Jack - Episode 74 | This is Not the Vehicle

Episode Date: April 28, 2024

The Supreme Court has heard arguments in Trump’s claim of absolute immunity. We’re going over the highlights and lowlights from the hearing. Including Justice Alito’s misreading of the DC Circuit’s ruling.Plus, a listener question, and more!Subscribe to AG's Substack for freemuellershewrote.substack.comMay 7 with Andy McCabe and Brian Greer: https://signup.e2ma.net/signup/2000418/1968319/ 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

MSW Media I signed an order appointing Jack Smith. And those who say Jack is a fanatic. Mr. Smith is a veteran career prosecutor. Wait, what law have I broken? The events leading up to and on January 6th. Classified documents and other presidential records. You understand what prison is?

Send me to jail. Welcome to episode 74 of Jack, the podcast about all things special counsel. It is Sunday, April 28th, 2024. I'm Alison Gill. And I'm Andy McCabe. All right, we made it to the April 25th Supreme Court oral arguments over Trump's interlocutory appeal on immunity. And we are going to cover those arguments today.

Yes, we also have the released redacted witness statements from the original Mar-a-Lago motion to compel. We have a backdrop of Donald Trump falling asleep in the courtroom during his first criminal trial for 2016, that election interference trial. And Andy, we're gonna cover a lot of stuff that happened this week on next week's episode because this episode is dedicated to these Supreme Court immunity oral arguments. And you know, thinking about Donald Trump being in a criminal courtroom tees us up perfectly for this week's installment

of Good Week, Bad Week. Yes, Good Week, Bad Week. So I don't know. From my perspective, it's a little easier to find bad week examples. So I'm going to go with those. Start with bad week for Trump simply because the New York criminal case is underway. And

we have heard some, I think some damning testimony from some witnesses, particularly David Pecker. Also not good to be seen sleeping in your own trial. Sure, it's not the first time it's ever happened in court, but still not great for an elderly gentleman who's running for president. No, especially if your critique of your opponent is by calling him sleepy Joe Biden. As Chris Hayes said on MSNBC, if that's your critique, you have one job. Yeah, stay awake. Stay awake, buddy. Stay awake.

So that's not great. Bad week also for Jack Smith, I'm going to say, and we will get into the nitty gritty of the reasons for that when we talk about the Supreme Court oral arguments. But boy, it doesn't, it doesn't appear to be going in a great direction for the special counsel. Yeah. Or this trial, to be honest. But I'm going to, I'm going to add onto your bad week for Donald Trump because he has been named this week as an unindicted co-conspirator in two state investigations, Michigan and Arizona. And a bad week for pretty much all of his friends as well, many of them indicted by Chris Mays, the attorney general

in Arizona, who's been there since 2022. Keep in mind her investigation is only about a year old, do keep in mind her investigation is only about a year old, about a year and a half old. So compared to the rest of the investigations, it's fairly new, but bad week for the fraudulent electors. Let's just put it that way. Unless you're a Supreme Court watcher, because some of the justices seem to think that being a fraudulent elector is an official act, but we'll get to that. Yeah, we'll get to that. So, all right. On the Good Week side, I'm going to say, Good Week for us and also the lucky golden ticket

holder listeners of the Jack podcast who were able to join us in DC last Saturday night for our kind of special event, which I thought was a gas. We had such a good time, met so many people from all over the country who came here or came to DC rather to see us and others like Pete Strzok and Glenn Kirchner and folks who are kind of in that podcast space.

So really good time, I had a blast. Yeah, they came from all over the world. We had some folks from Australia there, some from the UK. It was great to see everybody and interact with everybody. So thanks for showing up. We'll be back August 16th, by the way, Andy, you and me and Pete and Glenn, we're going to do a show at the Hamilton in DC. For real. And we'll also have an event in May, right? May at the Schar School of George Mason University. May 7th, I believe is the date for that one. It's going to be you and I and Brian

on stage being interviewed by we're not 100% sure who at this point. We're still lining up a special guest for that. But keep plugged in. Plugged in folks if you're in the area and looking for not really tickets, but if you want to get on the list to attend that in person event, we'll have more information coming out on that in a short time. Yes. Brian Greer, our Secrets and Laws guy, our SEPA expert. Former, I think, wasn't he Chief of Staff to General Counsel at the CIA? Pretty secret stuff. Yes, yes, he was. And Mr. SEPA, I like to call him. he's he's the master

of all things Confidential Information Procedures Act so good to hear from him. And for us Mr. Sipa goes down in the books as a cool nickname but I'm not sure how that plays in the world. In the world where nerds are king Mr. Sipa is a hell of a title so there you go. and a good week for me because I started my Substack. I finally did it now that PostNews is closing down. So I would be eternally grateful if you would subscribe for free at MuellerSheWrote.Substack.com. I've already put up a piece to discuss what we're about to discuss. So look for that. And again, all my content there is free. So I appreciate your subscribing.

Excellent. All right, so we kick it off. Yes, let's kick it off. And let's kick it off, if I might, with a little background. Okay. A grand jury returned an indictment of Donald Trump last year pursuant to special counsel Jack Smith's investigation on four felony counts. That's Title 18 US Code 371 defrauding the United States, 1512 C2 obstructing an official proceeding, 1512 K conspiracy to obstruct an official proceeding, and 241 conspiracy

against rights. In this case, conspiracy against our rights to vote and have our votes counted. Now, Trump filed a motion to dismiss these charges based on absolute presidential immunity, which is an interlocutory appeal, which means it has to be decided before the trial. And so that is very important kind of a piece here. Otherwise, we would be having a trial right now. It was supposed to start March 4th. Yes. So anticipating this delay tactic,

Jack Smith crafted his indictment to stand on private acts only, meaning Trump's criminal behavior wasn't part of his job as president. And any official acts Trump took to further his private means are only evidence of his knowledge and intent and not anything that should be held criminally culpable for. He should be held criminally culpable for. Of course, their main argument is he has no immunity here for official acts or otherwise. But if you do decide that there's some sort of presidential immunity, it doesn't apply

here. These are private acts. That's right. He was a candidate for office. Nixon v. Fitzgerald held that a president can be civilly sued for private conduct, but not official acts. And you'll hear a lot of reference to Fitzgerald in this week's oral arguments. Now the district court, that's Judge Chuckin, denied Trump's immunity motion. He appealed to the DC Circuit Court and Jack Smith then asked the Supreme Court to take the case before the Circuit Court of Appeals. The Supreme Court said, we'll think about it quickly,

but then quickly denied Jack Smith's bid to have the Supreme Court here at last December. The appeals court quickly then ruled against Trump's immunity, three to nothing, and Trump appealed to the Supreme Court. And there it sat for weeks, Andy, for weeks as an application for a stay, to stay the mandate issued by the lower court, the appeals court. And it was during those few weeks while we were waiting to see if the Supreme Court would deny Trump's

application for a stay while they considered granting cert or certiorari, which means taking the case. If you grant cert, you take the case and hear arguments. And it was during those few weeks, I took it upon myself on a Saturday night, because I like to party, to write a mock denial for the Supreme Court. Like I wrote it up for him. You got to find a new Saturday night plan. That's all I'm saying. I don't know. Me and Mr. got to find a new Saturday night plan. That's all I'm saying. I don't know. Me and Mr. Sipa think it's pretty cool.

That's what I'm saying. That is exactly what I'm saying. Fine. But I wanted to let him know, hey, here's what you could say. And that was part of my dream scenario, if you'll remember, that the Supreme Court would deny the stay and let the trial continue based on the strong ruling of the Three Judge Circuit Court panel. And that's important because it belies Chief Justice John Roberts' motives for granting cert and holding arguments in the first place. Here's what I mean.

In Trump v. Benny Thompson, Trump asked the court to block the January 6th Committee from getting certain documents based on executive privilege. Supreme Court had never decided whether a former president has executive privilege over documents. Correct. And so they thought it was a new novel and important question.

Chief Justice John Roberts denied that stay because, quote, the Court of Appeals had no occasion to decide these privilege questions because they would have quote concluded that President Trump's claims would have failed even if he were the incumbent the current president because the committee's interests in the documents outweighed any privilege including the executive privilege they said quote any discussion of the Court of Appeals concerning Trump's status as former president must therefore be regarded as non-binding dicta." Now, my Moxgodis ruling on immunity was based on my reading of that ruling in Trump v. Thompson and the clear ruling by the Circuit Court in D.C. on immunity.

I wrote, quote, the application for stay a mandate pending review presented to the chief justice and by him referred to the court is denied. The questions whether a president enjoys immunity from criminal prosecution for official acts and whether the impeachment judgment clause and principles of double jeopardy foreclose a criminal prosecution of a president who's been impeached and acquitted by the Senate for the same and or closely related conduct that underlies the criminal charge, are indeed unprecedented and raise serious and substantial concerns.

The Court of Appeals, however, had no occasion to decide these questions because it analyzed and rejected President Trump's immunity and double jeopardy claims, quote, specific to the case before us in which a former president has been indicted on federal criminal charges arising from his alleged conspiracy to overturn federal election results and unlawfully overstay

his presidential term, unquote. That's from US v Trump. And then went on to say saving for another day, whether immunity from criminal prosecution should be recognized in any circumstances. Because the Court of Appeals concluded that no immunity attaches to a president's commission of federal crimes to subvert the electoral process, it's not necessary to determine whether the double jeopardy claims or immunity for official acts applies in any other situation. Any discussion about future presidents or

official acts is non-binding dicta. Now, this is your mock order from the Supreme Court in this case based on the example laid out to us in Trump v Thompson and of course the actual DC Circuit opinion on the immunity issue. Yep. This is my whole big fake thing. I was like, this is what you guys should say, because this is what you said in Trump v. Thompson. So in Trump v. Thompson...

And basically, your theory here is in Trump v. Thompson, the court said, hey, we don't need to address, we're not going to stay the mandate. We're not going to put a stop to this whole proceeding to decide this because it's not necessary. Right? That the circuit court didn't address the wider issue and therefore the same would apply under these circumstances in the immunity argument. Yeah, exactly.

In Trump v Thompson, SCOTUS said, we don't have to decide if future former presidents have executive privilege over documents. And in the immunity case, they should have said, we don't have to decide if future former presidents have executive privilege over documents. And in the immunity case, they should have said, we don't have to decide about official acts for future presidents because the appeals court only considered this case. And in this case, there's no immunity. Now, all of this is to say that in this case, the case of immunity, Chief Justice Roberts either granted cert on a misunderstanding of what the appellate court ruled or he knew what the appeals court actually said and is misrepresenting it in order to take the case anyhow? I'm not sure. But remember, the appeals court ruled, quote, specific to the case before us. We are ruling specific to the case before us in which the former president is indicted on criminal charges arising from the alleged

conspiracy to overturn federal election results and unlawfully overstay his presidential term. But during arguments this past Thursday, Chief Justice Roberts said the appeals court ruled that there's never immunity for any president's official acts. Now or ever. And that's just incorrect. And if he actually wrongly thinks that, then no wonder he granted cert. But if he knows that's not the case, like he did in Trump v. Thompson,

then we have to ask why he's misrepresenting what the appellate court decided, unless I'm reading the appeals court decision wrong, but it's pretty clear. Now, something else he got wrong about the appeals court ruling. He said the appeals court decision wrong, but it's pretty clear. Now, something else he got wrong about the appeals court ruling. He said the appeals court ruled that a former president can be prosecuted for his official acts

because the fact of the prosecution means that the former president has allegedly acted in defiance of the laws. And Chief Justice Roberts asked Michael Dreeben, the lawyer who was arguing for special counsel, if he agreed with that statement. Dreeben said it sounded tautologically true. Now, tautology is a circular argument, right?

And then Roberts said, it's the clearest statement of the appeals court's holding, which is why I'm concerned. Justice Roberts says that was the appeal, the appellate court ruling, that a president can be prosecuted because he's being prosecuted. Which on its face seems ridiculous. And it is. That's not, that's not the kind of logic that forms the basis of an appellate court ruling. No.

And Roberts said that that's the clearest statement of the court's holding. But it's completely wrong. Here's what the appeals court actually said. They said the separation of powers doctrine necessarily permits the judiciary to oversee the federal criminal prosecution of a president for his official acts because the fact of the prosecution means the president has allegedly acted in defiance of Congress's laws. They were quoting Marbury in a jurisdictional question. They were trying to say, here's why the judiciary can hear this case.

Right. Exactly. Justice Roberts took it to mean this was their ruling. Right. On immunity. So we're going to go over the arguments today, but I really wanted to make clear that we're here today because either of a gross misinterpretation of the appeals

court ruling by the Chief Justice of the United States Supreme Court, or because I don't know if this is his way to justify granting cert. And to me, I mean, we're either here because of incompetence, arrogance, or a corrupt intentional delay tactic. And none of those options gives me a lot of confidence about how the court will rule.

Trump's goal, like we've said for a long time, is to delay, and the Supreme Court already handed him that win regardless of how they rule totally totally agree and Beyond that at least three of the justices now seem keen on overturning Any conviction on appeal kind of McDonald's style member Ken McDonald? Mm-hmm his Excuse me Bob, but who's Ken? He's just Ken. He's Kenan.

Yeah. Anywhere else, he'd be a 10. That's right. Bob McDonnell, his conviction by Jack Smith, by the way, was overturned by the Supreme Court for being unintentionally or intentionally vague or some constitutional vagueness, something the statute isn't clear enough. And it seemed like at least three of the justices here, Kavanaugh, Alito, and Thomas are kind of angling for this, hinting at the same thing.

Yeah. I mean, I think that's a really interesting take. And to be fair, we're doing a little bit of tea leaf reading. This was the argument. We don't have the holding yet. So we don't know exactly what they're going to do or what sort of logic or reasoning they'll base their holding on. But nevertheless, it's a solid three and a half hours of arguments.

And I think there were some really interesting things that were undeniable. You know, I think I was surprised by the tone and the direction of the questioning. Specifically, it didn't seem that a single justice on either side of the court took a position that supported Trump's argument for complete immunity. That was a complete loser from step one. And I think

that was predictable, right? Most people, even if you listen to the reporting, Trump's own lawyers were saying, we don't have a chance of winning on this complete immunity theory. So that wasn't too much of a surprise. But one of the things that really jumped out at me is several of the justices, and I think specifically Gorsuch, Kavanaugh, and Alito, when questioning Drebin, they all reacted to Drebin's answer in the same way, by making it clear, and a couple of them, Gorsuch and Kavanaugh for sure, repeating, and Alito really, all three of them repeating several times, that they did not want to discuss, argue, or refer to the facts of, as they called it, this case,

but rather wanted to argue about hypotheticals that were not presented on the record here. Okay, so, and to be clear, arguing hypotheticals is pretty typical for Supreme Court justices and law professors everywhere. But here, it eventually seemed like an implicit admission that the facts of this case were basically far outside the bounds of any arguable acknowledgement of immunity.

And then, you know, and they were really trying to litigate on some different ground. And I think Gorsuch went so far as to say the quiet part out loud when he insisted, and I quote, we are making a rule for the ages here. Yeah. Right? So we're not addressing this case, which they are absolutely supposed to do. They are not keeping themselves to the arguments and questions that were actually presented, which was just for a bunch of jurists who see themselves

as strict constructionalists, originalists, you know, textualist kind of purity in their approach to interpretation seemed totally hypocritical. So all this just made clear to me that the majority of the justices Likely granted cert and jumped into this thing because they wanted to create new law, right? They wanted specifically to give birth to a newly defined presidential power in the form of some type of immunity from criminal liability for presidents of the United States. Now, whether they did this based on arrogance, politics, or through some some blind

commitment to, you know, the unitary executive and preserving presidential power, the result is essentially the same. And what they've done here is basically already essentially granted Donald J. Trump immunity from his attempt to overturn the results of the 2020 election. They've done that by exceeding to his desire for delay. They waded into these waters in such a lackadaisical way that will almost ensure that he is never held accountable under the federal criminal code if he's elected again. Yep. Yeah. And it's interesting when you talk about wanting to jump in here and give new birth to a newly defined presidential power. Because I think it was Kavanaugh who brought

up US v Nixon and how they created what executive privilege is under Article 2, the Supreme Court did. Yeah. Right? And I feel like they want to have the power to create power. It feels a lot like that, especially since you specifically mentioned that. It does. It feels philosophical. It feels kind of ideological.

It does not feel like legal analysis. It's almost like, dare I say, a very activist court approach. These guys would get sick if they heard anyone refer to them as activist judges because that's the conservatives would because that's like their antithesis of judicial restraint and everything else. But that's essentially kind of what they've done here. They could have declined to take the case at all, said nothing, walked away. They should have.

They should have. Or they could have taken it and very quickly affirmed the results of the DC Circuit. On these facts, as you say, in this case specifically, on the very narrow grounds that the DC Circuit denied the motion for immunity. But they didn't. They chose to go this way and they did it at an incredible... They said, well, we're going to handle this on an expedited schedule.

This is not the sort of expedited schedule that this issue in this case calls for. Which a huge number of people in this country are watching closely and giving great consideration too. Wherever they sit on the political spectrum. This case means a lot to everyone. Whether you're a supporter of Donald Trump's or not, people want to know how this thing is going to work out. And in all likelihood, we can't say perfectly, but in all likelihood, you're not going to

know. No, we won't. When the election day rolls around. We won't. And you know, if all they were looking to do is to create this new power, they would immediately allow this trial to continue and say, while we create this new power, because one doesn't have anything to do with the other. But the fact that they, if they don't, then that kind of brings the idea of perhaps they're

helping a little bit with the delay in there. Yeah. I don't know. It's hard to imagine how they could split that baby. They're not going to say, no, Trump's motion is denied, no immunity for you here. But we've come up with this new test, this new legal Standard for determining when Presidents get you know, you can't have both So what they're most likely gonna do is send it back, but we'll get into the details of all that in a minute Yes, we will get into the meat, but we do have to take a quick break everybody stick around. We'll be right back Welcome back. Okay, let's dive into the arguments.

The first hour the justices questioned counsel for Donald Trump, a gentleman named John Sauer, or the final two hours were spent questioning Michael Dreeben, who is counsel for the government. The government, of course, in this case, is the special counsel Jack Smith's office. And I should say that Michael Dreeben, just to put the context on it, Michael Dreeben is an unbelievably respected legal figure in DC. He's been at DOJ, I think, most of his career.

He's spent a long time in the Office of Legal Counsel, which is like the kind of big counsel, which is like, you know, the kind of big head shed of super smart lawyers at DOJ that basically set the course of what the law means on anything that hasn't been decided by the Supreme Court essentially. And he is an expert appellate lawyer. You can really see the difference in the way they question Sauer versus the way they question Dreven. Sauer and they were skeptical. Do you like blue or green? Yeah. And then they're like, all right, going back to the

dicta Fitzgerald and Mitchell, what do you think of this or that? Very different approaches. Keeping Sauer to one word answers and a lot of the questions were, you can't possibly believe X, can you? And they, you know, he would say, well, yes or no, but even it was all kind of jovial and you know, it was, it was a conversation between more of a conversation between equals. So, and they know him because he, I think has, I think he's argued more cases in front of the Supreme court than anybody else. He's been there many, many times. He was, and he's the kind of guy that just attaches himself to these investigations that

he thinks are significant like that. That's how he was on Mueller's team in the Russian investigation. And then he appears again here. So in any case, so let's start with the themes and the questions for sour so most of the questions focused on official acts versus private acts. And as we discussed in previous episodes jack smith crafted his indictment. Specifically to survive this argument by focusing on the fact that trump was acting as a candidate for office in his capacity as a private citizen, conspiring with other private citizens and private lawyers and allies to achieve a private benefit. Now keep in mind that Sauer is asking for absolute immunity

for official acts based on a misinterpretation of the executive vesting clause and the seminal case Marbury versus Madison. Now he'd been contending that everything Trump is charged with are official acts. But interestingly, Justice Amy Coney Barrett read through the acts that Trump is accused of committing in the indictment and got Sauer to admit that many of them were actually private acts. In fact, when Justice Kagan asked Sauer if a president ordering the military to stage a coup would be an official act, Sauer said yes. She also asked if assembling a known fraudulent slate of electors is an

official act, and Sauer again said yes. I was just like, it's incomprehensible to me, but he said yes. So Kagan concluded that line of questioning with, the framers did not put an immunity clause in the constitution. She said they knew how to, and they didn't. The founders were acting against a monarch, which I thought was an incredibly pithy way to put it I really am wondering if she's listening to Jack. Hello. Hello, Justice Kagan. Hello. Hello Yeah, and so at that point it had been established that Sauer's position is That official acts are immune and private acts or not So we started out with total absolute immunity for anything. Then it was immunity, absolute immunity for official acts.

And that's where we are now. In private acts, no immunity. And that some of what Trump did were private acts. But that the case has to be remanded back to the district court, Judge Chutkin, to decide what parts of the indictment are official acts and what parts are private acts. Those rulings or whatever she decided would be subject to appeal, which would delay the case

past the election for sure. And that's what Sauer wants here. Now, Dreeben says that the district court doesn't need to adjudicate that and that the issues can be solved simply with jury instructions. And we'll get into those arguments later, but that's the crux of the case is established in the first hour of the proceeding. Yeah. So, so, uh, Sauer backpedaling, right? He kind of, he kind of abandoned his biggest, most, uh, maximalist argument about absolute immunity. Had to, had to split the baby with private versus official acts, then had to admit that some of the acts

were actually private, but it doesn't matter because his fallback position of sending all that stuff back to the trial court to be adjudicated and litigated and appealed and appealed again, that gets him what he wants, which is no trial pre-election. Yeah. And some standout moments for me in the Sauer questions are when Justice Jackson, when she was addressing something Sauer said in his opening remarks that the ability to prosecute

a former president is a new thing. It's new in the history. We've never had it happen. Justice Jackson said, you suggested a lack of immunity and the possibility of prosecuting a former president is like an innovation. But I understand it as the status quo that every president has understood he's not immune from prosecution. So it seems to me that you are asking for the change here. And Sauer responded that he sees it in the opposite, that former presidents have enjoyed immunity thus far and if the court takes that away, it will chill future presidents from

doing their jobs freely. And Justice Jackson responded, quote, if all presidents have enjoyed immunity this whole time, then what's up with the pardon of Nixon? Sauer said that what Nixon did though was a combination of private acts and official acts. Well yeah that's what we're dealing with right now. Some of his actions were private and some were official and Sauer has conceded that. Now after some future debate they narrow the argument even further. First it was official acts versus private acts and everyone agrees that private acts aren't immune. Now they move on to official acts and private acts, and everyone agrees that private acts aren't immune. Now they move on to official acts and they discuss what part of official acts, what kind

of official acts are immune. For example, the fraudulent elector scheme, falsifying certificates would be a private act, but calling the state officials to pressure them would be an official act. And Andy, that brings up how and whether you can even separate them out. Yeah, that gets you, as we'll see, particularly with questioning from Roberts and Thomas, a very thorny place where it's almost impossible to disaggregate the two, right? And this whole thing may actually hinge on what Chief Justice Roberts does. And frankly, he was pretty quiet, except when it came time to ask about

separating official acts and private acts he raised the hypothetical in which a president appoints an ambassador but takes a huge suitcase full of money in exchange for that appointment now appointing an ambassador is a core article two presidential official act right uh it is it is it's explicit in article two of the Constitution that the president is the only person who has the authority to appoint ambassadors. But bribery is illegal. So Thomas says, giving someone money to appoint an ambassador is illegal.

But if you expunge the official part of appointing an ambassador, how can you go forward? Roberts compared it to a one-legged stool. Essentially, what he's saying here is there's no way you can possibly prosecute a president, even if what you're focused on is a combination of official act, which you can't be prosecuted for, and an obvious illegality, which he should be prosecuted for, because once you wash the official part out, you don't have enough evidence to prove the crime. That's what he's saying. It's like by separating, it's one thing that he did, part of which was official part was criminal. When you take out the official stuff, there's not

enough facts and evidence left to prove the crime. Yeah. And when I was listening to this, as I read through the transcript, it was hard for me to tell whether Roberts was supporting the idea of charging the president and not separating these out or whether he was supporting the idea of gutting the indictment. But when I went back and read my notes, Andy, it said, Robert says, giving somebody money to appoint an ambassador is illegal, but if you expunge the official part, how can you go forward? And I wrote, ha ha ha ha, yes, with lots of S's at the end and

a bunch of exclamation points. So the tone and tenor must have seen, because I was listening live, the tone and tenor must have indicated kind of like an indignance. Like, how do you even charge bribery if you can't? Like that's a crazy result. Right, that's how it seemed. Right, but Alito was a little less coy, right? He said, if the official act is expunged, should the prosecution not be able to use those official

acts as precedent? And to this, Sauer says, absolutely, because he wants this remanded back to Judge Chutkin to expunge what she thinks are official acts so that Trump can then appeal her decision and run out the clock. Right? and then appeal her decision and run out the clock. So with this, Justice Sotomayor interjected, and I quote here, I'm confused by that. If you have a scheme to accept a bribery, you can't expunge the fact that you appointed

the ambassador for the bribe. You'd instruct the jury that the appointment of the ambassador isn't the crime, the bribe. You'd instruct the jury that the appointment of the ambassador isn't the crime, the bribe is the crime. I'm not sure why your problems couldn't be taken care of at trial. And this is really important because it drives to the point that Dreeben

and the special counsel are making. This is the answer to that is, you're not prosecuting them for the appointment, the official thing, you're prosecuting for the bribe and you can say to the jury, listen, you have to focus on the elements of the offense of bribery and you can consider the appointment, but you don't hold them criminally responsible for the appointment. You're holding this person criminally responsible for the bribe. Then there was a question from Kavanaugh that summarized Sauer's immunity argument that went under the radar, but I think is hugely

consequential. Kavanaugh said, the source of immunity isn't explicit in the constitution, but executive privilege isn't explicit in the constitution either. But in US v Nixon, the court unanimously said Article 2 executive power encompasses executive privilege and the same would apply to executive immunity being encompassed in that executive power and would be historically understood. Sauer of course said exactly. Yeah, and that's what I was talking about earlier about, you know, trying to want to come in here and create some sort of a power that didn't exist before. I found it here in Article 2, you know.

Which is the way that every administration, Republican and Democrat, has justified almost every action they've ever taken. Everything is like Article 2, and if you want to be specific, Commander in Chief authority. Every warrantless surveillance, whatever, whatever it is that even in retrospect we decide was probably be beyond the pale, you can just basically point to Article 2, maybe tag it to Commander in Chief and say it's built in there. And that's kind of what Kavanaugh is trying to do here. Yeah. And I think it's really interesting too, that executive privilege is what Trump

v Thompson was about, where they correctly denied cert and didn't grant the stay. Just my two cents. But before the first hour is up, we've gone from absolute immunity to immunity for official acts to how do we draw that line? And the Trump camp wants to remand back to Judge Chutkin to draw the line. And the government and liberal justices want a jury instruction to take care of that question. And keep in mind, none of this is based on what the appeals court actually held, that there's no immunity in this case.

But the Supreme Court wants to make, like you said, a rule for all future presidents, a rule for the ages. Yes. And this is where I think, uh, Dreeben might have messed up a little bit, but I mean, he's, I feel even weird saying that he's not anything like less than incredible because he's done this for so long. Yeah, but you know, it is what it is. We'll get to his arguments in a second, but no one spent any time on what the appeals

court actually said or this case, but I think he kept being driven away from that, like you said, right? Yeah, no, totally. They were clear about it. They're like, no, I'm not talking about this case. I'm not talking, every time he would answer their question, they would come back with, I'm not talking about this case. I'm talking about, you know, whatever hypothetical.

Yeah. And one other thing that was brought up by Kavanaugh in the Sauer arguments is something called a clear statement of Congress. Now Kavanaugh said, quote, I would think there would have to be a clear statement that the exclusive presidential powers have been walled off. At a minimum, there would have to be a clear statement in the statute so the president would be on notice, right? So he's saying that every statute has to include language explicitly including or excluding the president.

So for murder, for example, if the law says murder is illegal, Kavanaugh says the law should say murder is illegal even for presidents except when carried out as part of an official core act under Article 2. Yeah. Now Kavanaugh goes on to clarify, and your point, Sauer, he's talking to Sauer, is that none of these statutes have a clear statement covering the president. Therefore they can't be charged for any official acts covered in this indictment. And Sauer says, absolutely.

And then, Andy Kagan, Justice Kagan chimed in and said, the president is not above the law. The president isn't a king. Your point is the president is subject to prosecution for all personal acts. The question is whether these are official acts. And Andy, I think it's really interesting that it was Kavanaugh who brought up the clear statement of Congress thing because it was him in the member of the 14th Amendment, section three of the 14th Amendment arguments. Yep.

He's the one who brought up, well, had Donald Trump only been charged with 2383 and citing an insurrection, he would be off the ballot. Insinuating that that statute, even though it doesn't mention the president, it covers the president. Yeah. I thought this whole line of questioning along the clear statement doctrine, which is, it's a little bit warped in the way that they were using it in this argument. The clear statement doctrine basically says it's a way of thinking about interpreting statutory language.

And I just felt like this was ridiculous. Like, to me, that assertion, like, well, it can't apply to the president unless it specifically says it does. That's like assuming that there is this background, absolute immunity from all criminal statutes. It's like you're starting by accepting one side's conclusion and then extrapolating this extra kind of how we interpret statute by statute issue, which is, again, just felt

totally off base to me. Yeah, it's weird. And then Justice Barrett actually used this Kavanaugh argument of clear statement of Congress to destroy Sauer's argument that a former president can only be criminally prosecuted if he's first impeached and convicted. She says, special counsel makes a great point

that if he were impeached and convicted, that he could be prosecuted after impeachment, right? Sauer says yes. And then Barrett continues, but you also say these statutes don't apply to him because he's not explicitly mentioned. So how can you say he'd be subject to prosecution after impeachment if these statutes don't apply to him. To which Sauer responds, well, then we're back to private conduct.

That makes no sense. No. Barrett says, okay, what about a POTUS that orders a coup? And let's say he's impeached and convicted for the coup. You're saying that's official conduct so he can be charged if there's not a law that expressly references the president. And Sauer says, right. I mean, it's almost impossible to follow. It really is. If you know, like the the the coup example, because you know, Sauer argues, hey, you can prosecute a president if he's

been convicted by the Senate after being impeached. But only if, only if the criminal law specifically says it's okay to apply it to the president. But none of the charges in this indictment say that. But Sauer has been arguing that he could be. Right. And it's just, again, makes no sense. No.

Anyway. All right. We have more arguments to get to, but we have to take another quick break, everybody. Thanks for hanging in. Stick around, we'll be right back. Bum bum bum, ba da da da da da da dum. Ba da da da da da da da dum. All right, everybody, welcome back. Let's pivot to the Michael Dreeben part of the show,

of the arguments, which start out with a Justice Thomas question that allows Dreeben to sum up his arguments pretty well. Thomas says, are you saying there's no immunity for official acts? And Dreeben says yes. But for today, our position is the president as head of Article 2 branch can assert Article 2 objections to criminal laws that interfere with the President's power or that prevent him from his constitutional functions. What petitioner wants is blanket immunity absent impeachment and conviction, which has never happened in our history. And that's when Chief Justice Roberts chimes in with his second misinterpretation of the appellate

court ruling on immunity, which I brought up in the A block. And this really cuts to the crux of the choices here. He says, quote, the DC Circuit says a former president can be prosecuted for his official acts if he's acted in defiance of the laws. Doesn't that seem tautologically true? It sounded like the circuit court is saying that a president can be prosecuted because he's being prosecuted and that concerns me. And Dreeben says, I wouldn't suggest that is the government's position. And Robert said, you know how easy it is to get an indictment relying on the good faith of a prosecutor and a grand jury and of those if those are the only protections the Court of Appeals gave and that is and that's no longer your position, why shouldn't we just send it back to the Court of Appeals? Right? And that's when I lost Roberts a little bit.

Like, what? So Roberts is actually ready to send this back down for further litigation based on a misreading of what the Appellate Court held. That boggles my mind. And if the Supremes decide to remand this for that reason, I will be looking for a justification that squares this Roberts reading with what the circuit court actually said. And it was in Dreeben's reply that he hammered home again that immunity is not the status quo. As Justice Jackson said earlier in the arguments, Dreeben says, I do support the circuit court's ruling. I think there are layered safeguards that will ameliorate the concern of chilling the

president. Politically driven prosecution would violate the Constitution. I don't want to overstate your honor's concern with relying on good faith, but that's an ingredient and the courts stand ready to provide oversight." And John Roberts said, yes, but the appeals court didn't get into what acts or what documents were talking about. Because the fact of prosecution takes away immunity according to the appeals court, that's wrong.

They had no need to look at what acts were immune and which weren't. That is so wrong, but that's what Roberts is saying. Dreeben said, well, I take issue with the idea of taking away immunity. There is no immunity in the Constitution unless this court creates it today. And I thought that was huge. Yeah, I thought that was a great, that was a great line. And in this whole exchange, Dreeben is trying to address Robert's concern that if there's no protection, if there's no immunity, then the president has no protection from things like malicious prosecution or political

prosecution, things like that. He starts out by saying like, oh you can, you know, a prosecutor can indict a ham sandwich. That's not a legitimate protection against a rogue or vindictive prosecution. Yeah, and we get to that. They actually bring that up. Yeah, so Dreeben is like, well, yes, to some extent. One of the protections that a president has is the good faith of the prosecutors and the courts and the grand juries that have to get us here. But there's other protections built in.

But Roberts, he just, you know, it's like you can't even understand Roberts's questions until you hear Dreeben trying to answer them. And it almost makes you wonder like, what, what will it be like if he sends this back to the circuit court? They're going to sit there and be like, what exactly are we supposed to do? We were pretty clear the first time. You know, like, well, okay, does this come with instructions? Because I'm not sure where we go from here. So, but then Kavanaugh asked Dreeben about the quote, clear statement of Congress model. The idea that the laws have to explicitly mention the president for them to apply. And that gives Dreeben a chance to counter that argument. Dreeben says, I don't think this court's cases speak that broadly. And I don't think the Office of Legal Counsel

means that POTUS isn't covered by a law if he's not mentioned in the law. We then get to Drebens' arguments about the layers of protection against rogue prosecutors. OK, this is what we were talking about just a minute ago. One of Trump's core arguments is that if immunity is not conferred, that every president forever will be looking over his shoulder for rogue prosecutors

out to get him. That argument is teed up by Justice Alito, who says, but a president has to make a lot of decisions. Do you really think if he makes a mistake, he's subject to criminal laws just like anybody else? Yes. Yes. Yeah, I think he should actually, but we'll get to that in a minute. So Dreeben responds to this by saying, the president has access to legal advice

about everything he does. He's supposed to be faithful to the laws. And making a mistake doesn't land you in criminal prosecution, engaging in conspiracies to defraud the United States, and in one of our most important functions, namely the certification of election, does. As applied to this case, the president has no functions with respect to the certification of the election.

It seems likely the framers designed it that way because back then, there was no two-term limit. So the potential for self-interest would explain why the states conduct the elections. Yeah. And I'm so glad he brought that up because, you know, we've, we've long been saying, even if you think that for some reason it's an official duty to call down and ask for 11,780 votes, you have no say over the elections. And that's important.

It's a point that Judge Pryor brought up. Judge Pryor is the chief judge of the 11th circuit and a close friend of Clarence Thomas. And he wrote in a ruling about Mark Meadows trying to remove his case from Fulton County to federal court saying that the executive can't have any official acts overseeing elections because it's not their job. And Andy, here's where I thought of you. Justice Alito. I was

like, yeah, I have an example. Justice Alito asked about the specific protections against rogue prosecutors and for Dreeben to list them all. And Dreeben started at the bottom, the grand jury. And I don't mean the bottom like they're the worst. I mean the first layer. Basic protection that all citizens have against rogue prosecutors. Okay, go on. The grand jury. That a grand jury has to return an indictment. And Alito interrupted and said, yeah, yeah, yeah, yeah, but you can indict a ham sandwich.

And I first of all, can't believe he brought that up in court. But he asked Dreeben to cite any case. Can you cite a case where a rogue prosecutor wanted to bring an indictment and the grand jury refused to? Andy, can you think of a case where a rogue prosecutor wanted to indict somebody and the grand jury didn't indict him? You know, I'm thinking hard and I'm thinking like maybe a case where I don't know a rogue prosecutor under enormous pressure from yeah maybe a an attorney general who's like politically motivated

and also reacting under enormous pressure from a vindictive president and despite all of that pressure from above, a grand jury decides not to indict. That seems pretty familiar. I don't know. You know anybody? Yeah, me. Yeah, you. And wasn't there a second grand jury? He tried twice, right? Yeah, they had one and then they had it for so long without getting an indictment, it actually expired. And so months later, they brought it back in another effort to get them to vote and they held them for two days and still no vote. There's your protection against rogue prosecutors. Yeah, it actually works. It actually works. And Dreeben didn't bring that up. Of course not. He didn't say, yeah, your buddy Bill Barr. But he said there are such cases. And he said, but I think, but I think prosecutors have no incentive to get an indictment from

a grand jury if they don't have evidence beyond a reasonable doubt. Because Alito was saying, you know, you can indict a ham sandwich, you only need probable cause to get a grand jury to indict. But Dreeben explained, you don't have a lot of incentive to do that because you still have to take this case to trial, which for me would bring up another layer of protection against rogue prosecution, the pedant jury, right? The trial jury. John Durham, for example, got an indictment from a grand jury, but couldn't prove his case beyond a reasonable doubt. And then in between the pedant jury and the grand jury are all the motions and limineum, motions to dismiss and you know, rule 53, all these different things

that protect you from a rogue prosecutor. Yeah and in this case, well not this case, but on these hypothetical facts that most of this argument has been based upon, a president could, and Driven makes this point earlier in the argument, a president could, and Draven makes this point earlier in the argument, a president could bring specific motions to oppose a charge based on constitutional grounds. He could bring motions basically arguing that the constitution and his Article 2 authority and the fact that whatever he's been indicted for, vindictively, was part of his core presidential functions that mitigates against being prosecuted for those things. So there are protections built

into this system. That's why we haven't seen an indictment against Donald Trump for selling pardons, because the pardon power is a core power that Congress can't make laws against and it would be impossible to prosecute. Correct. So many, many, many layers of protection. Alito then posits that if there's no immunity for a president, wouldn't the fear of bitter rogue prosecutors cause the president to do things to stay in office? And wow, just wow to that.

Maybe sure, like inciting a riot on January 6th. And that's where Justice Sotomayor delivers what I thought was the quote of the day. She said, a stable democratic society needs the good faith of its public officials. Wouldn't you agree? And Dreeben says, absolutely. And she says, and that good faith assumes they'll follow the law? Drebben says, yes. Then she says, so now putting that aside, there is no fail-safe system of government,

meaning we have a judicial system that has layers and layers and layers of protection for the accused in the hopes that the innocent will go free. We fail routinely, but we succeed more often than not. In the vast majority of cases, the innocent do go free, but we still fail. We've executed innocent people. Having said that, Alito went through step-by-step

all of the mechanisms that could potentially fail. In the end, if it fails completely, it's because we've destroyed democracy on our own." Whew. That one got me. For real. For real. A lot of the second half arguments had to do with how to parse the difference between official acts and acts as a candidate, which would be private acts, right? Running don't, you don't, that's running for office is not part of your job as president. So the conservative justices indicated that they believed it would be impossible to separate them in this case, because a first term president is always trying to get reelected.

So how can you differentiate between the actions as a candidate, the actions as president, which is basically the everybody's doing it rationalization that's been used for every stupid act since the beginning of time. And also, by the way, if this is true, if this concern is the one that rules the day, what about the Hatch Act? Presidents and the members of their administrations are subject to the Hatch Act. They have to separate out those things that they do while they're running for office from the things that they do while they're in office and what resources they can use and what things they can talk about in different places. But you know, none of that even comes up here.

Or when the Department of Justice is deciding whether or not to represent a former official. I am thinking specifically of Mo Brooks. And they said, sorry, we're not going to represent you in this lawsuit, in the Blas and Game lawsuit, because you were acting in the capacity of a campaign. Right? Not as a federal officer. Same with what Judge Pryor in the 11th Circuit decided for Meadows.

We're not going to remove this to federal court. You weren't acting as a federal officer. You were acting for a campaign. And even if you weren't campaigning, even if the court decides you weren't campaigning, these are not part of your job. These duties are not part of your job as the executive to oversee elections. So yeah. That's right. That's right. They do it all the time.

So Kavanaugh then asks Dreeben to allay his concerns that if a former president is subject to prosecution, it's not gonna stop. I just have to interject here because they've always all been subject to prosecution. Yeah, of course. So Drebben says, we've lived through it with things like Iran-Contra and Watergate, and we haven't seen a runaway train of rogue prosecutions,

which is when Kavanaugh said, let's talk about Ford's pardon of Nixon. It was hugely controversial at the time, though looking back, I think it about Ford's pardon of Nixon. It was hugely controversial at the time, though looking back, I think it's regarded as one of the best political decisions of our time. Oh, God. What? How out of touch do you have to be? Yeah. So he then says, do you think when Ford was thinking of pardoning Nixon, that he was worried about being prosecuted for obstructing justice?

I don't know how you point to the Ford pardoning Nixon example as supporting the argument that immunity is necessary. It seems to be like, you know, argument one on the other side, but in any case, Drebben says no, because this falls into the core area of Article II that Congress cannot regulate, the pardon power. Which is exactly what we were just talking about. That's right, That's right.

How tautological. Now, there was some argument about using the public authority defense to draw a line between official acts and private acts, which came up while talking about the Obama drone strikes. Dreeben says, murder laws apply to presidents, but there's a public authority exception in the statute. So the protection, that's the protection for the president right there. It's there. He went back and forth with Justice Barrett on that for a while before she said, quote,

why would it be so bad for it not to be just a jury question? Seems like most of this would be figured out by a jury rather than by a judge. Ding ding ding ding. You are correct, Justice Barrett. And that's a good sign that Barrett is for getting this trial back on track. She then said, quote, I asked Sauer that even if the court were to recognize some immunity for official acts, private conduct would allow this to be remanded for trial. The special counsel's office has an interest in speed. Sauer asked us to remand and have the lower court sorted out.

Is it another option for the special counsel to proceed on the private conduct alone? And Dreeben said, well, it's integrated, working with private lawyers to achieve the goals of the fraud and using official powers to make it more likely to succeed. We want to present that to the jury as an integrated conduct so that they can see the gravity of the conduct. But if the court were to say, the fraudulent electoral scheme is private, exploring violence at the Capitol is private,

we still think that we could introduce official acts of interacting with the Justice Department or trying to pressure the Vice President for the evidentiary value as showing intent. And we would take a jury instruction that says you can't infer criminal culpability for those actions, but you may consider it as it bears on knowledge and intent. That's the rule for protected speech under First Amendment in Mitchell. That's how he's saying that's how we handle when the First Amendment meets fraud, you know? Correct, correct.

And I think that was the best argument of the day, Andy. We can go forward with this trial using jury instructions that we can't hold them criminally liable for official acts the same way we don't hold fraudsters criminally liable for their speech. Exactly, exactly, yeah. And so the arguments end with with Justice Jackson, wondering if this case is the best vehicle for deciding immunity for future presidents. And I have

to say, I really felt like Justice Jackson's questions were like so on point and so like relevant and not often these flights of fancy around 16 levels of hypotheticals but basically here she said so if we decide that there is not absolute immunity it's not as though POTUS doesn't have the opportunity to make arguments about particular acts in the future I think I hear you saying we should not be trying to set up those boundaries ahead of time. We allow each to be brought and we decide. And Dreeben says yes, and Petitioner hasn't made that argument. He put all of his eggs in the absolute immunity basket. Jackson responds, let's say we

try to figure out a line. Is this the right vehicle to make those rules? There's really no plausible argument that these charges fall anywhere near core acts. So if we're going to do this analysis, we should probably wait for a vehicle or a case that allows us to test the different kinds of acts. By that she means private versus official. Hello. Draven says, I don't see any need for the court to embark on that kind of analysis in this case. Of course he said that. Like, yes, he's probably like, oh, thank you. He's also the only person, the only judge that made, that brought up

this argument and she brought it up both to S and to driven that that Trump's fundamental argument that if without absolute immunity, a president would basically be chilled in making necessary presidential decisions. She's the only one to say, isn't that a good thing? If a president is chilled by criminal law, don't we want that? Don't we want criminal laws to impose some restraint on a president who would otherwise be completely detached from the laws that everyone else in this country has to abide by? She actually at one point said, do we want an unhinged president to turn the White House into like crime central? The seat of crime in this country. I'm like, yeah, exactly. Like chilling a president, sending a message to this and all future presidents that you will be held liable

under some circumstances to the criminal laws of this country is a good thing to the citizens of this country, right? And it's what the country was founded on. Of course. Honestly. And yeah, when she said that, when she said, I envision a reality where it's far worse to me, she says, and I'm paraphrasing, it's far worse to me that we have a president who is like wringing his hands,

like, great, I can get in that Oval Office and I got some immunity. That's a far more dangerous scenario than the chilling a future president or feeling like they can't do their jobs. And I think that she has that view because she's the one who continually said, immunity has never existed. That's not the status quo to me is that there's no immunity.

Exactly. Yeah. All right. We'll be right back with some final thoughts and listener questions. Everybody stick around. We'll be right back. All right, everybody. Welcome back. So Andy, thoughts on this whole argument? I was very frustrated with Alito and Gorsuch and Kavanaugh and even Roberts, but also Thomas. I mean, he didn't really say much. He should have been recused, honestly. Yeah, I mean, he doesn't really ever say much. The guy went, what, like 20 years without asking a single question in an oral argument. So you can't really expect to divine a lot from his

questions. I felt like their questions were, the conservative justices' questions were so clearly in a channel of they are seeking the opportunity to define some sort of president, some degree of presidential immunity, and they're bound and determined to do it in this case, even though I think if you ask them privately, they would all admit that the facts here just don't require that and shouldn't qualify for it. This is frustrating to me that we're going

through this legal gymnastic for whatever their reasons are and the cost of doing that is basically, you know handing handing Effectively handing Donald Trump immunity in this case Right at least through the election, right at least through the election and then maybe permanently if he wins Because we everybody knows what's gonna happen if he wins the case goes away So I it's just... But he's an unindicted co-conspirator in two states and an indicted conspirator in one. So can't pardon those away. That doesn't mean that he wouldn't be able to somehow get rid of them. I'm sure he's got tricks up his sleeve. He is the rogue president in Justice Katanji Brown

Jackson's nightmare. Yeah, basically. So he could probably come up with something. So we're going to find out. Maybe. Maybe we find out what happens when we have a president who believes that he's absolutely immune from criminal prosecution. No, no, we have to vote. We have to vote. And again, it's always been up to us. It's always been totally. Yeah, yeah. And just a note, the most effective way to get people to the polls is for you to personally talk to the friends and family that you know in your community,

that not necessarily the MAGA cult, but, you know, people who maybe just aren't into politics or don't really vote much. Just say, hey, for me, I'll give you a ride. Yeah. And I think the way to do it is like people, so many people are, I, who I talk to are like, Oh, I'm not really into the news. I don't like to follow the news. It's not really about that. It's more like just have a conversations around like, what, what do you, what about this country do you care about? Is it important to you that we continue to be a free and fair democracy in which everyone is held

to the same laws? Because that's really what's hanging in the balance. Wherever you are on the spectrum of conservative to progressive, you know, thinking like, thinking about this decision in terms of like eggs cost too much. I know that they probably do and that that hurts a lot of people and but it's just what's at stake here is way bigger than that. The future that that we leave this place, you know, to our kids is really kind of hanging in the balance.

So that's, I feel like what people need to think about. Yeah, those rogue prosecutors under a second Trump term will be more likely to get an indictment. Not that the penit jury will let it happen or that the judges will let it happen. I mean, again, as Justice Sotomayor said, there are layers and layers and layers of protections against rogue prosecutors. Yeah, so many. But we'll see what happens. I think they'll probably come up with some interesting new narrow immunity. Maybe they'll define it with the the public authority defense. Maybe they'll define it with that congressional word that has to mention it in the laws, whatever that thing, the clear congressional theory or whatever.

But I mean- Or some core power designation. If it's the exercise of a power that's explicitly enumerated in the constitution and that's a core power and you can't, who knows what they'll do. That's a given though. Of course. Of course. It's already a thing.

I don't know. I don't know how this is going to turn out. I thought for sure they would not grant cert here. Well, I didn't think for sure. I was hoping. That was my dream. Remember the dream? Oh, I remember the dream. That was a good dream. Those were the days. But I was sure like, oh, they did it in Trump

Thompson. They did it and you know, but no, they decided to take the case and answer a question that doesn't have anything to do with this case. It's very weird, but they can do that. They're the Supremes. So we'll see what happens. But like I said, Trump's already won this one because he got the delay. March 4th was the trial date. We would be well into the trial, if not near the end of it by now. If it weren't for this. Yeah, for sure. For sure. All right, we had a lot of other news happen this week, Andy. We'll cover it on the next show, like I said, including that huge document dump from the motion to compel. Jack Smith wanted to keep everything sealed, but she was like, all right, I won't release

the witness lists, but give me your redactions on this other stuff. We have all that. We learned through that document dump that the code name for the Mar-a-Lago investigation was Plasmac Echo. There you go. We learned that Walt Notta was promised a pardon by Donald Trump. We have an unsealed Jack Smith filing from a year ago about Stanley Woodward, that's interesting.

Nice. Trump's filed a notice of unavailability for Chris Kyes because he's having back surgery, which may actually push back that May 9th SIPA Section 5 deadline. So lots going on in Florida. We'll cover it next time. But let's get to listener questions.

And again, if you have a listener question, if you are a listener and you have a question, we will have a link in the show notes for you to click on to submit your question. What do we have this week? So this week, as you would expect, we've got a lot of questions that kind of bump up against the Supreme Court arguments. So I picked one of those. It comes to us from Jim, who starts out by saying, you guys rock, always so insightful.

I have a question from the SCOTUS immunity hearing. Jim says, Alito suggested that members or officers for SEAL Team Six could ignore an illegal order. However, he seemed to be okay with the President of the United States giving that illegal order, as does Trump's counsel, Mr. Sauer. This seems really bothersome to me, if not terrifying, but I wanted your opinion on this

as to the essence of this issue. So yeah, this was another good example of kind of the bizarre terrain that some of this argument ended on. This was one that came up where along these lines of like, what's official, what's personal? How about when a president uses what is undeniably a part of their official power, but they use it in a way that's likely illegal. And so as a, as a, you know, protection against that, Alito suggested, well, you know, if the president, let's say, let's say the president ordered SEAL Team Six to assassinate his political rival, then what we have to rely on in that case is that SEAL Team Six would, of course,

ignore such an order because it's illegal. First of all, I'm not so sure. I don't know how confident you could be about that. Really depends on- I'd rather rely on a grand jury and a petit jury than the military following a lawful order. The whim of whoever might have been on the receiving end of that phone call.

Like, and you know, who knows? That seems insane to me. But yeah, so OK with giving the illegal order because it's not going to be followed by the people on SEAL Team 6 or whoever received it. So it was bothersome to me as well, Jim. I think it's terrifying. But again, we're in the land of

hypotheticalia, right? It's not, these are things that are- The parade of terribles, right? Yeah, exactly. And I feel like the example actually sheds light on the point that the special council team is trying to make. Like these are insane results. We can't possibly embrace a legal interpretation that would support this end result. Yeah. And it's almost like Alito sat around and thought about some maniac getting into the White House and all the damage he can do and how it would be mitigated even though there were immunity. Like he's thinking about it backwards. Like through his hypotheticals, like, well,

let's say a guy got into office and ordered the attorney general to stab the FBI director in the face. Then what? You know, and he sits there and works these out in his head like, no, it'd be okay. It'd be fine. You know, like, they're trying to justify it to himself. Part of it, I think, and this is just speculation here, worth what you paid for. But I think part of it is a lot of conservatives will really go like the extra mile to justify anything that contributes to this idea of kind of the unitary executive theory and presidential power and kind of embrace what seemed to be ridiculously illogical ends that nevertheless support the idea that you know once you're the president you basically can

do whatever you want and you know I actually heard somebody you know talking about this the other day on the radio saying like, oh, well, because we know that the presidency has been so limited in the last several decades by congressional oversight and all these other things. And I'm like, that's actually the opposite of what's happened. Presidential authority has expanded so much

in the last couple of decades that, I mean, if anything, the first Trump, first and so far only Trump administration has proved to us that, you know, congressional oversight doesn't mean anything if a president doesn't choose to observe it and adhere to it, right? Requests for information ignored, statutory requirements for things like the Magnitsky Act that require once Congress requests an update on a certain, you know, issue, the Magnitsky Act requires the administration to respond within something like 90 days. They just didn't. Subpoenas for information were ignored.

120 days. They didn't. I really don't think we're in a place where we need to worry that presidents are too hamstrung and worried about looking over their shoulder and don't have enough power. I just don't have, as someone who's worked with presidents and many, a couple of administrations, that has not been my experience. No, and that's what we did after Watergate was we, we limited the presidential power. We put new laws into effect, et cetera. We should be, after what happened on January 6th, we should be pulling back and peeling back this unitary power and executive power.

And it's the conservatives who want to, oh, give them more power. No, it's great. We love it. And it's backwards. It's really backwards. We have turned our president into a very powerful, idolized, people no longer see the presidency and the executive as a co-equal branch to Congress. Like when the DOJ subpoenas people,

they have a lot more power than when Congress subpoenas people and it shouldn't be that way. So it's odd. Our system of government is built on this very delicate and I would say elegant tension that exists between the three branches. And yeah, over time, issues come and go, politics comes and goes. Sometimes the balance of power shifts and administrations take on more and more and more authority and start listening to Congress less and less and less. And then things swing back into their, you know, in the opposite direction. And ultimately, long term, you maintain that tension, that balance. But boy, I don't, I

think you got a hard time arguing that boy, these poor presidents, they don't have any authority to do anything on their own anymore. And we have a lot fewer checks on the Supreme Court too. And it's that way because of all the Federalist Society money and Leonard Leo and his nonprofits and the unitary executive and the Supreme Court working together to kind of to run the whole show. And Congress has ceded their authority. They've rolled over and, you know, ceded their authority. They've rolled over. And, you know, that's why we still have things like the AUMF, right? More than 20 years later, after 9-11, we're still operating our counterterrorism mission around the globe under an authority that doesn't even fit half the stuff that

we're doing. But you can't get Congress to actually stand up and, you know, do their job and take that away and take it away and replace it with something that works, replace it with something that's relevant and sets appropriate boundaries for what we want our military to be doing. But appliance week, we're still waiting for appliance week. It's very important over there in the House of Representatives. For sure. All right. That's a long show.

We should probably let these people go. Yes, it is. Thank you so much for your questions. Send them to us at the link in the show notes. Thank you, thank you so much. I know this was wonky and long, but we know you appreciate it and we appreciate you. It's great seeing a lot of you this past weekend in DC.

We'll see you coming up in August, on August 16th at the Hamilton Hamilton Theatre and of course on May 7th at the Schar School there at GMU. So thank you again and we'll see you next week. I've been Alison Gill and I'm Andy McCabe.