Jack - Jack | Episode 62.5 | Immunity Emergencysode

Episode Date: February 7, 2024

It has arrived…and it doesn’t disappoint!The DC Circuit ruled 3-0 that Trump is not immune from prosecution for his actions on and around January 6, 2021.Read the ruling here:https://www.lawfaremedia.org/article/d.c.-circuit-rules-trump-is-not-immune-from-prosecution 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/18/1512Brian Greer’s Quick Guide to CIPAhttps://www.justsecurity.org/87134/the-quick-guide-to-cipa-classified-information-procedures-act/ 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

I signed an order appointing Jack Smith. And nobody knows you. And those who say Jack is a finesse. Mr. Smith is a veteran career prosecutor. Wait, what law have I grouped? The events leading up to and on January 6th. Classified documents and other presidential records. You understand what prison is?

Send me to jail! Hey everybody, welcome to episode 62.5 of the Jack podcast, the podcast about all things special counsel. This is an emergency episode because we have the immunity ruling. I'm Allison Gill. And I'm Andy McCabe. Wow, Andy. So we got it. It never fails as soon as I announced

that I'm gonna go on vacation. We get what we've been waiting for. And we got the immunity ruling today on Tuesday. It came out this morning. And I have to tell you, we're about 75% on the way to my dream scenario, which has always been, you know, Jack tried to leapfrog the appellate court,

went to try to go to SCOTUS. SCOTUS said no, denied cert. Everybody was like, oh, huge loss for Jack Smith. I was like, wait a second, that's, nope, if we want my dream scenario to work out, they have to have denied cert here. Then we get a ruling from the appellate court. They issue a quick mandate which allows the proceedings to continue

unless the Supreme Court intervenes. And that's where we are now. We just have to wait until Monday to see if the rest of my dream comes true. You are like at the goal line for a dream. That's pretty good. That's, you got far down this dream track. And today's, you know, today's inclusion in that, in that TikTok is a big one.

What an opinion this thing is, holy cow. So the first thing that jumped out at me is after our conversation last Friday, we have yet another percurium opinion on our hands. An opinion in which, as listeners will recall, it's not signed because it doesn't have to be signed because it is unanimous. Every word in this opinion can be attributed to each one of the three judges. And we know that we had a pretty, you know, a diverse panel there in terms of who these judges were

appointed by. So yeah, it's a really strong statement. Yeah, and that makes it a little less likely to be picked up by the Supreme Court, which is part four of my dream come true, right? That the Supreme Court will refuse to hear this case and allow the DC proceedings to get back underway and proceed. So this is a percurium opinion.

We don't know who wrote it. It is unsigned, as you said, and every single word can be attributed to all three judges, judges Pan, judge Childs, and Judge Henderson. That is a two Biden appointees and a GW Bush. Uh, and so it is a quote unquote bipartisan, you know, ruling, which is a thing now that used to not be, we didn't really even ever analyze or consider, you know, the political backgrounds of the judges, we just like, okay, that's what the judge said, that's the rule. Uh, but yeah, it's a different world, unfortunately.

So, and you know, it's kind of what we suspect that they were working on. It's assiduously cited. There's a ton of precedent in here. There's a lot of references to historical evidence, a lot of sites to the Founding Fathers and the Federalist Papers. And it's just a really broad resounding.

There's no equivocation here. A lot of judicial appellate court opinions, you'll hear, well, there's this side, and then there's that side, and putting everything together, we go with B over A. That's not what you have here. This is just a resounding smackdown of all of the arguments presented by Trump's lawyers on appeal. And there isn't even a, I concur, but there's not even a concurrence here. This is all totally attributable to all the judges.

And the top line here is that Trump is not immune. And again, the mandate will issue Monday. And you know how we talked about, gosh, that'd be great if they lifted the stay. And that's kind of essentially what this is, is they give Trump until Monday to file his appeal, either on bonk or to the Supreme Court or both. Joyce Vance says he might not even file on bonk, in this case, he might go straight to the Supreme Court because of the time limit, but that is a very fast turnaround. Mandates usually take 45 days or so,

and so this is very quick. And so this kind of forces the Supreme Court's hand, like you gotta tell us whether you're gonna grant cert or not quickly So that the DC trial can resume 57 pages my guess I we had a pool going on over on Twitter I thought 44 pages, but it's 57 pages. So I was I was off and This is from the introduction Andy for the purpose of this criminal case

This criminal case former president Trump has become citizen Trump with all of the defenses of any other criminal defendant, but any executive immunity that may have protected him while he served as president no longer protects him against this prosecution. And of course, at this stage, they say, we assume the allegations set forth in the indictment are true. They have to do that. Yeah, and that's an important point because you'll see it a lot of the language here talks about his conduct and talks about it in the tense of what he did, right,

after the election and before January 6th. And sometimes it kind of hits you a little bit awkwardly and you think like, well, that case hasn't been proved yet, but as a matter of law, the appellate court and an interlocutory appeal like this has to take the allegations in the indictment as truthful. Understanding that those are all things that have to be proved later at trial, that's not where we are right now. We're in an interlocutory appeal. Yep.

And they first go at jurisdiction. And this is what I and you and I discussed about what could be taking a while, because there was seemed to be, at least by their questions in the hearing that happened exactly four weeks ago today, in their questions, they seemed to be at odds about the jurisdiction. But they say, although both parties agree the court has jurisdiction over former President Trump's appeal, both Jack Smith and Trump think that this court has jurisdiction. There was an amicus curate filed by American oversight that raises the threshold question about our collateral order jurisdiction.

So if you want to blame anybody, maybe American oversight. But they had a, this was a very good amicus curate brief to file because it did raise a lot of important questions about jurisdiction. They say the Midland asphalt court emphasized that criminal collateral orders that are based on one, a right not to be tried, must rest upon an explicit statutory or constitutional guarantee that trial will not occur. Singling out the double jeopardy clause and the speech or debate clause. So in Midland, they specifically singled out double jeopardy and speech or debate. Former President Trump does not raise a straightforward claim under the double jeopardy clause, meaning he's not doing the Fifth Amendment double jeopardy, but instead he's relying on the impeachment judgment clause double jeopardy thing. Thus, he does not invoke our jurisdiction

based on the explicit grant of immunity found in the Double Jeopardy Clause. So that's not why we have immunity. But we can exercise jurisdiction for two reasons. First, Midland asphalt is distinguishable and does not require immunity to derive from an explicit textual source. And second, the theories of immunity, former President Trump asserts are sufficient to satisfy Midland asphalt under precedent. So that's really remarkable because it seemed

through the questioning of Pan and Childs that there was a disagreement with Henderson on jurisdiction here. But again, they may just have been covering all their bases. You know, this is about as clean away as we could have possibly hoped for them to resolve this apparent variance on the jurisdiction issue. Because during the oral arguments, it seemed like they were kind of in two different places. They both tried to kind of lure DOJ into arguing for no jurisdiction. And DOJ kind of pointedly turned that opportunity down, saying they were more concerned with the fair administration of justice

and wanted to have the issue heard. So we were both kind of wondering like, how are the three of them gonna get together on this jurisdiction issue? If they're split at all, it undermines the strength of the opinion and maybe raises the possibility of a Supreme Court review. But of course, they didn't. They didn't. They came together predominantly

around Midland asphalt, which is the case, the Supreme Court case that defines basically how courts should decide whether or not an issue should be handled on an interlocutory appeal like this. So that's an appeal that goes up before the trial takes place. And essentially Midland has three different factors. The first two were not at issue, but the third factor is to be considered whether or not the issue is unreviewable on appeal. And what essentially makes something unreviewable on appeal is the deprivation

of the right not to be tried would be unreviewable on appeal from a final judgment. So in other words, if you had a double jeopardy argument for immunity and the court waited and said, well, you can raise that appeal after the fact, it's no good because you've already been tried twice. You've already been put in jeopardy twice. The right was basically obliterated by the process. And so this is what they find here, that Trump's argument essentially would be unreviewable on appeal, which makes the entire thing eligible for interlocutory appeal status.

Yes. And how many times, Andy, did I mention to you or on Twitter or in my posts or elsewhere that during the arguments Judge Henderson said, but in Midland and a case that quoted Midland, called Digital Equipment, they say that it's characterized as a suggestion. Midland is just a suggestion, right? I mean, how many times did I bring that quote up? And here in this decision, they say the Supreme Court itself has hinted, although not squarely held, that Midland-Asphalt's language should not be read literally. In digital equipment, the court quoted the relevant sentence from Midland-Asphalt and characterized it as a suggestion. Again, precisely what Judge Henderson said during arguments, I focused on that, I zoomed in on that and said, okay, well, this is why Judge Henderson feels that they have full total all out, you know,

balls to the wall jurisdiction because that's all Is merely a suggestion. And the Supreme Court quoted digital equipment. And there are so many references to the Supreme Court, which is what makes this such a solid ruling and hopefully the Supreme Court will decide it's not reviewable. Now both, they go on to say both of former President Trump's arguments are at least analogous enough to the speech or debate clause

or the double jeopardy clause to fit within our precedent, meaning these arguments, both of these arguments, are close enough. Accordingly, we will conclude that we have jurisdiction to reach the merits of former President Trump's appeal. And this is a big deal because they were talking about hypothetical jurisdiction doctrine, like maybe if there's a disagreement between the judges about whether or not they have jurisdiction, which seemed like that's what was happening, that they could reach the merits using hypothetical jurisdiction,

but they don't even do that here. And again, I think that is what they were all working on together to put together this purcurium order and ruling to say, we absolutely have unequivocal jurisdiction on both of these appeals, double jeopardy and absolute immunity, and therefore we can rule on them. And that is huge here. It really is, because you wanna put forward this impression that there is no question,

there is no legitimate question of law here for the Supreme Court to weigh into. Now they could always disagree and decide there is an important issue that only they can weigh in weigh in on and decide and so they'll do that. But every aspect of this opinion that is unanimous, that as you said is well founded in Supreme Court precedent all those things build toward a very strong opinion In which the likelihood of the court seeing a hole in that logic that they need to rush in and fill

That likelihood goes down. So I think we're you know, it's it's hard to imagine this having come out in any stronger capacity. Yeah. And in doing that, they almost box out the Supreme Court, you know, like, look, the Supreme Court said this, you said this, Kavanaugh, you said this, Scalia, you said this, we'll get into a little bit of those details a little bit later. But, you know, to lay the foundation of absolutely we have jurisdiction because his claims of double jeopardy and total presidential immunity are analogous enough under Midland asphalt to the speech or debate clause

That we can go forward here and rule on the merits and rule firmly on the merits and quote the hell out of the Supreme Court Particularly conservative justices on this one and then you said, they have a ton of other precedent in the circuit that we'll talk about in a little bit. But we need to take a quick break. Everybody stick around, we'll be right back. ["Dumb Bum Bum"] Okay, so we're back and we're going to dive into really the merits of the, we've passed over the jurisdiction section now, we're going to get into the merits of the argument.

So the court first addresses Trump's claim of absolute immunity from criminal prosecution for all official acts undertaken as president, a category he contends that includes all of the conduct alleged in the indictment. Now, the Supreme Court has consistently held that even a sitting president is not immune from responding to criminal subpoenas issued by state and federal prosecutors. And for that, the court points to Trump versus Vance and also US vV Burr. In the civil context, so not criminal cases, not criminal investigations and criminal trials, but rather civil trials between two citizens, the Supreme Court has explained that a former president is absolutely immune from civil liability for his official acts, defined to include any conduct falling within the outer perimeter of his or her official responsibility.

Now, both sitting and former presidents remain civilly liable for private conduct that they may have committed in office. And the best example of that is always the Clinton v. Jones case in which Clinton was forced to sit for depositions in a civil case filed by Paula Jones. Yeah and they also bring up Blasen Game which was a recent case that they ruled on as well. That was one of the January 6th, you know where the Capitol Police officers are suing Donald Trump for his conduct civilly on January 6th. And that's an important case here as well. And that's what makes this case such a unique issue of first impression as the court says earlier in the opinion, this issue of whether or not

presidents have any liability or immunity on the criminal side has never been squarely addressed before. So that's what they dive into. So they say former president Trump's claimed immunity would have us extend the framework for presidential civil immunity to criminal cases and decide for the first time that a former president is categorically immune

from federal criminal prosecution for any act conceivably within the outer perimeter of his executive responsibility. Now, Trump argues that there are three basic reasons or three arguments upon which he bases this claim of immunity. The first is a separation of powers argument in which he's basically saying that Article III courts or federal courts lack the power to review a president's official acts. So there's a separation of powers. Sorry, there's a court.

According to Trump, separation of powers means that the court system can never review the acts of a president. His second argument is more on the policy side. He claims that there are policy considerations rooted again in the separation of powers that require immunity to avoid trampling on executive power. So in other words there are policy considerations that in order for a president to be able to execute his commander-in-chief authority or other constitutionally granted powers, you can't have the judiciary stumbling in and telling him what he can and can't do. And then finally, his final argument is that

the impeachment judgment clause does not permit the prosecution of a former president unless he's already been impeached by the house and convicted by the Senate. All right, so those are his three arguments in a nutshell. Now, relying on these sources, the court goes on to say, we reject all three potential bases for immunity,

both as a categorical defense to federal criminal prosecutions of former presidents, and as applied to this case in particular. That's a double punch in the face. I mean, that's like, you're wrong on principle. What you're arguing for does not exist in theory. And it also doesn't exist in practice. Like we're extending our holding to the facts

on this very case. Like it's one thing to say, no, that privilege doesn't exist. It's another thing to say, it doesn't exist in theory. And as you've lived the facts of this case, it doesn't apply to you here. Yeah, and Judge Ludwig brought that up in his amicus brief. Judge Ludwig at all, the other 23 or so officials, basically saying, particularly here where you tried to stop the transfer of power, Particularly here where you tried to stop the transfer of power, right? Especially here you can't be immune And so it's just no immunity stacked upon no immunity. So that's right

It's kind of wonderful and we'll get to the even ifs later on, you know, I love an even if in a court filing Even if you do we'll get there anyway Even if you want to talk about it and talk about it. Now I have something, I have a present for you, Andy. Okay. Because they talk about the separation of powers doctrine here and Trump's argument that all Article III courts lack the power to review the president's official acts. Quote, it is settled law that the separation of powers doctrine does not bar every exercise of jurisdiction over the president of the United States. Look at Fitzgerald.

Look at Nixon. He relies on Marbury's oft quoted statement. Remember because he kept repeating this, John Sauer, over and over again. Yes. I remember because it annoyed me so much every time. It annoyed the hell out of you. You were like, can I just say? So his oft quoted statement that the president's official acts

can never quote be examinable by the courts unquote. And here we go, Andy, former President Trump misreads Marbury and its progeny, properly understood, the separation of powers doctrine may immunize lawful discretionary acts, but does not bar the federal criminal prosecution of a former president for every official act. There you go, Andy. So now they are saying that you can be criminally prosecuted for official acts, not just stuff outside the perimeter of your stuff, right? And you know what? Of course you can. Of course you can. It's absurd. It's an absurd thing to assert. And then to try to cloak it in a misreading of Marbury is, I think, offensive to a lot of lawyers and people who read these opinions. I mean, you know, the court here goes deep into

I mean, you know, the court here goes deep into justice. Of course, John Marshall, who wrote the opinion of Marbury, he, in that opinion makes a distinction between discretionary or political decisions and acts of a president and what he calls ministerial acts of a president, discretionary being not reviewable and ministerial being reviewable. And it's important to know ministerial makes it sound like, oh, he's putting on a fancy hat and waving a scepter over somebody.

That's not what it means. Ministerial means these are the actions that a president must take because Congress has passed a law that imposes upon the president a duty to act under some circumstances. Yeah, a perfect example is the vice president's role on January 6th. Exactly. So that these are duties that are imposed upon officers of the government and to include the president. And when they fail to act in concert with that, when they fail to live up to those obligations, that action or inaction is reviewable by courts.

And why wouldn't it be? It's the most fundamental violation of law. Right, so like if Vice President Pence or a future Vice President J.D. Vance wants to throw out electoral votes on January 6th. That is against the law. Yeah, exactly. So, yeah, I was so glad that they addressed this directly because the, the, really kind of set the record straight. So they go on to say that the cases following Marbury confirm that we may review a president's actions when he is bound by the law, including by federal criminal statutes. The Supreme

Court exercised its cognizance over presidential action to dramatic effect in 1952 when it held that President Harry Truman's executive order seizing control of most of the country's steel mills exceeded his constitutional and statutory authority and was therefore invalid. It's like the perfect example of the courts constraining a president's ability to act, constraining it in a way that's consistent with the law. Further, the Supreme Court has repeatedly affirmed the judiciary's power to direct appropriate process to the president himself. The separation of powers doctrine, as expounded in Marbury

and its progeny, necessarily permits the judiciary to oversee the federal criminal prosecution of a former president for his official acts because the fact of the prosecution means that the former president has allegedly acted in defiance of Congress's law. Right? It's just what we were talking about a minute ago. Our conclusion that the separation of powers doctrine does not immunize former presidents from federal criminal liability is reinforced by the analogous immunity doctrine for legislators and Judges. Yeah, remember all those arguments about how, you know, we do this with judges. We do this with legislators We should do it with you. Yeah, and I thought that that was really good that they covered that as well

So they go on and talk a little bit about Article 3. They say they conclude Article 3 courts may hear challenges or charges alleged in the indictment under the separation of powers doctrine, as explained in Marbury. So your argument that Marbury immunizes you, it does the opposite, basically. It does.

It puts you right in the grease. You're in there. And it's Marbury and it's progeny and applied in the analogous context of legislative and judicial immunity. Former president Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in a court for his conduct.

Yeah, I mean, there are so many places in this opinion that really resonate with this overall theme. And it's the first thing that you and I talked about when he filed this motion, however many weeks ago that was, which is what he's asking for is fundamentally in conflict with who we are as a nation, with what the constitution says,

what the constitution means, what the Constitution means, what our founding fathers intended when they wrote it that way, and that is we live in a nation under law, not under a king, not under a dictator. What's supreme in this country is the law and it's applied to everybody in the same way. So what he's arguing for here is fundamentally un-American. Yep, and here's something that's interesting

that might actually play a little bit of a role, at least if I were arguing on Thursday morning, this coming Thursday for section three of the 14th Amendment. On page 24, the court concludes that basically the president is an officer of the United States. And the quote is, no man in this country is so high that he's above the law.

No officer of the law may set the law at a defiance with impunity. All the officers of the government from the highest to the lowest are creatures of the law and are bound to obey it. That's Lee. That's USV Lee. And Kavanaugh concurred in Trump v. Vance by quoting US v. Lee on the fact that no officer of the law may set the law on defiance.

So this could come up. If I'm arguing on behalf of Colorado and Colorado Supreme Court and the petitioners in Colorado to keep them off the ballot, I'm bringing this up particularly right to Kavanaugh's face. On that point. Totally, totally. And I'll give you another one to to Kavanaugh's face. Totally. Totally. And I'll give you another one to bring up right to his face.

Yeah. Because I know where you're going. And we're going to talk about this a little bit later, but this is a great quote. All right. So, it's a little further in the rationale and we'll get to it in detail. But basically, the court is talking about the take care clause and they quote Youngstown again, Judge Jackson Concurring, which basically the quote there is just says

that the take care clause plays a central role in signifying the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules. So then this court goes on to say, it would be a striking paradox if the president, who alone is vested with the constitutional duty to take care that the laws be faithfully executed,

were the sole officer capable of defying those laws with impunity. Once again again referring to the president as an officer for constitutional purposes, which I take as a good sign. Yeah, yeah, yeah, and I'm gonna be looking forward to somebody, some lawyer having those those two particular quotes come out of their mouth from this ruling. That's right. So it's gonna be an interesting morning on Thursday as they

argue section three of the 14th amendment. God, wouldn't it just be like the trifecta if the Supreme Court somehow ruled that he was ineligible to be on the ballot? I mean, I'm not expecting them to, but I can't in my head put together a legal reason for them to conclude that he should be on the ballot. It's going to be really interesting to see. It will. It will not be this week. It's going to take a little while to get the answer to those questions. But I'm with you. I feel like that one's a real long shot. But we'll see. We'll see. You never can tell.

We will see. All right. we're going to come back. We're going to talk about those policy considerations, you know, Trump saying, you're going to open Pandora's box, all the stuff he said does on true social. I have to have immunity or I can't lift a finger. Every president's going to be haunted by indictments until he dies once he, that whole argument is addressed next. We'll get to it right after this break. Stick around. ["Drums and Chantings"] All right, welcome back.

Let's talk about the section on functional policy considerations. They say even though it is proper under Marbury and its progeny for an Article III court to hear criminal charges brought against the former president, we necessarily must weigh concerns of public policy, especially as illuminated by our history and the structure of our government, including our constitutional heritage and structure. Again, this is addressing Trump's argument that if presidents aren't immune,

they won't be able to do their job, and it would open up that Pandora's box of unimaginable amounts of indictments, which I haven't seen any of the other four remaining retired living presidents face, but that's his thing, his whole thing on true social, his new motto is save immunity. And that's what he put out today on true social, which is also under federal criminal investigation for money laundering. But the court says, we note at the outset that our analysis is specific to this 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. We consider the policy concerns at issue in this case in two respects, right? The Pandora's Box, two respects. First, we assess possible intrusions on the authority and functions of the executive branch and the countervailing interests to be served

as those concerns applied to former President Trump's claim that former presidents are immune from federal prosecution. They say we conclude that the interest in criminal accountability, held by both the public and the executive branch, outweighs or countervails the potential risk of chilling presidential action and permitting vexatious litigation. And Judge Pan had a very long series of questions about this,

and so did Judge Childs. Talking about, look, we have to weigh against what you claim is the power of the executive under Article II. We have to weigh that against the public's interest and the executive branch's interest in criminal accountability. And they conclude that the criminal accountability and the public interest outweighs your concerns. And here's where Judge Ludig's argument about the executive vesting clause comes into play. We had that amazing interview with the judge. They say, second, we examine the additional interests raised by the nature of the charges in the indictment.

The executive branches interest in upholding presidential elections and vesting power in a new president under the constitution and the voters' interest in democratically selecting their president, we find these interests compel the conclusion that former President Trump is not immune from prosecution under the indictment. And why?

Here's where Judge Pan's argument about Seal Team Six comes into play, right? They say moreover, past presidents have understood themselves to be subject to impeachment and criminal liability, at least under certain circumstances. So the possibility of chilling executive action is already in effect. You can be impeached. And Trump, you even conceded that criminal prosecution of a former president is expressly authorized by the impeachment judgment clause if you're impeached and convicted. Remember when he had to admit to that? Oh sure.

That was huge. Yeah. And they also bring up, Andy, they bring up the Ford pardon. They say additionally, recent historical evidence suggests presidents including Trump Have not believed themselves to be wholly immune from criminal liability for official acts during their presidency Gerald Ford issued a full pardon to Nixon With which both former presidents evidently believed was necessary to avoid Nixon's post resignation indictment So you argue that that president can't lift a finger and they need to be immune, but presidents

are already under scrutiny through the impeachment process and through your own admitted potential criminal prosecution if you're convicted in the Senate, which is all wrong, we'll get to that later, but you admitted you can be prosecuted. So this immunity hasn't existed and therefore can't bar you from doing your job. That's right. That's right. They also, in addition to Ford, they refer to the deal that Bill Clinton cut with the Special Council investigating, I guess it was Whitewater, although it went pretty far beyond that, to surrender his law license for five years and I think a fine of $25,000 after he left the presidency

in return for an agreement by the special counsel not to pursue criminal charges. So look, there's multiple examples right there of presidents who were fully cognizant of the fact that they could be facing criminal culpability for acts that they had engaged in while president. So this idea that striking down Trump's request for immunity will somehow unleash, as you say, open the Pandora's box of now,

every president to follow will never be able to do anything, will never be able to make a strong or bold or quick decision while in office, because they'll be so afraid of criminal prosecution after they leave, is just ridiculous. And I would argue, and I feel like there's, I can't find the exact quote right now, but there are references to this in the opinion.

The idea of criminal liability is a good thing. You want presidents to realize that they should follow the law. And if they don't follow the law, there could be a penalty for that. There's a healthy, it's called deterrence, right? There's a healthy effect when people understand when criminal liability is going to be imposed upon them,

they, you know, mediate and regulate their conduct to make sure that they don't violate the law, which is at the end of the day, not a bad thing. Yeah, and if those arguments weren't enough to bury Trump's argument even further down in the ground, they actually addressed the fact that Trump's lawyers argued against impeachment because he could be indicted. They brought that up. They said, it's in the congressional record. I was so glad they brought it up in the hearing. And they bring it up here again. And it's so important. They say, during President Trump's 2021 impeachment proceedings for incitement of insurrection,

his counsel argued that instead of post-presidency impeachment, you shouldn't do that. We don't need to impeach because the appropriate vehicle for investigation, prosecution, and punishment is the Article III courts as we have a judicial process and an investigative process to which no former office holder office so it is an office. To which former office holder is immune so there you go again Colorado he the Trump's lawyers during impeachment said he was that he was an office holder and that the presidency was an office. And then assure us all that he was subject to the to the jurisdiction of the article three courts that Are not allowed to review the Contradictory there, but okay, we're gonna cherry pick Marbury and say article three courts can't review me

But during impeachment I'm gonna say hey, I can be reviewed by article three courts. So don't impeach me exactly It's his all back and forth. Like I'm not an officer when it comes to Section 3 of the quarantine amendment, but I sure am when it comes to trying to get the DOJ to represent me in the aging Carol case. He takes whichever position suits him at the moment and it's going to bite him in the ass. And then of course they bring up the take care clause too. That's another, that's the final thing that just buries his argument totally. His argument that presidents have to be immune or they can't do their job. They say there's also a profound article two interest in the enforcement of federal criminal

laws. The president has constitutionally mandated duty to take care that the laws be faithfully executed. It would be, as you said, Andrew, a striking paradox if the president, who alone is vested with the constitutional duty to take care that the laws be faithfully executed, were the sole officer capable of defying those laws with impunity. So there's the, as we said, the third time they call the president and the presidency an office or an officer of the United States. And then they say, we therefore conclude that functional policy considerations rooted

in the structure of our government do not immunize former presidents from federal prosecution. It's an interesting section in the opinion because on the one hand, it's not really a legal argument, right? And you don't often see courts really taking this kind of a detour or a side trip into policy concerns. I'm not suggesting that it was an inappropriate thing for them to consider, but I think that you're seeing it included here

because they want to specifically address, and then of course, refute every single argument that he raised. And some of the arguments you... Right, and some of those arguments are not traditionally legal. You know, we'll get to this later where they kind of give him this left-handed smack over his principles of double jeopardy, his reliance not on the double jeopardy clause, but on just some sense of double jeopardy that somehow imbued in the impeachment clause.

Yeah, those arguments are a little tougher for courts because it's not like a real legal thing, but this court did not shy away. They just dove right in and addressed the things that he raised and really dismissed them, I think, in a pretty convincing way. Yeah, but you wanted jurisdiction. You got it. He might have been better off arguing that they didn't have jurisdiction. We withdraw the motion on lack of jurisdiction. You guys don't have jurisdiction. Come on, you don't have jurisdiction. Midland asphalt, please. Yeah. Because that could have been remanded and they have to be redone and then Supreme Court might have been more likely to take it up. If his object was to delay, he probably should have argued

that they didn't have jurisdiction here. But boy, you asked for it. And speaking of that, more about Judge Lodig's amicus brief, immunity from this specific indictment. Remember how Judge Lodig was like, yeah, you can't be immune, but you especially can't be immune

for trying to overthrow the government and block the peaceful transfer of power because of the executive vesting clause of the constitution, the strong presidency. And you know, the that whole argument where, you know, he got the double tap earlier, like not only are you not immune, but you're especially especially not immune in this particular instance, because we have to take this argue these indictments is true. And they say, um, oh, go ahead. disargue these indictments is true. And they say, oh, go ahead. In a way, what they're saying is like, this is the perfect case to address this issue of

presidential immunity, because it's so clearly could not possibly apply on these facts. It's, you know, to, the harder case would have been, A harder case would have been, let's say, Biden decides to declare war on, I don't know, Canada. And some prosecutor indicts him for murder for over the deaths of Canadians who were killed in the military action. Like that's a harder case, because that's a discretionary act

well within a constitutional authority of the commander in chief authority to decide where and how to defend the United States. So could you be held criminally liable for, you know, traditional murder in those circumstances? Probably not. But it's, that would be like more of a dilemma for an appellate court to have to get their heads around. This one is like, you broke the law in an effort to cheat and hold on to power. That's like exactly why you want presidents to have to obey the law. Yeah. And they say, in addition to the generally applicable concerns discussed, Supra, the allegations of this indictment implicate the Article II Interests investing authority in a new president and the citizenry's interest in democratically

selecting its president. The alleged conduct violated the constitutionally established design for determining the results of a presidential election, as well as the Electoral Act of 1887, neither of which establishes a role for the president in counting or certifying electoral college votes. This is not your job, sir. The president, of course, also has a duty under the Take Care Clause to faithfully execute these laws. This duty encompasses following the legal procedures for determining election results and ensuring that executive power vests in the new president at the constitutionally appointed time. To the extent the former president maintains that the post-2020 election litigation that his campaign and supporters unsuccessfully pursued

implemented his take care duty, he is in error. In error. Former president Trump's alleged conduct conflicts with his constitutional mandate to enforce the laws. This particular case is like, this is like extra shut up, sir. Thus, the quadrennial presidential election is a crucial check on executive power because a president who adopts unpopular policies or violates the law can be voted out of office. And that was Judge Ludwig's driving point that that is a check on his power, the voters. That's right. And that that that that vesting clause, the quadranial presidential election,

every four years, right? That's the whole ball of wax. Former, they say, they go on to say, former President Trump's alleged efforts to remain in power, despite losing the election were, if proven, an unprecedented assault on the structure of our government. He allegedly injected himself into a process in which the president has no role, which is the counting and certifying of the electoral college votes, thereby undermining constitutionally established procedures and the will of Congress. We cannot accept former President Trump's claim that a president has unbounded authority

to commit crimes that would neutralize the most fundamental check on executive power, the recognition and implementation of election results. They say that the voters, we are the most fundamental check on executive power. They go on to say, nor can we sanction his apparent contention that the executive has carte blanche to violate the rights of individual citizens to vote and have their votes count. Why does that sound familiar? Title 18, U.S. Code, Section 241, the conspiracy against rights. Jack Smith says in his indictment that he conspired to violate the rights of individual citizens

to vote and have their votes count. And they don't cite the indictment here. They are just echoing. Echoing. What Jack Smith is charging. It's very powerful, very powerful. And I think it's, you know, I immediately was kind of seeing Judge Ludig's reasoning

coming through here as well. And I think it shows you the strength of that amicus brief that he was the first one to really point out this basic idea that if the president is immune from criminal prosecution, then he no longer has to follow the vesting clause, which means he could stay forever. And there's no, there would be no recourse, no recourse for the voters who voted for someone else,

no recourse for, nothing. The absurdity of that, well, his example, I think, exposed the absurdity of the motion. And the judges clearly responded to that here. They sure did. And then they actually go on to say, at bottom, former President Trump's stance would collapse our system of separated powers

by placing the president beyond the reach of all three branches. Presidential immunity against federal indictment would mean that as to the president, the Congress could not legislate. The executive could not prosecute and the judiciary could not review. We could not accept that the office, the office, there's number four, of the presidency places its former occupants above the law for all time thereafter. Careful evaluation of these concerns leads us to conclude there is no functional justification for immunizing former presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the indictment. And so holding, we act, quote, not in derogation of the separation of powers, but to maintain

their proper balance. Fantastic. I think that's another quote from Youngstown, isn't it? Yeah. I think it is too. Yeah. It's... Lots of precedent here. Yeah. It's a resounding opinion and just very,

very, very conclusively and persuasively presented. Yeah. Airtight. Next, we're going to talk about the impeachment judgment clause, but we do have to take one more break. Everybody stick around. We'll be're back. And now we're onto the final kind of big section of the opinion, and that is the part that deals with the impeachment judgment clause claim. Now this one, A.G., you're're gonna remember, this is Trump's argument that...

Go ahead, try to explain it with a straight face. I'm trying to put this together in my head in a way that's understandable. Trump's argument that he cannot be charged criminally because he was impeached by the House, but acquitted by the Senate. And if he were then prosecuted for conduct that's generally the

same, it would essentially result in some sort of double jeopardy-ish situation. And I say ish because he never sides to the double jeopardy clause in his argument. And the judges point this out in what I think is an indication of some frustration on their part. He just kind of claims that it seems like double jeopardy if he were impeached and then acquitted to try him again for it. His biggest problem is that he conceded that if he were impeached and convicted, then he could be prosecuted after he left office, which raises the question. Which actually seems more like double jeopardy. Right, it's more double jeopardy.

This is the thing that's been bothering me so much about this argument. It's still not double jeopardy, but it's more like double jeopardy than your thing. It's right. I mean, there's so many fallacies here. I sit in my kitchen at the bar, like eating breakfast stuff. And I rant and rave about these things

to no one off the top of my head. But this one really gets me going because if your claim is that the political process of impeachment attached some sort of jeopardy and therefore you can't be placed in jeopardy again once you've left office. And that's very generally his claim. Well, the same thing happens

if you got impeached and convicted. So it's still two times you're getting charged for the same thing, but I don't know. Anyway, that's my very simplistic analysis of, or to my legal conclusion that Trump's argument is nuts. But you'll get a much better articulated version from the court here, where they say the strongest evidence against former President Trump's claim of immunity is found in the words of the Constitution. The impeachment judgment clause provides that, quote, judgment in cases of impeachment shall not extend further than to removal from office

and disqualification to hold and enjoy any office of honor, trust, or profit under the United States. But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law." I think my favorite is that, you know, first they attack all the Marbury thing. Like your Marbury defense is so wrong that Marbury actually proves you wrong and says you should be prosecuted. Then they say the strongest evidence against your claim of immunity is actually in the impeachment judgment clause that you say should be a reason for you not to be critical. The clause that you're cloaking yourself with right now to claim some kind of special immunity is actually the clause that makes it very clear that you don't have any.

Yeah. Your two arguments, your two citations are actually your worst enemies. Yes. It's enemies. Yes. It's fantastic. Yeah. So, as we've been saying, Trump argued that to be criminally indicted, he must be impeached and convicted first. And that position, of course, narrowed the party's arguments to the impeachment judgment

clause. Remember, that was Judge Pan's point when asked if a president could be prosecuted if he ordered SEAL Team 6 to assassinate a political rival. Okay, so to begin, former President Trump's reliance on a negative implication is an immediate red flag. I love this line. The Framers knew how to explicitly grant criminal immunity in the Constitution as they did to

legislators in the speech and debate clause. That's a total reference to what Judge Chutkin was putting down as well. The impeachment judgment clause merely states that the party convicted shall nevertheless be subject to criminal prosecution. The text says nothing about non-convicted officials. Former President Trump's reading rests on a logical fallacy,

stating that if the president is convicted, he can be prosecuted. Doesn't necessarily mean that if the president is not convicted, he cannot be prosecuted. And I mean, how ironic or rich maybe isn't this is a quote from NLRB versus Noel Canning, Justice Scalia concurring, in which he of course explains the fallacy of the inverse. Yeah, so that's got to hurt a little bit. That's what Judge Shut can brought up, remember? And I didn't know that it was a Scalia quote, the fallacy of the inverse, otherwise known as denying the antecedent, the logical fallacy she brought up in her ruling,

and they bring it up here again, and it came from Scalia. Attributed to Scalia, yeah. So this leads us to conclude that under the best reading of the impeachment judgment clause, a former president may be criminally prosecuted in federal court without any requirement that he first be impeached and convicted for the same conduct. Yeah, so here they say,

because the president has no official role in the certification of the Electoral College vote, much of the misconduct alleged in the indictment reasonably can be viewed as that of an office seeker, including allegedly organizing alternative slates of electors and attempting to pressure the vice president and members of Congress to accept those electors in the certification proceeding. It is thus doubtful that quote, all five types of conduct alleged in the indictment constitute official acts. That quote is of course a reference to Trump's motion, which they are throwing in there to point out how wrong it is. That was kind of another kind of side benefit I thought of this opinion is that

it really comes out very conclusively resolving any question about whether or not the acts in the indictment were official conduct. Clearly, this court does not believe that any of the allegations involve things that would have been within the outer perimeter of presidential responsibilities. Yeah, that's one of my favorite even ifs. You know, even if because his argument is you can't I need immunity for official acts and the Court's like hang on a second buddy. First of all, you don't get immunity, but even if you did this was not an official act. You have no role. That's right. The executive has no role in certification of the electoral college vote. So no, no, no, no, no.

That's the great even if. And even if regular double jeopardy somehow applied, the court says, under precedent interpreting the double jeopardy clause, former President Trump's impeachment acquittal does not bar his subsequent criminal prosecution for two reasons. One, an impeachment does not result in criminal punishments. And two, the indictment doesn't charge the same offense as the single count in the impeachment resolution. There was one count in the impeachment. So even if you had Fifth Amendment double jeopardy or somehow double

jeopardy if you were convicted by the Senate in an impeachment, first of all, it's not impeachment, it's not criminal. But even if let's pretend it was, this does not charge the same offense. That's right. That's right. And they go through the very mechanical application of the standard there. If the bottom line is if at least, if every charge in the indictment contains at least one element of proof that is not included in the charge, the single charge that he faced in the impeachment, then the charges are not the same.

And so he fails on both of those counts, right? Yeah, so that's like an extra. That's like the fourth layer of even if, even if inception. Yes. And then they go on to talk about block burger. So the court goes on to say, even if we assume that an impeachment trial

is criminal under the double jeopardy clause, the crimes alleged in the indictment differ from the offense for which President Trump was impeached. Now determining whether two charges are the same for double jeopardy purposes, courts apply what's known as the same elements test. It's also known as the block burger test. Not smash burger, but block burger.

Okay, under the block burger test, none of the four offenses alleged in the indictment is the same as the sole offense charged in the article of impeachment. The indicted criminal counts include conspiracy to defraud the United States under 18 USC section 371, conspiracy to obstruct and obstructing an official proceeding under 18 USC sections 1512 C2

under 18 USC sections, 1512 C2 and section K, and conspiracy to deprive one or more individuals of the right to vote under 18 USC section 241. By contrast, the article impeachment charged former President Trump with, wait for it, incitement of insurrection. So what does that bring us back to, AG? What familiar thing are we both thinking right now? How many times we've talked about the fact that

Jack Smith did not charge incitement of an insurrection in his indictment. And again, brilliant. I doubt it would have made a difference in the immunity argument, but now it's something that doesn't even have to be argued because as we go to the fifth level of even if, you know, we can say double jeopardy wouldn't apply here anyway, because you weren't charged by Jack Smith with an incitement of an insurrection. Yes.

Which is what the impeachment was about. because you weren't charged by Jack Smith with the incitement of an insurrection. Yes. Which is what the impeachment was about. It really has to make you wonder though, right? I mean, when we've been kind of defending his decision not to include incitement in the indictment. And that criticism has kind of blossomed in a way in light of the 14th Amendment argument that's going to go before the Supreme

Court, right? Boy, if it's not even... And we talked about it in respect to the First Amendment. Right. We'd have to have a First Amendment argument for freedom of speech. And I think those First Amendment concerns are probably the things that were foremost in the minds of the special counsel team when deciding not to go near the insurrection charge.

They're probably thinking, there's a third rail there, a first amendment problems. That thing could get hung up, be quite complicated, could give rise to all sorts of Supreme court eligible appeals. Let's just stay away from it. You wonder, did they go this far down the rabbit hole and think, hmm, he could use some sort of crazy double jeopardy-ish argument to claim presidential immunity and not you. Maybe not.

We'll seal the deal for it not to be the same charges if we don't put incitement in there. I don't know. It's hard to say. It's hard to see them seeing it that clearly from that far off, but it's, hey, you got to give them credit because yet another reason why it was good to leave that out. Well, you'd only have four levels of even if instead of five at that point. But you're talking about considering that during the impeachment they did incitement of insurrection, it might have been like, oh, also, aside from the First Amendment problems that we would run into with incitement of insurrection charges,

he could come up with some, you know, Fifth Amendment double jeopardy argument, which would at the very least result in a very good automatic interlocutory appeal and delay the proceedings. But it would still have to be adjudicated, so it wouldn't really save any time. So I don't know, I don't know, but works out well here. There you go, there you go. Yeah, and they go on to say,

thus well-established law interpreting the double jeopardy clause undermines rather than supports. Former President Trump's argument that he may not be prosecuted. Of course it does. Ay, ay, ay. Yeah, yeah, yeah. Yeah, so then they conclude, yeah?

Yes, so conclusion. We have balanced former President Trump's asserted interest in executive immunity against the vital public interests that favor allowing this prosecution to proceed. We conclude that concerns of public policy, especially as illuminated by our history and the structure of our government, compel the rejection of his claim of immunity in this case. We've also considered his contention that he is entitled to categorical immunity from criminal liability for any assertedly official action that he took as president, a contention that is unsupported by precedent, history,

or the text and structure of the Constitution. Finally, we are unpersuaded by his argument that this prosecution is barred by, quote, double jeopardy principles. Accordingly, the order of the district court is affirmed. Ta-da! And they have a pretty nice footnote at the end, by the way too. I was wondering if they were gonna invoke Edwin Meese.

And they did, right? Because you remember, Edwin Meese filed an amicus brief arguing that special counsel Smith is totally invalid because no statute authorizes the position Smith occupies and the special counsel is a principal officer who must be nominated by the president and confirmed by the Senate. Now they say on appeal from collateral order, we generally lack jurisdiction to consider

these issues. So we're just going to let you know, Ed, Mr. Meese, we don't have jurisdiction to decide this. Yeah, that's like the participation trophy. It's like, thanks for coming, but no. No soup for you here, Ed. Yeah, it's a pretty, it's a very satisfying read. 57 pages goes pretty quick.

So recommend it for anybody who's interested in the details, but it's, you know, it is really well constructed. It's incredibly well cited. They address every aspect of his motion, every argument, every example, and they basically just completely shut the thing down in an unequivocal way. And like we said at the beginning,

it's hard to imagine what the Supreme Court justices will look at here and say, wait a second, this is super important and it's undecided or we don't support what the court did here. We see the law completely differently. And so therefore we wanna take this and take our cut at it. I just find that to be hard to imagine happening. Yeah, man, I got to say this ruling has it all. Okay. It has total jurisdiction. They invoke

Nixon getting a pardon by Ford. They talk about denying the antecedent. I thought that was great. All the even ifs. The executive vest in clause brought up by Judge Ludwig. The fact that the people have the most powerful check on the presidency and the executive. They brought up the fact that he argued during his impeachment that he could be criminally indicted. So don't impeach me. This has it all.

Two enthusiastic thumbs up from me on this ruling. Heck yeah. That's my sis' school in Ebert. Two enthusiastic thumbs up. I feel like I'm just like eating popcorn, staring at the screen. Yeah. Who has two thumbs and loves this ruling? That's right. Yeah, totally.

It's a good one. We were getting a little panicky waiting for it, but it was worth it when it arrived. It's on a hot scheduling timeline right now, which I think is good. And we'll see. Fingers crossed, they don't grant cert. Fingers crossed, they do not grant cert. That's not going to happen quickly, right? Because he gets to decide whether or not to file his appeal by Monday.

Then Jack Smith will get an opportunity to respond. Then Trump will get an opportunity to respond to Jack Smith's submission. Then the court is going to take some time to decide whether or not they're going to grant cert. I mean, I. But the mandate goes in effect Monday. Steve Vladik, I checked his feed. Yeah. But the mandate goes in effect Monday. Steve Vladik, I checked his feed.

The DC proceedings will start going until SCOTUS intervenes, until an if, and that starts on Monday. Cause that's when the mandate goes into effect. So whoop, whoop. So we'll see, we'll see. Could be back on track and keep your fingers crossed. Yeah, and we should consider the alternative.

If SCOTUS grants cert, this whole thing goes on pause again. And we have to wait for them to rule, and we would get that ruling in June. And that, my friends, would push this possibly past the election. Yeah. So we have to consider that. Exactly.

All right. Thank you very much. This has been an emergency episode of Jack, the podcast of all things special counsel. Do you have any final thoughts before we get out of here? You know what? I'm just now, I've got a new date on the calendar to look forward to and it's Monday. Every one of these developments just gives you a new thing to focus on. So yeah, we'll see what happens then. Yeah. And I will be watching, I believe, I think both CNN and MSNBC are gonna be broadcasting the audio arguments from the Supreme Court

for section three of the 14th Amendment on Thursday morning. And I'm gonna be looking for citations from this ruling, the at least four times that they confirmed that the president is an officer of the United States and that the presidency is an office of the United States because that is one of Trump's arguments against being Taken off the ballot in Colorado. So everybody, thank you so much again for listening We will publish this as soon as we are done editing it

It may not be as fancily edited as most Jack episodes because we want to get this out in a timely fashion So you might hear some extra ums or aas. We do apologize, but for us today, it's about speed. So we're going to get it out on the airwaves for you as soon as possible. Thank you very much. I've been Allison Gill. I'm Andy McCabe. We'll see you next week. M.S.W. media.