Legal AF by MeidasTouch - FED UP Judge Luttig RIPS the Supreme Court’s ABOMINATION

Episode Date: July 8, 2024

In a special Legal AF interview, conservative icon and defender of the Constitution, former Judge J. Michael Luttig joins Michael Popok for a candid and hard hitting critique of the Supreme Court’s unprecedented decision to give absolute immunity for crimes against democracy to Donald J Trump. Judge Luttig doesn’t pull any punches, as he calls the decision an “abomination” and one of the worst decisions in SCOTUS history, and one purposefully designed to benefit just one person—Trump. Visit https://meidastouch.com for more! Join the Legal AF Patreon: https://Patreon.com/LegalAF Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af MissTrial: https://meidasnews.com/tag/miss-trial The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Uncovered: https://www.meidastouch.com/tag/maga-uncovered Coalition of the Sane: https://meidasnews.com/tag/coalition-of-the-sane Learn more about your ad choices. Visit megaphone.fm/adchoices

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Benefits vary by card, other conditions apply. Welcome to a special edition of Legal AF. We are honored and thrilled to have Judge J. Michael Ludig back with us, icon, lion of the Constitution, defender of the Constitution, and who has some strong opinions that we need to hear from, our audience needs to hear from, about Trump versus the United States and the immunity decision, the 63 majority of the Supreme Court written and penned by Chief Justice Roberts just issued.

What does it mean when we talk about core presidential duties expressed in the Constitution for which a president named Trump or otherwise has absolute immunity? What are the contours of that? What is official duties that are given a presumption of immunity? And how would the prosecutors ever overcome the presumption to show that there's no danger of intrusion on the executive branch? And then what in this case or in future cases would constitute unofficial conduct, which is the part that's prosecutable under the ruling of the United States Supreme Court. However, they've also built in certain limitations and certain hurdles for the prosecution.

They can never inquire as to the motive of the occupant of the White House at the time in any type of evidence or documents or testimony. And there's also evidential hurdles as well where you can never put on now based on this ruling, any evidence of official conduct to try to prove that what is outside the outer boundaries is unofficial conduct.

So that is what we are now left with. And there's various scenarios that have been played out on social media, media, and even among our audience, Judge Ludig, about, well, does this mean, as posited in a way by the dissent led by Justice Sotomayor, that the SEAL Team Six scenario, which gave pause to the DC Circuit Court, is possible? Could somebody who is the president or outgoing president of the United States as commander in chief or otherwise, give a command for a drone strike against the other party or its leader?

Could he sell pardons as part of his core constitutional power? What are the limits? I mean, they're not just thought experiments anymore. It's stuff that's keeping our audience up at night. And I can't think of anybody better to address it than Judge J. Michael Ludig. Judge, thanks for being back with us for this interview.

Thank you, Michael. It's always a pleasure. In fact, it's an honor always to be on with you and the Midas Touch Network. So Judge, let's kick it off. You have some good and strong opinions from your vantage point of being a constitutional scholar, a former federal appellate judge, and defender of the Constitution, even from the federalist wing of the party. What's your take on

what Justice Roberts has pulled together, cobbled together with a six to three majority and what are its implications and ramifications moving forward? Michael, the Supreme Court's decision in Trump against the United States represents the un-souling the souling of America. America's democracy and the rule of law are the heart and soul of America. It is our democracy and the rule of law that has made America the envy of the world and the beacon of freedom to the world for almost 250 years. The Supreme Court cut the heart and soul out of America with this abominable decision

of constitutional interpretation, or should I say so-called constitutional interpretation, that the defining maxim, if you will, of America since its founding has been that in America, no man is above the law. We can never be said, that can never be said about America again after Monday's decision by the Supreme Court without any question whatsoever. The Supreme Court of the United States held in Trump versus United States, that the president of the United States, and in particular, the former president of the United States, Donald Trump, is above the law.

This decision within two days, if not sooner, was being compared to the most approprious, ignominious decisions in all of Supreme Court history, such as Dred Scott and Plessy against Ferguson and Korematsu against United States. I even tweeted that Sharon Davies, the president and CEO of the Kettering Foundation, I think one day after the decision wrote that Trump against United States

now takes its place alongside those worst decisions place alongside those worst decisions in Supreme Court history. I want to try to respond to the concerns that I know that your viewers have and frankly all Americans have about this decision. I wish I could allay those concerns, but I cannot. But the most important thing that I want to say today about the decision is this. The Supreme Court decided to get the Supreme Court decided to give absolute immunity to Donald Trump and then wrote the opinion to justify it. How do we know it? This is how we know it. Donald Trump has been charged with the gravest crimes possible against the of America. Those charges and those allegations were the only issue before this Supreme Court.

That's all the court was required to decide. And by the way, for almost 250 years, that's the only issue that any Supreme Court in history would have decided. What did this Supreme Court do? the issue of presidential immunity for all times, in all contexts, Michael, possible under the Constitution. It is the precise opposite of what any court, any court of the United States, and especially the Supreme Court of the United States ever does.

Now, why do they do it? There's only one possible explanation. They had to decide that the president, that Donald Trump had absolute immunity because he is alleged to have committed the gravest crimes against America. if they were going to hold that he was immune, they had to adopt his argument that he was absolutely immune from even the gravest crimes that a president could commit against the United States of America.

The court had no choice if it were going to hold that Donald Trump was immune from prosecution for the grave offenses that he committed. This is a classic case where the Supreme Court decided what it wanted to decide and then went in search of the constitutional reasoning that would support that decision. Unfortunately for America, there was no constitutional reasoning. None based in the Constitution, the court's precedents, history, anything, anywhere to support that decision that they made before this argument ever took place. And Judge, let me throw a couple of observations or comments in the opinion itself, and then you and I can talk about it.

I knew we were in trouble. Well, there's many ways I knew we were in trouble when I started reading the opinion. One of them was how they so downplayed the criminal conduct that's listed in the indictment. It's just a matter of a conversation that Donald Trump had with some people in the Attorney General's office or where he threatened to fire them and already made the decision.

First saying they're only a reviewing court and not a trial court. That the record was incomplete. It should go back to Judge Chuckin, of course. But let us jump in and tell you which of these is absolute immunity. And that's the conversations he had with acting Attorney General Jeff Rosen, with Jeffrey Clark, the weaponization of the Department of Justice, and the use of it to not just to investigate whether there was election fraud, to promote fraudulent theories that there was election

fraud in order to stop the peaceful transfer of power. The way that they so downplayed and watered down the indictment, that combined with an oral argument, everybody up there, all nine acknowledged that this was the first time in 250 plus years that a former president had ever been prosecuted. In other words, there's no floodgates that are going to be open. Donald Trump is the first criminal president other than Nixon that we've seen in a long, long time. Yet in the opinion, Robert said one of the justifications for absolute immunity or all these levels of immunity is because if they didn't do it, there would be some enterprising prosecutor in a future administration who would use the same statute and would open the floodgates to prosecutions.

That has never happened in 250 plus years. Soon as I saw that, your reverse engineering theory makes absolute and perfect sense. Michael, the Supreme Court majority adopted, embraced every single one of the preposterous arguments made by Donald Trump. Going back to argument, as you just did, remember, I came on your show very soon thereafter.

And one of the first things I said is the argument was astonishing in every respect, but in this respect in particular, namely that the Supreme Court of the United States for two and a half hours never talked about the only issue before it. In fact, I think I said it on your show that I could only remember two times,

that I remembered two times when the parties tried to bring the court back to the issues that were before the court. And in both instances, the respective justices said something to the effect, counsel, I'm not interested in the facts of this case. I'm asking interested in the facts of this case I'm asking this hypothetical the hypotheticals themselves Michael were preposterous not only for the reasons you suggest but also for the reason that I laid out at the beginning here, which is the president is alleged to have committed the gravest crimes under the

Constitution and against the United States of America possible. Any lawyer, frankly, any man on the street would understand that there is not a hypothetical that even needs to be asked. One only, one, and also courts and lawyers, they only ask hypotheticals to explore the outer limits of the rule that they're contemplating, or the rule that's being argued for by one or the other of the parties. Which is to say, the obvious, if the allegation before the court is that the President of the United States has committed the gravest crimes against the country possible, there is no need for any hypothetical at all unless you are thinking what the court was obviously thinking that day and what it did in this decision, which is hold that for even the gravest crimes against the United States of America, the president of the United States and Donald Trump in particular is immune from prosecution.

Exactly, Judge. The majority, rather than do what you did, which was to say when you're talking about crimes against Article II, the very thing that gives you your power, but that also requires you to peacefully transfer at the appropriate time, when your entire crime is against the powers of Article 2, to then say that everything you do under Article 2 is somehow absolutely immune,

turns the whole thing on its head. I mean, there's no greater abuse of Article 2 by a president in history than what Donald Trump just did. I mean, let me throw something out at you that's hot off the presses. And as expected, I was going to ask you about Judge Justice Thomas being heard from and deciding to spend and spill most of his ink in his concurrencerence suggesting that the special counsel is just a regular person that has no business and no constitutional authority, delegated or otherwise, to be a prosecutor, that the whole indictment should be dismissed for that reason alone. Now, while the majority opinion

did not address that at all, we predicted, as everybody else did, and we did it on Legal AF, that this was going to be something that Judge Cannon in Miami, who's considering the issue, because it's up on her with a motion to dismiss, now we just found out as we're recording this, that Trump has filed a paper asking Judge Cannon to adopt Justice Thomas's position that the special counsel is invalid and it was not properly delegated authority,

was not approved by Congress, and is just a regular guy. He's not a prosecutor at all. And so the indictment should disappear. What do you think about that? Well, it's just another example, Michael, of the multiple ways in which this Supreme Court and beyond the proper judicial role to ensure that Donald Trump would never be prosecuted by the United States of America for any crime, any of the crimes that he committed against the United States. And yes, it was only Justice Thomas

who spoke about the special counsel, but every one of the other justices who joined this opinion were just as intent, if not more so than Justice Thomas, just as intent, if not more so than Justice Thomas, that Donald Trump would never be held accountable for his crimes against the United States of America while this court sits. So, I totally agree with you. They're just coming up with as many things in the toolbox to throw sands in the gear. I've never seen a decision so focused on not the institution of the presidency. They said, this is the first time we've had to speak about this, but so focused on one person in particular, regardless of what it means for the generations to follow. They just...

That's exactly right, Michael. This decision was for Donald Trump... Great. ...the person, the candidate, and the former president of the United States. Well, we know it's the candidate because they dropped the opinion on July whatever, the very final day before they went on their summer vacations.

On the future, which they don't seem to care about at all. And that's why I'll say it. I've always thought now Chief Justice Roberts is circling the drain of history here. You said this is an opinion that stands with Korematsu and Dred Scott and all of the scars and black stains on the on the constant on the United States Supreme Court and I agree. So so now you take the the founding fathers and the framers who create a delicate balance of co-equal branches of government and checks and

balances and now you completely put your big fat thumb on the scale in favor of the Imperial executive president because it's not just Trump that this is going to apply to in the future for as long as this group is together, this band is together. And now you've given this one person why you say with lip service in the opinion. Robert says, no man is above the law. Of course, but you've just so imbalanced this delicate balance that now all that is left to check a potentially criminal slash murderous president is the impeachment, conviction and removal provision, which Justice Roberts does a little bit of genuflecting to

when he says that's a political process. So now we got to be left with high crimes and misdemeanors and, and, and a Senate and a house that are united about the criminality or high crimes and misdemeanors in order to get the person out who'll never, and that's it. That's the only guard rail now for the presidency, right? Yes, absolutely. And the Chief Justice's statement that, of course, no man is above the law was about as half-hearted as any statement of that fundamental maxim that I've ever heard. that I've ever heard. And if I had written that opinion,

I wouldn't have even had the gall to write those words at the very end, you know, as if an afterthought. That's what it looked like. It looked like we need to stick that in. So on page six of the opinion, and that will now go down in history as an infamous paragraph trying to summarize, Robert says, we conclude that under our constitutional structure of separated powers, the nature of presidential power requires that a former president have some immunity from criminal

prosecution for official acts during his tenure in office. This is about official acts, at least with respect to the president's exercise of his core constitutional powers, not completely defined here. This immunity must be absolute. As for his remaining official acts, he is also entitled to immunity, although at this stage we don't have to decide what type of immunity. We'll leave it to the trial judge, which they then give a commandment to in mandate about what she's supposed to do next. Now, I took slight solace in that, again, a lot of

drive-by references to major constitutional principles, which shows you how sloppy this decision was, because as you said, it's reversed engineered to back into the result that they wanted. So on page seven, Chief Justice Roberts says, if the president claims authority to act, but in fact, exercises mere individual will and authority without law, the courts may say so, citing Youngstown. In Youngstown, we held that President Truman exceeded his constitutional authority when he seized most of the nation's steel mills.

But once it's determined that the president acted within the scope of his exclusive authority, his discretion in exercising such authority cannot be subject to further judicial examination. And by the way, you can't look at motive. And by the way, we're gonna limit the amount of evidence you can put on against the person at all. And if you have anything left, that's a prosecutable crime.

Judge Chutkin, good luck with that. And we'll see you back on another appeal. That's the way I read this. Well, and of course you're right. Michael, the entire opinion read like a first year Moot court brief. I wrote one of those. Before the Moot court argument on this very case.

It was sophomoric. It was sophomoric and it was childish, frankly. So let me run a couple of scenarios by you that is keeping our audience and me up at night. I mean, frankly, when you were listing all of the scourges on the court and the decisions, when you got to Korematsu after, I mean, I literally got my hair on the back of my neck stood up. Because you're so right to put it in that kind of historical perspective. And future, I'm

hoping that future Supreme Court's in the right hands are going to fix the this mess that's happened now. But we got to live with it. We live with it for the time being. When they say, well, for official acts, stretch to the outer perimeters. We're going to give a presumption of immunity, but we're going to allow the prosecutor to try to prove that applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the executive branch. Okay, so in exercising his, this is even core,

this is pardons, pay to play. Trump gets back into office, decides to sell pardons. Is that, can we prosecute that? Of course not. And you're brilliant and I don't need to tell you that, but the passage you read is the passage that I read out loud to my wife twice, minutes after the decision came down. that I read out loud to my wife twice,

minutes after the decision came down, and I told her, this is the sentence that proves that the court has now given absolute immunity to Donald Trump for any crime that he committed and any crime that any president commits. Because as your question suggests, it is impossible given the nature and scope of presidential powers, both constitutional and by law of the United States,

to ever prove to this court's satisfaction to be sure that there would be no intrusion on the executive's powers. Right. Right, right. Once you stretch, once you have core, which is still ill-defined here, even though it's sort of like obscenity, we know it when we see it, we used to think so. But now when you have to have that as your major first touchstone, yet it's not defined, which is what you're saying, and then you stretch official conduct like silly string, silly putty, as far out as possible, all of those overlapping circles for the Venn diagram, how could a

prosecutor ever overcome that burden? So even though people are thinking, well, maybe it's ludicrous. The drone strike of your opponent would clearly be outside the outer boundaries or wouldn't be core or would exceed constitutional authority. I don't know about that based on lack of motive being able to, motive can't be proven, limited evidence on official conduct and this standard. I'm not so sure about that anymore. What do you think? No, and you're justified in at least being unsure. Most constitutional commentators that I've read in the past three or four days have not

been so equivocal. They have stated their view that that drone strike would be immune from prosecution. And I certainly believe that it would based on the literal words of the Supreme Court's decision. This was beyond astonishing. It was stunning. beyond astonishing. It was stunning. Never before in 250 years of our history, Michael, has anyone

suggested that a president would be immune from prosecution for any crime at all. This whole dipotomy, if you will, between official and unofficial acts of the president, which is made up out of whole cloth, your viewers and listeners must understand there is nothing at all in the Constitution of the United States that supports this ruling. There is nothing at all in 250 years of Supreme Court precedence that supports this decision and is contrary to American democracy, the Constitution, and the rule of law. The framers, just to carry forward the logic of your point, your honor, the framers could have with their quill pen written in an immunity for the executive branch.

They did it in some other contexts. They knew how to do it when they wanted to do it. They didn't do it here because I think that is anathema to the delicate balance of checks and balance. Congress in the sphere of making legislation, yes, dutiful, faithful execution of it is in the presidential sphere, but everybody has to, in order for there to, if there wasn't a concept of checks and balances,

I would think, all right, they're just three co-equal branches. But what happened to the checks and balances? And if you put somebody above the laws of Congress, which are the criminal laws that we're talking about, and give them immunity for obvious criminal conduct, how do you possibly rebalance? You haven't. They've accomplished one of their articles of faith. They have supported the creation or the re-formation of an imperial president, a Leviathan, who sits above the government like an eagle instead of being a co-equal branch of the government. They have resurrected in America I have resurrected in America a king. It's just that simple. Yesterday was Independence Day.

And I was so struck by the juxtaposition of July 4th with this opinion that I wrote something to the effect that it's a cruel irony that the Supreme Court decided Trump against United States only two days before Independence Day 2024. America fought and Americans fought a revolution against the British monarchy and the ruling King George III over 250 years ago in order to secure this nation's independence from the British Empire and to establish a constitution and a rule of law under which a king would have no place whatsoever. And only two days before Independence Day 2024, the Supreme Court re-anointed, if you will, in cruel irony, the president of the United States as King.

And it was not just president of the United States, Michael, it was Donald Trump. Your honor, judge, I can't think of a better way to conclude our interview today. I think I'll paraphrase our president who said in his public address following the decision a decision that because the Supreme Court did not allow a person who is charged with a crime, in this case somebody who's running for president, who had been president, to go through the criminal justice system, the Court of Public Opinion and the voters on November 5th are going to have to decide now with the way this Supreme Court has interpreted presidential power and absolute immunity for it, which person that is currently running, not the one you may want to have run or on either side, which person currently running do you want to have in the office now holding these enormous

new powers that have been given to him by the United States Supreme Court. The choice is clear. It comes on November 5th. And Your Honor, I'm always thrilled when you agree to be on the show with us and address our audience. I didn't mean to suggest in the beginning that we were going to put minds at ease. We don't blow smoke or sunshine here. But there's no one around better than you to speak directly, honestly, truthfully and authentically about the Constitution and the presidency than you and I really thank you for being with us again.

Thank you, Michael and thank you Midas Touch. It's an honor. Heary Heary Legal AF Law Breakdown is now in session. Go beyond the headlines and get a deep dive into the important legal concepts you need to know and we discuss every day on Legal AF. Exclusive content you won't find anywhere else, all for the price of a couple of cups of coffee. Join us at Patreon.com slash Legal AF. That's Patreon.com slash Legal AF.