Jack - Bonus | Immunity, They Wrote (Allison on Sunday Extra)

Episode Date: July 9, 2024

Allison was a guest on ABC Radio National | Sunday Extra to discuss the immunity rulingCheck out more from Australia!Sunday Extra presents a mix of national and international affairs, analysis and investigation with Julian Morrowhttps://www.abc.net.au/listen/programs/sundayextra Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJ Brian Greer’s Quick Guide to CIPAhttps://www.justsecurity.org/87134/the-quick-guide-to-cipa-classified-information-procedures-act/ AMICI CURIAE to the District Court of DC https://democracy21.org/wp-content/uploads/2023/08/Attachment-Brief-of-Amici-Curiae-in-Support-of-Governments-Proposed-Trial-Date.pdfGood to know:Rule 403bhttps://www.law.cornell.edu/rules/fre/rule_40318 U.S. Code § 1512https://www.law.cornell.edu/uscode/text/18/1512 Prior RestraintPrior Restraint | Wex | US Law | LII / Legal Information InstituteBrady MaterialBrady Rule | US Law |Cornell Law School | Legal Information Institutehttps://www.law.cornell.edu/wex/brady_rule#:~:text=Brady%20material%2C%20or%20the%20evidence,infer%20against%20the%20defendant's%20guiltJenksJencks Material | Thomson Reuters Practical Law Glossaryhttps://content.next.westlaw.com/Glossary/PracticalLaw/I87bcf994d05a11e598dc8b09b4f043e0?transitionType=Default&contextData=(sc.Default)Gigliohttps://definitions.uslegal.com/g/giglio-information/Statutes:18 U.S.C. § 241 | Conspiracy Against Rights18 U.S.C. § 371 | Conspiracy to Defraud the United States | JM | Department of Justice18 U.S.C.  § 1512 | Tampering With Victims, Witnesses, Or Informants Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJCheck out other MSW Media podcastshttps://mswmedia.com/shows/Follow AGFollow Mueller, She Wrote on Posthttps://twitter.com/allisongillhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspodAndrew McCabe isn’t on social media, but you can buy his book The ThreatThe Threat: How the FBI Protects America in the Age of Terror and TrumpWe would like to know more about our listeners. Please participate in this brief surveyListener Survey and CommentsThis Show is Available Ad-Free And Early For Patreon and Supercast Supporters at the Justice Enforcers level and above:https://dailybeans.supercast.techOrhttps://patreon.com/thedailybeansOr when you subscribe on Apple Podcastshttps://apple.co/3YNpW3P

In the aptly named case of Trump v the United States, America's Supreme Court, by a majority this week, decided that presidents and former presidents are immune from criminal prosecution in certain circumstances, which in plain terms means immunity for a lot of their official acts. While it was expected that some presidential immunity would be confirmed, the sweeping breadth of this decision was a bombshell at the end of the Supreme Court term and it has profound implications for the criminal cases that Donald Trump is currently facing and for the ages. Alison Gill is the co-host of Jack, a special counsel podcast which has been following all the machinations of special counsel Jack Smith's prosecutions and I have no doubt that there is an all-time bumper episode of the Jack podcast which is about to drop soon but I'm very

pleased to say that Alison Gill joins us now on Sunday Extra. Welcome back, Alison. Thank you so much, Julian. It's good to be here. Well, I suppose saying Trump versus the United States doesn't really narrow it down these days. But could you remind us which case against Donald Trump it was that came to the Supreme Court and how it got there? Yeah, these are the four charges brought by special counsel Jack Smith against Donald Trump

for his role in preventing the peaceful transfer of power and trying to overturn the results of the 2020 election, which he lost. The four charges included defrauding the United States, a conspiracy against our right to vote and have our vote counted, and of course obstructing an official proceeding and conspiracy to obstruct an official proceeding. That is the case

we're talking about. Donald Trump filed saying he was absolutely immune from any oversight or criminal prosecution in that case. And because immunity is considered what they call an interlocutory appeal, which means it must be decided before the case goes to trial. The Supreme Court decided to take this up and create a rule for the ages that essentially turns our presidents into kings. Could you summarise what I think we can fairly say is the new law of presidential immunity as set out in the majority judgement that was written by the Chief Justice John Roberts.

Yep, there's basically four rulings here. We go over those on the Jack Podcast this Sunday as well. And the first ruling is that presidents are absolutely immune from core presidential or executive Article 2 powers, which has always kind of been the case. Number two, they are presumptively immune from official acts. And number three, they are not immune for private acts. So they've remanded this case down back to the lower court to decide what in this indictment are official acts, core presidential executive power acts, and what are private acts. So that has to be re-decided. And then that can be appealed all the way back up to the

Supreme Court again. And then they had a fourth finding, Julian, which is probably the biggest surprise to all of us, that no evidence will be allowed at trial if it has to do with their core executive or official duty powers as president. So if you accept a bribe in exchange for a pardon, say you aren't necessarily charging the fact that he gave the pardon because that is a core presidential power. You're not charging him for that, but you do need that evidence to come in to prove that he accepted a bribe corruptly. So as Amy Coney Barrett actually said in her dissent, she said, look, you can't prove the

quid without the quo in a quid pro quo. So she disagreed with that, the majority on that particular bit of it. And that's what's going to make these trials a little more murky and a lot more difficult. There was also another concurrence that wasn't part of Chief Justice Roberts' main decision. That's Justice Clarice Thomas. He had a bit of a time bomb to the bombshell. What did the Thomas decision say? Okay, so just out of nowhere and nobody was asking, Clarence Thomas decided that he would

throw a line in there saying that he doesn't believe that Jack Smith is even Appointed or funded appropriately or constitutionally? Which is an argument that Donald Trump is making in another criminal case down in Florida the one where he retained national defense information in the classified documents and and obstructed the investigation there and so Trump and obstructed the investigation there. And so Trump taking advantage of that has filed a motion with Judge Eileen Cannon down in Mar-a-Lago saying, hey, you need to put the whole thing on hold here. First of all, because I'm immune,

according to the Supreme court, but also they've been arguing, they had a little mini trial with oral arguments down in her courtroom about whether or not the special counsel, Jack Smith was constitutionally appointed and funded. And like this has come up in multiple cases. They brought it up with Hunter Biden for the special counsel, David Weiss, investigating

him. They tried to get it thrown out on this. They tried to get Manafort, tried to get his case in the Mueller investigation thrown out on this Everyone has failed at this throughout the ages. It's pretty well known law But that is where he is now going based on Clarence Thomas's out of the blue Statement on whether he thinks Jack Smith is appropriate appropriately appointed and funded So it's it's pretty bizarre that he decided to bring that up out of nowhere. Yes, we are speaking with Alison Gill, host, co-host of The Jack, a special council podcast about the implications of the Supreme Court decision of Trump v United States.

And I suppose it really then begs the question, Alison, of what is going to become of all of Jack Smith's prosecutions now. Has there been any response from the special counsel so far? Not yet. We talk a little bit with Professor Steve Vladeck on this Sunday's episode of Jack about that because I asked the same thing, how long does it take Supreme Court to issue a mandate? And he told me that by August 3rd, I think they have 32 days, the Supreme Court to issue a mandate. And he told me that by August 3rd, I think they have 32 days, the Supreme Court,

to send this case back down to the Circuit Court of Appeals, who then can immediately remand it to Judge Chetkin. And then she can probably put an order calling out for briefing about what kind of evidentiary hearing we're gonna have this summer to decide what parts of this indictment can go forward. Now, in the meantime, nothing stops Jack Smith from filing, making a request for that hearing. However, as we know, this case has been stayed pending the immunity ruling and Jack Smith earlier

had continued to make filings and Donald Trump filed to force him to stop doing that because everything is supposed to be on pause. And Judge Chutkin said, you are right, Donald Trump, everything needs to stop. There needs to be no more filings. And if you want to make a filing, you need to seek leave of court or permission from me specifically to make that filing.

So perhaps we'll see Jack Smith asking Judge Chutkin for permission to file a potential hearing schedule or witness lists or something like that for this evidentiary hearing that we should get this summer, or perhaps he will wait until she puts out the minute order calling for those briefings. We'll have to wait and see. And indeed we'll have to wait.

And clearly everyone will be waiting until after the presidential election, because there's just no way that any of Jack Smith's prosecutions can come to substantive hearing before the election now, is there? Because the process of working out what are official acts and what aren't official acts is preliminary and is going to take a long, long time to work out. Yeah, absolutely. But the hearing I'm talking about is a pret-trial hearing, an evidentiary pre-trial

hearing in Judge Chuckin's court to determine what parts of this indictment and what evidence can be used at the actual trial, which like you said, will not happen before the election. But I think we will get a pretty substantial hearing, perhaps with witness testimony from folks like Cassidy Hutchinson or former vice president Mike Pence about this evidence. So I think the American people may get to see some of Jack Smith's evidence through this hearing, this evidentiary hearing, before the election. What did the minority say in dissent? I mean, there were, it was a pretty strong dissent from Justice Sotomayor who began by saying, because our constitution does not shield a former president from answering for criminal and treasonous acts, I dissent and noticeably

didn't use the word respectfully. What do you make of the dissenting opinions and do they have any significance in the short term? Other than just getting their thoughts out to the public, they really don't make that much of a difference, although they could be cited in evidentiary hearings and briefings from Jack Smith. I imagine Jack Smith will, for example, quote Amy Coney Barrett's dissent about evidence in his filings and in the hearing

that we make it this summer. But I mean, it's really, it was very strongly worded, you know, with fear for democracy, I dissent. And, but other than those very strongly worded dissents, that's kind of all we all we can all we get, because it really doesn't make a difference. Now I know that there's a Democratic member of the House who wants to introduce a constitutional amendment overturning what the Supreme Court has done. But that is a very big long shot. There really isn't much we can do about this ruling other than making sure we elect presidents who won't abuse it. It certainly seems that relations within the Supreme Court are more than icy at the moment.

The blistering sort of back and forth between the majority and the dissenters was more intense than I think anything I've read before. Yeah, I agree. And you'll hear if you listen to the Jack podcast this week, you'll hear Professor Vladek talk about how Roberts, who was our Chief Justice, used to seem to care about his legacy, used to care about getting more closer, like close to unanimous decisions, rather than these six, three or five, four, if you count Barrett type decisions. But in the last year or so, he has gone apoplectic, overturning the SEC's ability to find people requiring jury trials instead.

I'm gutting the Chevron deference, which gives federal agencies the ability to interpret our laws instead of the Supreme court itself. Uh, just ending affirmative action, uh, overturning row, these kinds of things, because Roberts was on the other side in row. He really didn't want row to end. Um, he ended up going along with the majority, but, uh, that's, you know, a whole other hour we could talk about Roe. But he has pivoted quite a bit toward this extreme right wing,

I would almost say insurrectionist arm of the Supreme Court in the last year, in the last term specifically. And again, like I said, Professor Vladek has a lot of really great examples that he talks about with us on the show. Yes, a bumper episode of the Jack special counsel podcast dropping on Sunday. Well worth following in its incredible detail. We've talked about the two Jack Smith cases and the consequences of Trump v United States for that. But of course, Donald Trump's already been convicted in New York on felony charges and the sentencing's now been put off because

of the Supreme Court decision. What do you think are the implications of the Supreme Court case for Donald Trump's New York conviction? See, I'm with Ambassador Norm Eisen on this. He wrote an opinion piece for CNN where he talks about the potential implications of the Manhattan DA's case, where he was convicted of 34 felony counts and says that it's pretty moot. And he is a stopped or barred from bringing up immunity again, because during that case earlier on he filed for immunity, was rejected by both the federal and the state court. And then he abandoned the appeal.

And when you abandon your appeal, you kind of waive your right to bring it up again. So we'll see what ends up happening. I know that the sentencing has been postponed from July 11th to September 18th. And I think that the judge in this case, Judge Marshawn will make quick work of any motion from Donald Trump to try to throw these charges out based on what the Supreme Court has decided because all of this behavior took place before he was president of the United States. So it sounds like you still see two sort of major possible developments before the presidential election,

the sentencing and then also these hearings about exactly what is an official and not an official act. And those things will happen before the presidential poll. What do you think the implications of this Supreme Court decision are for the presidential election? I think they're quite big. I think that a lot of people were already had made up their minds after January 6th and after Roe, and we're going to vote for democracy. Because as we know, as we've seen outlined in Project 2025,

Donald Trump poses a dire threat to democracy here in the United States. And so I think that now giving presidents immunity will, will give voters an additional piece to think about when they try, when they go to the polls to elect who they are going to send to the white house. Do they want to send somebody who is a one man crime wave and a convicted felon who will definitely take advantage of and exploit this immunity ruling or do we want to send Joe Biden who has been probably one of, he's gotten more done than any president in my lifetime. That's for sure. But he has also said explicitly, I will not abuse that power if you send me

back to the white house. And so I think it can't be anything other than bad for Donald Trump as far as the election goes with the immunity ruling. Alison Gill, it's been great speaking with you. Thank you so much for joining us again on Sunday Extra. Julian, it's been a pleasure. Anytime you would like to talk, let me know. Oh, well, we'll be back then. And do tune in to the new episode of Jack, a special council podcast. It'll be an all time bumper episode that drops on a Sunday.

And Alison Gill, I guess there is co-host of the Jack podcast and also a founder of the MSW Media Network, a female-led podcast network of super smart, irreverent podcasts which drop daily. It's a fantastic network and well worth checking out.