election. So yeah, Donald Trump wants it to wait till after the election because he wants to get elected president of the United States so that he can have some of these cases dropped. They'll be delayed until after he leaves office, even in the state versions, because a state isn't going to be able to criminally try a sitting U.S. president. isn't going to be able to criminally try a sitting U.S. president. So that's Donald Trump's reason is political. Jack Smith's reason is differently political.

It's not that he's trying to help Joe Biden win, for instance, but rather that his case disappears. So the only way this case gets tried is if it happens before the election. That's why he keeps pushing it but frankly as i will now appoint myself advocate for the legal system the legal system doesn't care when this case gets tried i do not think that there is a compelling argument to speed this case because of the election even understanding what happens if donald trump wins election, because that's not a concern of the legal system. Well, it is. I agree with you completely that there it is not, quote,

political to want to have this done before the election, because if you're a prosecutor and you bring a case believing that you can prove a crime beyond a reasonable doubt and you're in this highly unusual position where you believe you can prove a crime beyond a reasonable doubt, and you're in this highly unusual position where you believe you can prove a crime beyond a reasonable doubt, but there is a very significant chance that the defendant will be able to dismiss his own case without adjudicating it on the merits, that is a non-political legal reason to want to have this trial before the election but yet sarah when you're talking about the legal system itself um what interest does it have here you're right i mean the timing aspect of it is not really something that the legal system sort of has an interest in other than the interest that you have in speedy trials,

which is a defendant's right. That is to protect the defendant. And so that is an interesting quirk in all of this, given that having a rapid trial is generally what the defendant wants. If the defendant believes that they can vindicate their interest in front of a jury um yeah it's it's a it's a fascinating absolutely fascinating situation um and you know i'm i'm i'd be very interested i'll be very interested to see what if anything the supreme court does in the days following Monday when Trump's team files. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura

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Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right, let's move to the substance now. So as I said, 50 plus page opinion, no dissents. We'll skip over the top part, which is just the jurisdictional question of how they're able to get this on the interlocutory basis, as we sort of discussed very briefly. If you're immune

from prosecution, you're immune from process as well. And so your right is being violated if you even go to trial, hence why you get to then have this appeal before the trial, unlike evidence being withheld and stuff like that, which would only be after. Okay, so now we jump into the fun stuff. They have a nice little outline here. I think it's a good outline. The first section is going to be what acts of a president, if any, are immune from process,, preventing him from taking the action, you know, being enjoined, civil liability, criminal liability. And there's going to be some history here and some law here. The second part are going to be the policy concerns that the president raises. You know, if he's not immune from criminal prosecution, here's all the bad, you know, the parade of

horribles. They're going to address those. And third, they're going to talk about his double jeopardy argument, which is dumb. Yeah, it's so dumb. Okay, David. So in this first part, the question is, what is the president immune from? The Supreme Court has never answered this question. Is a former president immune from criminal process for actions he took while he was for official actions he took while he was president so i'm going to read a little bit from the opinion here the question of whether a former president enjoys absolute immunity from federal criminal liability is one of first impression the supreme court has consistently held that even a sitting president is not immune from responding to criminal subpoenas issued by state and federal prosecutors.

That was that case that the Supreme Court just had, the Trump v. Bantz case, although Nixon had it as well, and Aaron Burr. Woohoo! president is absolutely immune from civil liability for his official acts defined to include any conduct falling within the outer perimeter of his official responsibility. Both sitting and former presidents remain civilly liable for private conduct. Clinton. When considering the issue of presidential immunity, the Supreme Court has been careful to note that it's holding on civil liability. Do not carry over to criminal prosecutions. Okay, so this may be confusing to some people, right? That you would have more protection potentially from civil liability than you would from criminal liability. So just to repeat, the Supreme Court has held

that presidents are absolutely immune from civil liability from lawsuits for official acts they took while in office. But they're not immune from civil liability for personal actions, you know, like sexually harassing someone, etc. And they have left open the possibility that while you can't be sued for something you did as an official act, maybe you can be criminally tried. Again, it seems counterintuitive because we think of civil as the lesser and criminal as the more. So how could you be immune from the lesser but not immune from the more? When you think about it, it actually makes a lot of sense. We don't want a bunch of lawsuits harassing former presidents.

But if a prosecutor thinks they can prove beyond a reasonable doubt and can get a grand jury to indict a former president for an official act that violated a congressional statute, then maybe we're in a different ballgame. But that's a maybe. The Supreme Court's never decided that. And also the immunity from the civil immunity. There are so many different ways civilly to hold the government responsible and to restrain restrain unconstitutional government action. So it's not it's complicated, but it is not as if in civil law, the president is running around with this zone, this sort of incredible freedom of action. There is, the executive branch is besieged by litigation at all times, at all times. So there are many ways to hold an administration civilly accountable,

even if it's not an individual personal suit against the president. Okay, now we're going to get into the part of this where I think they've messed up. Oh, I'm eager to hear. And again, I want to be clear. The outcome is right, but they showed their work and they messed up in the homework, if you will. Something I'm not unfamiliar with myself in my own life. Okay. So when we're looking at, you know, we just said, for instance, the Supreme Court said that a former president is absolutely immune from civil liability for all official actions, even at the outer perimeter of those official actions. We talked about this before, David. Official actions,

however, are divided into two categories. Discretionary actions, meaning it's within the president's choice of what to do something, how to do it, how much to do it, how little to do it. Frankly, think border enforcement. And then ministerial actions, you are bound by law to perform x act right and again this may be a little counterintuitive at least it was to me uh back in the day in general we say that you can go into court on those ministerial actions and you can hold someone liable for those ministerial actions the things they are bound by law to do that they are failing to do but you can hold someone liable for those ministerial actions, the things they are bound by law to do that they are failing to do, but you can't for the discretionary ones. So as in the more latitude the person has, then the more latitude they have and they don't have liability.

So there's a difference between discretionary and ministerial that we're going to have to go through. And there's a distinction between enjoining someone or forcing someone to do a thing versus holding them liable for having done or not done that thing. And the panel here is going to conflate both of these distinctions. And there's going to be some fun cases. and there's gonna be some fun cases little v baramy for those uh you know lawyers out there who are like oh yeah little v baramy so congress passes a statute that the president can only stop ships going to france but president adams decides to stop ships going to and from france so that's a problem right the statute very clearly says you can only stop ships bound or sailing to any french port and adams is like cool cool so definitely any ships going anywhere in between us and france and he tells

the captain of this other ship, you know, just go ahead and stop that ship coming from a French port. Captain Little is held liable for executing a command that is illegal. Chief Justice John Marshall says, actually he phrases this as a question, is the officer who obeys the president's order liable for damages sustained by this misconstruction of the act, or will his orders excuse him? The instructions cannot change the nature of the transaction or legalize an act, which without those instructions would have been a plain trespass, or in layman's terms, yup, you can't do that.

So basically the panel is going to say, so see, if Congress passes a statute and the president violates that statute, there is liability. But there's a few things here. One, that's not the president. That's this lower officer. Two, it's, you know, civil liability. And basically they're going to, I think, really conflate discretionary and ministerial because what they're going to say here, which is crazy to me, and David, I think you're going to agree that this is just wrong. If Congress passes a statute, then it is ministerial. But that can't possibly be the answer or else we wouldn't ever have qualified immunity. All of those guys, by definition, are violating some statute by Congress. So something doesn't become ministerial just by virtue of there being a congressional statute that prevents it. In fact,

it doesn't answer the question at all for us if there's a congressional statute. It still could be discretionary or it still could be ministerial. And I think they just sort of make that assumption and start conflating a lot of these cases. Even in the Little v. Baramy case, there's an argument that that wasn't a discretionary act, that Little, Captain Little, was doing a ministerial act he was told by the president to do this thing he did not have discretion to do otherwise therefore he could be held liable because it was ministerial right i mean the the court is basically saying okay look if you you have discretionary action of ministerial acts if if congress passes a criminal statute the the way i read the the uh the way i read the

opinion is essentially the elements of that crime or the the legal components of that the legal prohibitions the the prohibitions in that in that criminal statute become is this a phrase almost like ministerial obligations that to not violate the law and that it's so in essence, when you pass this criminal law right there, as opposed to compelling the president to do something, they're compelling all of us not to do this thing. And that is what they're essentially saying is ministerial. is what they're essentially saying is ministerial i've but see that conflates it to me as well because now we're talking about for instance the congressionally passed criminal statute not to obstruct an official proceeding and there's the elements of that yeah but what we're talking about are the president's actions his official acts are you know let's use one of the examples the one that I think is the closest call here,

talking about replacing his attorney general with someone else who's going to do this other thing that he wants. Well, now, which one is, which thing are we trying to determine whether it's ministerial or discretionary? The criminal statute, like you just said, David, or is it the actual presidential act in question? I think it has to be the latter, in which case that was clearly discretionary. It just feels like to me, the whole ministerial discretionary dichotomy feels like it's a poor fit for I'm making a claim under specific criminal statutes that you have violated this conduct that it's that the that that entire that entire construct seems inadequate for dealing with specifically what we're dealing with versus a situation where you might be saying that an act that a government official took that might have been pursuant to a regulation but violated the constitution or violated the constitution

even if there was no underlying statute or reg that there's a lot of, there's just a different kind of analysis that's going into many of these civil cases that we've talked about versus the criminal case. It's, I found the whole construct of discretionary versus ministerial poured into this criminal statute to be unilluminating okay so this gets done to the second point all right so let's leave ministerial versus discretionary behind of trying to bucketize presidential actions because i think i agree with you i think it's it's not illuminating But then the next part of the opinion is going to conflate cases where an executive branch officer was enjoined from doing something versus when they were actually held liable. Now, their reasoning for that is we're just determining

whether there can be judicial oversight, whether there can be any judicial process about sort of these maybe more discretionary executive actions. But that's not really what we're trying to do here. We're trying to determine whether there can be liability for those actions. So for instance, they use this other case, Kendall v. Stokes. This is about the postmaster general and whether he can like levy certain fees and yada yada yada the details aren't going to matter too much to us but in 1838 the supreme court's going to hold that um basically the judiciary absolutely can enjoin the postmaster general from doing this thing that violates congressional will and they're like see look we can do this. You can't just ignore a congressional statute and do whatever you want.

The judiciary is here to stop that. True. But they don't mention the Kendall v. Stokes case that happened seven years later, where they also hold that the postmaster general cannot be held liable for ignoring that congressional statute. As in, you can force him to comply with it, but you can't hold them liable. And they just don't even mention that part, which is kind of crazy to me because that actually gets more to the heart of the question

that, like, it's a perfect case because there's two of them with the same facts, and that makes the distinction between sort of forcing executive branch action by the judiciary when they're ignoring congressional statute versus holding someone civilly or criminally liable afterward so david i felt like this whole part that's the meat of the whole opinion isn't actually correctly reasoned hmm interesting because if it is correctly reasoned then everything to do with qualified immunity is like thrown out the window. And I know.

Then that's correctly reasoned. Yeah. But, but like they're saying this is current law and that's just not the case. That can't be the case. And it, you know, I, one of the things that I struggle with as an adult is when you read something

that you don't understand, there's two possibilities. The person who wrote it is much more of an expert than you, and you don't understand why they're so right, because you just don't get it. They're smarter than you are. Or they don't understand it either, and they're wrong, and that's why you don't get what they're trying to say. And this is a struggle that I have all the time as an adult. Which one does it fall into when I don't understand something? Is it that they're so smart or that I'm so smart? I felt like I read this section of the opinion and I didn't understand it. I'll just say

that. Interesting. But let's move on to the next section, which is the policy considerations. So, right, Donald Trump says that if you say that presidents can be held criminally liable after the fact, this is the parade of horribles. You know, Joe Biden's going to get indicted for not securing the border. You know, they're going to find some criminal statute, fraud against the United States, and they're going to say, see, he committed fraud against the United States by allowing illegal aliens paroled into the country i think the court does a pretty good job of backhanding that one yeah basically nixon clearly thought he was amenable to criminal prosecution

which is why he got pardoned clinton clearly thought he was potentially amenable to criminal prosecution which is why he made a deal to give up his law license, et cetera, to avoid future criminal prosecution. So to the extent this would have a chilling effect, it should have had a chilling effect for the last 70 years. Two, of course, there's probably a specific compelling interest in an election, right? Because if a president's allowed to criminally rig an election so that he can stay in office, then what are we even doing here? You know, if Congress can't prevent it through legislation and the judiciary can't prevent it through trials, huh? So we just don't have a constitution anymore? Like, what's the point of even saying we have elections if the president can criminally rig the elections? And then three, of of course the impeachment clause

just speaks to this so clearly i'll read the impeachment clause but this to me you could have just done the whole opinion with just just the impeachment clause you don't even need explanation i'll read it judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States. But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law. Now, the Trump team argued that this meant you had to be convicted. It was a condition precedent. Right. But that's not what that says.

No. It does say the party convicted shall nevertheless be liable and subject to indictment but it doesn't say the party must be convicted to be liable and subject to indictment uh and the trump team had this quote from alexander hamilton in federalist 69 that they thought was like their ace in the hole i'll read that the president of the united states would be liable to be impeached, tried, and upon conviction of treason, bribery, or other high crimes or misdemeanors,

removed from office, and would afterwards be liable to prosecution and punishment in the ordinary course of law. They're claiming that word afterwards is doing a lot of work there. I didn't even read it that way when I first read this quote. It just is like literally telling you, even after you're impeached and convicted,

we still can try the guy. So like, don't worry about the president. He's not going to be King George. Doesn't mean it has to happen in this order. No, I'm with you, Sarah. That clause alone just ends this. It ends it. It ends the whole thing. ends the whole thing because under their reading if you have to be convicted in order to then be tried the impeachment and judgment clause as the opinion points out doesn't just apply to the president it also applies to the vice president and all civil officers of the united states so according to their reading you could never prosecute someone for breaking the law as long as they were in the executive branch when they did it, unless they were convicted in an impeachment trial. Yeah. No, I think that's why, again, going back to our discussion of discretionary

versus ministerial act, why were we into that conversation? Why are we having that? Because there is an on-point, I mean, dead dead on point constitutional provision. We don't fully center around that provision of the Constitution. I know. That's the key right there. The interesting thing, circling back to the timing question, is when you have this, you have the rest of the reasoning, which I have less beef with than you do, but I totally get your point. This is not a hard case at all. is under what circumstance would the Supreme Court grant a request to stay the mandate if there's... We're not talking about low probability of success on the merits. We're talking about like zilch probability of success on the merits here. Okay, except there's one problem. There is no question based on the impeachment clause that the president is not absolutely

immune from all criminal prosecution for all official acts taken while in office. Done. And so I would have started with that. The impeachment clause answers that question. Now we move on to a second question. Are some of the acts that a president takes immune from criminal prosecution? And that's where you get into the biden example problem can you simply try to say this thing that the president had a choice in how to do you know it was just up to the president for instance the president decides to retaliate against the houthis and bombs a houthi base right for instance, that is wholly within the president's discretion. Can you then, after the president leaves office, prosecute him for that thing that was his choice as president? He got elected. He has to make the decision. The buck stops with him.

So in my view, that's how this opinion needed to be structured. A, not absolutely immune. The impeachment clause answers that. We're done. Two, is there anything for which a president is immune? And then you'd need to walk through that example and explain why it's okay that the president could get prosecuted for something like that. And they do sort of touch on those examples, David, in judicial immunity about bribery. that a Arab billionaire who was trying to degrade Houthi capabilities agreed to pay a billion, to channel a billion dollars into a re-elect fund, you would still, there would be criminal liability there. That's the interesting thing about this. If you have a criminal statute that applies to the action, is there a circumstance in which the president's discretion overrides a plainly applicable criminal statute?

That's what I keep tripping up on, Sarah. That's what I keep tripping up on. up on, Sarah. That's what I keep tripping up on. And not only if your gut's telling you, yeah, obviously we should be able to try the guy for bribery, your gut also has good backup and plenty of precedent where judges who have absolutely judicial immunity are tried for bribery all the time. And we hold it, of course, you're not absolutely immune. Even if you're absolutely immune for all judicial acts, we don't consider bribery then to be a judicial act the crime is that you took the money in exchange for an official act but david you see the problem right what if it's not bribery what if you're just getting charged with some other very vague

federal criminal statute for the bombing itself for the decision to bomb yeah that that's where you're going to i mean but is your primary defense there your discretionary authority is your primary defense there what the heck are you doing filing a loss or what the heck are you doing prosecuting me under a weirdo theory for a a you know a a normal presidential act in other words you have a defense to the actual elements of the crime that you know it's yeah but what if i mean that in the question is should you be immune from the whole trial process but second it's not that hard to imagine that a jury convicts a former president for a very unpopular bombing that let's say killed a bunch of civilians and children and the pictures were all over the newspaper and it was horrible totally within his

discretion totally his right to do it but you know let's say it's involving israel and gaza right and one side is really unhappy with the president's choice to send money to israel and then indicts him for the deaths of various gaza civilians. And yeah, he has defenses, but he gets convicted. You think that's okay? So, the thing that I keep going back to is, you can always have a parade of horribles around frivolous convictions, like frivolous efforts to try to convict presidents, which we've been having the whole time in American history. The whole time in American history, presidents have not been a mutant. And so, this is one of the things that kind of stumps me because

we have an awful lot of history here. While this is a case of first impression, we have had a republic for a long time time and we've just not had this we have not had this parade of horribles of vulnerable presidents um and so the parade of horribles argument to me doesn't have much purchase because we've we've had a republic for more than 200 years have not endured the parade of horribles, and not because we haven't been viciously partisan before. We've been really viciously partisan. It just strikes me as not a credible counterfactual. That's what I keep getting tripped up on. These counterfactuals just aren't credible. tripped up on these these counterfactuals just aren't credible i think that's a fair response normally i would not think it's a fair response but in this case i'm it's mostly fair except for the part that i keep bringing up about this um trump indictment where it is all like the one section of it is based on him talking to the department of justice asking them to open an

investigation into election fraud when they tell him there's not election fraud he considers replacing the attorney general with an attorney general who will investigate whether there's election fraud and then he decides not to do it who will find that there's election fraud not not investigate yeah great yes but like and then he decides not to do that and he's indicted for that that's a little crazy, David. It's not a wild hypothetical. No, I think that's a, but I think that, that that is a, that's a much easier case on the

merits to deal with. But I also think that the problem that that particular count is still all of those facts that you talk about, I don't think you can pull and complete isolation from the larger scheme. This was part of the larger scheme. And so that's what pulls this into this case. Now, would I have charged that element of it? I don't think that I would have charged that element of it. I don't. But I don't think that you would have, if in the absence of everything else around this, you would not have had that charge. That charge does not exist without everything else.

All right, last piece of the outline. I mentioned double jeopardy. It's worth just a hot second on. Trump's team sort of claimed and kind of abandoned when they got to the D.C. Circuit this argument that there are double jeopardy principles, penumbras, and emanations floating around the impeachment clause so that he was impeached, he was tried in the Senate and acquitted, and therefore he can't be tried criminally. Again, I would point to the impeachment clause.

Now, it's true. It doesn't say what happens if you get acquitted, but it's certainly, it's not hard for them to have said, and if acquitted, will not be tried. They know how to do that. They know how to write that. And the opinion very nicely walks through how impeachment

is not a criminal process in any way uh it's a political process and this gets you know we got a couple questions about the mayorkas impeachment and how that could possibly be a high crime and misdemeanor to basically not enforce border policies let's say impeachment is not a criminal process what high crimes and misdemeanors means is whatever the house of representatives and majority of the house of representatives says it means and it is a true political question in the sense that the judiciary is not going to come in and tell the house of representatives otherwise so a impeachment is not criminal and two the panel says do you like how i did a and two um the blockburger test we this, David, and we talked about double jeopardy before about where we've ended up on what is double jeopardy.

And we're in an elements place as long as the elements are different between what one is and what the other is. applied. What he was tried for in the Senate has a different element as what he's being tried for in the DC federal court. Therefore, even if it were double jeopardy, it would pass the block burger test and you could still try him for it. That also to me seemed like an easy part of this decision. So end of the day, David, my take, right outcome, wrong reasoning. decision. So end of the day, David, my take, right outcome, wrong reasoning. Yeah, I'm definite right outcome. More okay with the reasoning, but feel like it could have centered more around the impeachment clause, just as a, let's just start. This really does decide it. This decides it. The rest is just bonus. The other interesting element of the opinion that we haven't talked about yet is just a very quick, there was a quick aside in a footnote that was reminding us that, wait a minute,

remember, this is for absolute immunity for official acts. A lot of what we were talking about here in this case actually isn't official acts. It's office-seeking acts versus office-holding acts. And therefore, he wouldn't have been immune anyway, but we don't have to decide, we don't have to parse what was office-seeking versus exercise of his presidential authority. We don't have to parse that because we've held that he's not immune. But I thought it was worthwhile that they did not grant that all that what he was doing was part of his official presidential authority. That gets messy too because in that presidents

are absolutely immune from civil liability for all official acts including in the outer perimeter a lot of office seeking will probably fall into that outer perimeter of official acts potentially and again like do you want to spend all your time now diving into the outer perimeter of official acts, potentially. And again, do you want to spend all your time now diving into the outer perimeter of official acts and what that means? Okay, we're leaving this decision behind. We'll keep up with the timing and the process things that happen from here. David, we have this Supreme Court argument coming up on the Colorado disqualification case. Give me one thing you're going to be listening for. I am going to be listening a lot. Does the court zoom in on substance or process? Say more. If the court is really drilling down

on process, in other words, what kind of evidence was admitted? How much of an opportunity was there to contest the charges? The due process question that we have talked about at some length, that's going to tell me they're looking for a way to punt. That they're not, they don't want to say he did or did not engage in insurrection. But that they would cut this off from a process position before they dive into the substance of it. Also, if I'm listening to, if I'm hearing a lot of questions about Congress's role, then I know, hmm, are we getting into the self-execution? Because I'm very curious here, Sarah, is this the kind of thing that if the court pushes it away, is it the kind of thing that they actually want to rule that something like this is not an insurrection? Do they actually want to rule and establish a precedent that the president is not an officer within the meaning of this section? be very consequential decisions that could apply to future incidents of unrest. And I'm not necessarily sure that they want to create a condition that says, here's the amount of dangerous violence that's acceptable within the meaning of Section 3 versus, well, we're not going

to opine on the extent of Trump's participation in this really terrible time. But what we are going to say is Congress hasn't given us the tools to adjudicate this or that whatever processes do, it was more than what he got. And so that's what I'm going to be very interested to look at because the more I look at this case and the more I look at like the questions the more I look at the questions of definition

of insurrection versus definition of an officer, the more on the merits I feel like the court would have to reach a very interesting decision that really narrowly defines an insurrection if they're going to get this on the merits. And the officer argument has never been that persuasive to me. So I'm very much looking at do they zero in on substance or process? That's what I'm focusing on. So here's my take ahead of time. If all of the questions are just on a who decides, the states or Congress, basically focusing on, is this just up to Congress to disqualify someone to decide that they are not eligible to be president of the United States after that person is elected or after anyone's elected? Not just the president, obviously, because it applies to everyone else. Is that where this focuses? Or

do we have questions on whether it's an insurrection? Because I think at the point that we start seeing questions on whether it's an insurrection, that's where we move into what I'm going to call my 9-0 territory, where the court, almost like in a John Roberts Obamacare opinion, where the top part will say, opinion where the top part will say this was an insurrection let me tell you why abcd however it's up to congress to say that someone is disqualified after they're elected i think that's how you get to the nine zero territory and so the more questions we hear about whether it's an insurrection the more i think that they're thinking along that line, the more we just hear whether it's up to Congress. That's where I think you're probably more likely to get a divided opinion.

Yeah. Et cetera. But David, interesting point on the officer part. I think I've come around to where you are, that this applies to the president of the United States. And let me tell you why. Okay.

Because a listener sent me this paragraph from one of the amicus briefs that I had not read. When Civil War lawmakers aimed to exempt the president, they did so expressly. The Ironclad Oath Act of 1862, so just a few years before Section 3 is going to get written, just a few years before section three is going to get written applied to every person elected or appointed to any office of honor or profit under the government of the united states either in the civil military or naval departments of public service accepting the president of the united states that's pretty good yeah it's pretty good evidence it's pretty good now you still have the problem where originally the president united the United States was included in the Section 3 language and then it was taken out. So, like, that's still messy, right?

So, they didn't accept him, but they didn't include him. Like, they just didn't include language at all. So, what were we supposed to do with that? But, like, this is just another weight falling on the side of, like, nope. They knew how to include him. They knew how to accept him they knew how to accept him they didn't accept him therefore we should presume then that the president is included all right david lasting on our agenda yes the new yorker did this profile of our little podcast of

the flagship that's right they did a profile of you, Sarah, and they included the podcast. The reporter here is one of their great music reporters. So I read his profile of George Strait. And George Strait, me, both Texans, both having profiles by the same reporter in The New Yorker, I think we're equivalent. I mean, George Strait is the GOAT of country music. So obviously then I'm the goat of legal podcasts. I think that's the inescapable conclusion. Yeah. There's no question about that.

So what I love about this is that Kay, the reporter, he's listened to every episode of the podcast. I love it. I love it. Like we actually had basically just a fan of the podcast who wrote a it. I love it. We actually had basically just a fan of the podcast who wrote a profile. And so if you're a longtime listener, I think you'll enjoy the profile because it was written by someone who's listened to every episode. It's like the buckets are in there, a gnaw dog. And I don't know. I feel like he gets us, David. I know, I know. It was, no, I really enjoyed reading it. I thought it was great. And I'm grateful for the great comments

from some people who are interviewed about, including friends of the pod who are interviewed. And there were some great, great comments about the podcast. And he did get to a real insight here, Sarah. He got to an insight that I think is important. And he was talking about how, and this might come as a shock to people, we don't have a lot of political purchase in today's GOP. Let's just say that. Yeah. You and I, we do not have, like the GOP is not our

natural home right now. But what he was pointing out was that we do have a lot of purchase in the judiciary. In other words, not that we do personally, but our outlook, our philosophy, the way that we approach the law is very simpatico with a big chunk of the federal judiciary. And so, whereas you're not going to listen to advisory opinions to get insights into the inner workings of MAGA, we do actually have insight into the world that we cover here. And the world that we cover here actually reflects our ethos far more than the political world does and i think that that was a uh a really interesting insight from the piece agreed it was a long time

in coming he's sort of been working on this for a long time and um went to lunch with me and david so there's just great little vignette in the piece where i talk about how david and i had a slumber party and then david's like I stayed with Sarah and Scott um it's all very funny it gives me credit for inventing the word buckets like the word just the word bucket yeah like human civilization did not know what to call those things I'm just grateful to you Sarah because for years I've been saying the thing that holds the water finally someone has given you a word for that. It talks about the Justice Jackson quote that's framed on my desk and the tattoos. No, it's good. I mean, look, he does have, though,

a good point and one that you and I don't have a perfect answer to, which is, is the legal world just a lagging indicator? Right. No, I know. And that's something that I think about all the time, Sarah. And I think that one of the reasons why it's quite urgent that the decline of the GOP be arrested is that all of the incentive structures for law students and aspiring judges are going to be warped by the political side. And the political side, which is decided, a large chunk of the political side has decided that Kavanaugh and Gorsuch and Barrett were mistakes. This is what DeSantis would say out loud, which is mind-blowing to me, mind-blowing.

So I do think that there has to be a change on the right or the judiciary will change. I mean, I just don't think there's really any question about that. And it's how the judiciary comes to exist, right? Of course, it's a lagging indicator because they're not directly elected. They're appointed by the people who were elected. And so by definition, they lag behind elections. So, yes, I agree with you. He flags it as a real problem.

What if it's not that the law is just this happy place where people make their good faith arguments, but in fact, it's just a bit of a time capsule right now and the erosion will hit that sedimentary level in a few years? I think that's inescapable as a real problem. I agree. I worry about it.

I really do worry about it. And I think he put a finger on something that is an absolute real concern. And, you know, it's once again, like I've seen so many people on the left just say the most vicious things about the Federalist Society. And I 100% guarantee if you have like the% guarantee if you have Attorney General John Eastman and you have Justice Bondi and all of this, then people will say, you know, I appreciated Gorsuch and Barrett

and sort of the way in which people have strange new respect for George W. Bush or Mitt Romney after vilifying them, just vilifying them. They realize that, no, actually there is something that is much different from Mitt Romney, or there are people actually much worse. And I just can see this coming, Sarah. I can see it coming from a mile away. All of these folks that are dumping all of the Fed sock going, you know what? I long for the GOP of the Fed sock. But look, here's the good news. The judiciary is a very lagging indicator because of the protections that the constitution has built around the judiciary. Life tenure means that we've still got people who are appointed by

Ronald Reagan on the bench right now. And so it'll be really lagging. We have time to fix the political process and the political side before it overtakes the judiciary. Not endless time. Not endless. And I think that getting rid of the filibuster speeds up that timeline quite a bit. But there is time and in the meantime we are dinosaurs watching as the asteroid sails overhead it's so beautiful up there look at that fiery tail

but let's just before we end congratulations sarah on a i think it was a lovely portrait of you the pod um i i was just excited to read it oh thank you david i don't accept compliments well i'm trying very hard right now all right so we will be taping another episode of this podcast uh just right when you're listening to this podcast for the oral argument on the colorado disqualification whether you want to consider this the emergency pod or that the emergency pod we'll leave that to you but we're just having like a legal blockbuster bit of a week here we're also expecting the special counsel's report from special counsel rob her on joe biden's potential um mishandling of classified information we have the fonny willis hearing coming next week about her potential disqualification from prosecuting the georgia

case um yeah just a lot a lot going on so we're trying to cover it all just hitting it whack-a-mole and we'll talk to you next episode.