Consider This from NPR - Trump is arguing for immunity in his criminal case. Will the Supreme Court agree?

Episode Date: April 24, 2024

One of Richard Nixon's most famous quotes...right up there with "I am not a crook"... had to do with presidential immunity."When the president does it" he said "that means that it is not illegal." That idea – that you can't prosecute someone for actions taken as president - the Supreme Court has never actually ruled on it.On Thursday, the Justices will take a crack, with the federal election interference case against former president Donald Trump hanging in the balance.We preview how things might go.For sponsor-free episodes of Consider This, sign up for Consider This+ via Apple Podcasts or at plus.npr.org.Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

The Supreme Court can move fast when it wants to. On July 8, 1974, the court heard arguments in United States v. Richard Nixon. A little over two weeks later, we had a verdict. By a unanimous ruling, eight justices of the high court have ordered President Nixon to surrender 64 tapes of Watergate-related conversations. Then, the next month, August. I shall resign the presidency effective at noon tomorrow. More often, though, the Supreme Court moves slowly. The court hears arguments and then the public waits for months as a health care law or same-sex marriage or abortion hang in the balance.

Speed, or lack thereof, will be critical in the case the Supreme Court hears Thursday. Former President Donald Trump is arguing he is immune from federal prosecution for official acts he took as president. Almost no one believes the justices will buy that argument. Here's UCLA law professor Rick Hasson earlier this year. Even an executive power person like Justice Kavanaugh surely doesn't believe that a president could order SEAL Team 6 to assassinate political rivals without facing potential criminal consequences. But a loss for Trump could still be a win if it delays his trial long enough. He faces criminal charges for attempts to overturn

the 2020 presidential election. Surely the court was aware that timing is everything here, and the fact that they set this for the last week of the term, when they're going to be the busiest that they're going to be all year, it looks like they recognize that this trial may well not happen before the election. Consider this. The Supreme Court is about to decide whether Trump can be prosecuted in federal court. Whether he ultimately stands trial may depend on how quickly they make that decision. From NPR, I'm Mary Louise Kelly. It's Consider This from NPR. One of Richard Nixon's most famous quotes, right up there with I am not a crook, had to do with presidential immunity. When the president does it,

he said, that means that it is not illegal. Well, that idea that you cannot prosecute someone for actions taken as president, the Supreme Court has never actually ruled on it. On Thursday, the justices will take a crack with the federal election interference case against former President Donald Trump hanging in the balance. To preview the case and its implications, I am joined by University of Texas law professor Lee Kowarski. Professor Kowarski, welcome. Thank you for having me. So the special prosecutor on this case, Jack Smith, has charged Trump with a number of crimes. They're all related to the effort to overturn

the 2020 presidential election. Trump is arguing can't happen. He cannot be prosecuted. Just lay out what is his reasoning. Former President Trump is arguing that former presidents have immunity for criminal prosecution from conduct undertaken while they were president. And he's arguing that the conduct alleged within the indictment is conduct within the scope of the presidency. And because of that, he can't be prosecuted or convicted for it. I mean, is he basically flipping the argument on its head that prosecutors are trying to make? They say Trump was trying to overturn the election, subvert the election results. Trump and his lawyers are arguing, no, no, no.

These were official acts, and I was trying to safeguard the integrity of the race. Yeah. It's basically a distinction between Trump the candidate and Trump the president. And if you think he was behaving as Trump the candidate, pursuing his own private interests, then you're much less likely to believe that he's entitled to presidential immunity. And if you think that he was acting as Trump the president, i.e. he was acting as a faithful steward of the American people pursuing the integrity of elections, then you're more likely to think that his conduct is immunized. Okay, so we will note that the Federal Appeals

Court, which ruled on this, did not buy it. They roundly rejected this argument by Trump and his legal team. I will further note that most legal observers believe it is extremely unlikely the Supreme Court will give Trump a complete pass, complete immunity. You argue it is still worth the Supreme Court hearing this case, and I want to know why. Donald Trump and people in Trump world are being pretty explicit about their intent to weaponize the Justice Department and to do so against future presidents. And if we're entering a new political era in which newer presidents prosecute their predecessors, you can't really put the genie back in the bottle, but you can control the downside somewhat with certain kinds

of immunity. So, I mean, what kind of precedent do you think it would be useful for the court to establish here? So there are certain things that presidents do that are uniquely assigned be appropriate. The problem is that Trump is claiming an immunity for a universe of conduct that doesn't go anywhere near national security or foreign affairs power. And so the challenge for the Supreme Court is whether or not this case is really a good fit for announcing the immunity that might be desirable from a good governance perspective. So if it sounds as though you were in the camp that thinks it's unlikely they would rule and give him complete immunity. That's absolutely correct. They might actually adopt the broader immunity standard, although I don't think they will. And that's

called official acts immunity, which would basically immunize the president from prosecution for anything that could be classified as an official act. The problem is that there's so much conduct alleged in the indictment capable of supporting a conviction that's not an official act that even if the court went with the broader standard, it's unlikely to actually preclude the prosecution against Trump. Hmm. I mean, it's fascinating. The court, as we noted, has never resolved whether a president is immune from criminal prosecution because before Trump, there were no indicted former presidents. Are there certain justices you will be watching closely that may tell us which way this case will go? Yeah, I'm going to be watching justices Amy Coney Barrett and Brett Kavanaugh very closely.

You know, I think that the chief is probably not inclined to entertain a broad immunity in this kind of case. And so I think the median voters are really Kavanaugh and Barrett here. Both Trump appointees, we'll note, yeah. Yeah, both Trump appointees. And I know that people are accustomed to treating Kavanaugh as the median voter, that is the fifth vote. But I'm not actually sure that when we're talking about what I sometimes call the democracy docket, that Amy Coney Barrett's not the median voter here.

And there's just some stuff in her body language in these cases, specifically in the tone of her questioning in the ballot access case out of Colorado that makes me think that she's pretty skeptical of Trump, the person in this litigation he's undertaken in his personal capacity. Let's talk timing, because of course the election calendar is hanging over this. At a certain level, is the court's decision to hear this case already something of a win for Donald Trump, whatever the eventual ruling, in that it delays the start of a criminal trial? Absolutely. Because if the delay of the trial is sufficient to push it past the election and then Trump wins the election, the case goes away. So give me a little bit of a preview of where this goes next.

The court will hear arguments. It will rule. What are the next steps? How quickly could this case proceed? It's hard to say exactly because there's a lot of unknowns. The court could decide the case pretty quickly or could decide the case on the last day of the term, which is at the very end of June. Judge Chutkan has indicated she's going to give the parties about three months before trial to prepare. So it's the judge on the criminal trial.

Yeah. And if that three months runs from the end of June, then that puts us at the beginning of September. There's some time for jury selection and then trial, let's say eight weeks. I think the most likely outcome if Trump loses is that the trial starts before the election, but might end after it. Which brings us back to the point you made that if he is elected president again, he has the power to make it go away. That's right. He either could find a way to get his Justice Department to get rid of the prosecution while it sits on appeal in some way, or he could just self-pardon. Lee Kowarski, law professor at the University of Texas,

thank you very much. Thank you so much for having me there, Louise. This episode was produced by Connor Donovan. It was edited by Courtney Dorning. Our executive producer is Sammy Yinnigan. And one more thing before we go, you can now enjoy the Consider This newsletter. We still help you break down a major story of the day. You will also get to know our producers and hosts and some moments of joy from the All Things Considered team. You can sign up at npr.org slash consider this newsletter. It's Consider This from NPR. I'm Mary Louise Kelly.