Consider This from NPR - Trump's Trials: Jack Smith's big gamble

Episode Date: December 16, 2023

Today we're sharing an episode of NPR's podcast Trump's Trials, hosted Scott Detrow with regular analysis from Domenico Montanaro. They are joined by former Deputy Assistant Attorney General Harry Litman. This week's focus: the January 6th federal election interference case. Prosecutor, Special Counsel Jack Smith, made an unusual move, and sidestepped the appeals court and went straight to the Supreme Court to answer a fundamental question at the heart of the case:. Can presidents be criminally prosecuted for crimes they are allegedly committed while in office? Topics include: - Presidential immunity - Does presidential immunity apply to Trump's actions on January 6th - Predictions on how the Supreme Court may respond - New case timeline - An update on the New York Civil Fraud trial Follow the show on Apple Podcasts or Spotify for new episodes each Saturday.Sign up for sponsor-free episodes and support NPR's political journalism at plus.npr.org/trumpstrials.Email the show at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hey, it's Scott Detrow, and I'm here to share the latest episode in another podcast that I host called Trump's Trials, where each week we break down the big news from former President Trump's legal and civil cases and talk about what those cases mean for democracy. Thanks for listening, and we will be back in your feed tomorrow with our usual Sunday episode of Consider This. Can presidents be prosecuted for crimes allegedly committed while in office? From NPR, this is Trump's Trials. I'm Scott Detrow. This is a persecution. Felony violations.

For national security laws. We need one more indictment. Criminal conspiracy. To close out this election. He actually just stormed out of the courtroom. Innocent until proven guilty in a court of law. This week we are once again focusing on the federal election interference case that will be tried in D.C., one of the two cases brought by special counsel Jack Smith.

This week, Smith took a bold step and filed a request to the U.S. Supreme Court asking them to answer this question. Can presidents be criminally prosecuted for crimes that they're alleged to have committed well in office? This question is essential because if the Supreme Court rules against Smith, decides Trump does have presidential immunity, then that undercuts the entire case. What the court does with this question and how quickly it does so will also have a huge impact on the timing of the trial and how it collides with next year's presidential election. As always, I am joined by NPR senior political editor and correspondent, Domenico Montanaro.

Hey, Domenico. Hey, Scott. Great to be here as always. Always thrilled to see you when we tape this. What's going on here? A lot happened this week. Yeah, I mean, I want to pick up on that thread that you mentioned there about time. You know, Jack Smith and the Justice Department are really racing against the clock to get this case to trial as soon as possible. I mean, I want to pick up on that thread that you mentioned there about time. You know, Jack Smith and the Justice Department are really racing against the clock to get this case to trial

as soon as possible. I mean, why? Right. Because we have this little event that's going on every four years called the presidential election. Right. I mean, you know that you've heard me say this before, but the political calendar is a major factor here. If the D.C. election interference case gets pushed back enough, like Trump wants, it could delay the other trials and it may not start until after the election. And if that happens like Trump wants, it could delay the other trials, and it may not start until after the election. And if that happens and Trump wins, it may never happen at all. Any delays to any of these four criminal cases runs the risk of voters not being able to hear the evidence or gain the full picture of Trump's alleged actions before heading to the ballot box. And by the way, that certainly looks to be the case for

Republican primary voters already. Right. Some key races will have already happened before the scheduled start of this trial. Now we are talking about this trial being pushed back. Trump could be the nominee by the time any of this starts to happen. Yep. We'll talk about thatittman, a former U.S. attorney and deputy assistant attorney general and current law professor. Welcome to the podcast. Thanks. Good to be here. So, Domenico, let's start with you. Can you briefly explain what exactly presidential immunity is, why the president has it, what we're talking about here? How long do we have?

I mean, it's like... Typically, the podcast is 15 minutes. Okay. Well, I'll keep it short then. The fact is, it's not really 100% clear that it even exists, right? I mean, like the Supreme Court has had sort of differing opinions on this. There's some interpretation within parts of the constitution, but the constitution doesn't make immunity something that's clear. There's sort of guidelines within the Justice Department that have cropped up to say that they won't pursue a president essentially while they're president. Right. We spent a lot of time talking about that the first couple of years.

Right. With the Mueller investigation and everything. But now what this really comes down to is, you know, whether or not Trump was acting as a candidate or whether or not he was acting as president. And that's sort of the case that his team is trying to make is they're trying to dismiss this and say, you know, no, he was he was acting as in his official duties as president. The lower court had said, no, actually, he was acting as a candidate. And Harry, I want to ask you about Smith's decision to appeal directly to the Supreme Court in a moment. But first, is there any key thing to think about on the issue at question, presidential immunity, what's been written before, what's been ruled before, or what we've seen in the

rulings so far from Shutkin and others? Yeah. So first of all, I think Domenico is a secret lawyer. He basically pinpoints that there is nothing said in the Constitution, but the Supreme Court has basically decided, look, there are certain instances that would so impair the operation of the executive branch, for instance, I'm sure they would say, being in jail and trying to run the government, that we discern immunity. So immunity is just a kind of a policy call that they make to further the relations between, you know, and the separation

of powers among the branches. To Smith's move, I think it was really a masterstroke and one of those moves that like looked brilliant in retrospect, but nobody thought of because there's two things happening right there's the immunity issue itself which probably is the big one that this is going to go to the supreme court and then there's the ticking clock and so normally when you're ahead in the game you let the other person you know plod through but there is this rare device where you can jump the line and take it right to the Supreme Court. And he was thinking, I think, if, you know, it may come to that anyway. And if we lose, we're toast in any event.

So let's try to tee this up because it's for the one trial that has the best chance of going forward and finishing before November 2024. On this immunity question, have we gotten a sense yet what the court has made of this request and what sort of timeline we're thinking about from a court ruling? We have in terms of the timeline, Scott. So what we know is they hopped to when the DOJ asked them and made Trump submit a response, which would normally be 30, 45-day affair. You can get an extension by Wednesday. So they gave him nine days. And we think they're going to have this on this super fast track.

The best precedent for it is U.S. versus Nixon. So we know that they're going to move very quickly in deciding whether to take up the issue. No hints further than that, but that's a pretty big one. Just a quick note on the timing. Chutkin earlier this week said, I don't have jurisdiction anymore, and so I'm letting this go for now. The DOJ said, you can't set a trial, sure, but you could still keep going with the discovery. And she said no. So that means that every day now that we have until they decide immunity is basically one for one a day that the trial is being pushed back. So we really are looking, even in the best case, at a 30, 60-day delay.

Okay. And, Domenico, that's where the intersection with the political world is really important here. This trial was set to start March 4th. Trump is far and away the leading candidate in the Republican field. Walk us through how quickly he could sew up the Republican nomination next year. Well, March 5th is the next day, and that's Super Tuesday. And the 36% of all of the delegates will be allocated on that day. By the end of March, you'll have 70% of the delegates already allocated in the Republican primary. So, you know, instead of almost looking at this as a convergence of the political and legal calendars, I'm starting to

see a divergence in the two, because as these cases sort of get pushed further and further down the line, you're going to have a situation where the Republican nominee is essentially going to be sewn up sometime in the early spring. And you're going to have the trials really just starting to start up, potentially, even if we're thinking about this case in Georgia in August, right in the middle of the heat of a presidential general election. We have seen the way that Trump's numbers among Republican primary voters went up a little bit each time that he was indicted. But a possible criminal defendant presidential nominee is a much different question with a general election audience.

Definitely. And our latest NPR PBS NewsHour Marist poll certainly bears that out. You know, a lot of people are registering their frustrations with Biden as president, but there's a big difference between whether or not people who are frustrated with Biden would then sort of choose Trump. That's not what we're seeing in the numbers at all. Trump, in fact, was more disliked than Biden in our survey. 56% of people said that they have an unfavorable rating of Trump. 53% said that they have an unfavorable rating of Biden. So this is still very much a coin flip. So that's the timeline of things and how this is going to affect the presidential election in maybe a different way than we thought before. Let's talk about the

legal question itself of presidential immunity and what we think the court could do with it. Harry, the Supreme Court has ruled several times now on issues related to Trump and legal questions. What do these past rulings give us, if anything at all, when it comes to clues about how they might think about this? You know, they do give us some breadcrumbs. There have been other settings in which the pivotal issue has been, was this guy acting as a president or in his official capacity, or was he what the courts have called beyond the outer perimeter of his official duties? Presidents have broad responsibilities, and if they're somewhat in there, even in the border, that they are okay. And the pivotal fact for Chutkin was

this wasn't any kind of official sort of White House gathering. He's a candidate, and it's 100% clear that the Constitution is agnostic, the way they put it, about who wins an election. So a candidate has no constitutional stature, if you will. And if he's just saying, give me your vote, and he's more than saying that. He's saying, I won this election that I lost. Your voter or Mike Pence dies or whatever. That will be the argument. This is no way within the outer perimeter of his duties. And it's a very conservative court. Nevertheless, if I had to bet, it would be that they would not give him a pass. One very little clue, Justice Kavanaugh, who is considered the center of the court, actually said U.S. v. Nixon was

one of the court's shining moments of 4-5 and his confirmation. I just don't see them saying, you know, a president can do anything. I think it's interesting because Kavanaugh in particular, somebody I wanted to think about or was thinking about in all of this, not just because of his place in the center of the court, but also because in a lot of his lower court rulings and a lot of the ways that he's talked about the presidency, he's very much in favor of what's known as the unitary executive, meaning that the president has more powers than I think a lot of the checks and balances would ascribe to him. To me, also, this case, frankly, is the latest test of whether or not the president is above

the law. And we hear attorneys general like Merrick Garland saying the president is not above the law. We heard Robert Mueller say the president is not above the law. But honestly, in some ways, the president is above the law. It just depends on how high or whether or not they can actually say he was acting as president or not. Harry, any sense that the court's ultimate ruling on this immunity question could affect the other three criminal cases we're talking about, the classified documents and obstruction in Mar-a-Lago, the Georgia election interference case, or the New York campaign finance case? Yes, the Georgia case. So what they're going to be asked to rule as a president when she or he is president has immunity. But former presidents, not yet presidents, they don't have immunity. So the New York conduct,

recall that's in the heat of the campaign with Stormy Daniels. The Mar-a-Lago is after he's out when he no longer has entitlement. The Georgia case is down the middle. He is president. There's a little wrinkle in that it's a state case, not a federal case. But if the Supreme Court were to find immunity for a president in a situation, I think it would necessarily have to hold as against a state as well that's trying to indict him. All right, shifting gears, talk briefly about the New York civil fraud trial. A testimony has wrapped up in that case. There's going to be final arguments in early January. I think the big thing to talk about here is the fact that Domenico Trump changed his mind again. He had announced that he was going to testify for a

second time, this time in his defense. First time on the stand, it was pretty feisty. He basically acted like he was, you know, holding a campaign rally. And then an about face at the last minute, not testifying. What did you make of that? Well, what I made of it is that he had nothing left to say politically when it came to this. He's made his case and that he's not really going to change anybody's mind. He's not going to change the judge's mind when it comes to how he talks about this. I mean, he made a lot of admissions, frankly, in his first time around, and he might have been doing himself more hurt than good when it came to legally, you know, and how much, like you said, how much he would have to

pay. Because remember, his company was already found guilty on this civilly. Like, this is not a question of whether or not the Trump organization did the things it was accused of. It's just a question of how much it's going to cost him. Harry, can you legally fact check something that Trump said when he said that he was changing his mind and not testifying? He said it was because of that gag order that's in place against him. Okay, hold on one second. We're checking that. No, the law isn't that irrational. If you're asked a question, you get to answer it.

It's a gag order. It doesn't keep you from testifying truthfully in court. It just keeps you from making certain public statements. Harry, we try to wrap up the episode by thinking about what of all the things, whether it's filings or rulings or the timeline, what happened this week that's going to matter the most going forward? The Supreme Court deciding that it will very quickly take up or not take up the issue of Trump immunity. I think we'll know the answer to whether they will take the question in a couple weeks. Now then, one hopes, and this would be the Nixon precedent, that they would actually take it, hear it, and decide it in like a month rather than their normal timeline of going till June.

And we would know that as well when they take it. They would issue a briefing schedule. And this might be just the one to keep all lawyers working past Christmas and Kwanzaa. All right, Domenico? I have Dr. Seuss on my mind, clearly, as a dad and thinking about Christmas, of course, right? Except so did the Trump lawyers, apparently, because they decided of all the names that they've called Jack Smith, the prosecutor in the federal case. This week, it was the Grinch, which I found kind of interesting because they were essentially accusing him of trying to keep them around to work during Christmas because they said the schedule would, quote, make President Trump's opening brief due the day after Christmas. This proposed schedule would require attorneys and support staff to work round the clock through the holidays, inevitably disrupting family and travel

plans. It's as if the special counsel growled with his Grinch fingers nervously drumming, I must find some way to keep Christmas from coming, but how? I mean, if you're talking about working on Christmas and Christmas Eve, I feel like you want Ebenezer Scrooge,

not the Grinch. I feel like maybe— All mixed metaphor. I'm probably going to be wanting Christmas Day off. Well, I wonder if Jack Smith's heart will grow three times its size, and we'll see. If it does, we'll cover it. All right. Harry Littman, a former U.S. attorney and deputy assistant attorney general and a law professor, thanks so much for joining us. My pleasure.

Thanks for having me. Domenico Montanaro, thanks as always to you. As always, thank you. We'll be back next week with another episode of Trump's Trials. Between now and then, you can follow more of NPR's political coverage from Domenico and Kerry and the rest of the NPR politics team in daily episodes of the NPR Politics Podcast. And before we go, a quick but truly sincere thank you to our Trump's Trials Plus supporters, as well as anybody who listens who donates to public media.

After all, public media means you, the public, supporting it. Everything you hear from the NPR network could not exist without your support. So for anybody listening who isn't yet a supporter right now is a great time to change that and for you to get invested in creating a more informed public, which, after all, is our entire mission here at NPR. Plus, if you like perks, think about this. Trump's Trials Plus offers sponsor free listening. You could also make a tax deductible donation to your favorite local public radio station or stations in the NPR network. And what really matters is that you are part of the community that makes this work possible. Because journalists across the NPR network need resources

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Our technical director is Kwesi Lee. Our executive producers are Beth Donovan and Sammy Yenigan. Eric Maripoti is NPR's vice president of news programming. I'm Scott Detrow. Thanks for listening to Trump's Trials from NPR.