Legal AF by MeidasTouch - Judge Luttig Issues DIRE WARNING to Supreme Court over Trump Immunity

Episode Date: April 29, 2024

In a special Legal AF no holds barred exclusive interview, conservative constitutional scholar former appellate Judge J Michael Luttig joins Michael Popok again to explain why he is so disheartened with the Supreme Court oral argument on whether Trump should be granted immunity from criminal prosecution, and why it could lead to it “cutting the heart out of” and “unsouling” of our constitutional democracy. Join us on 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 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 Learn more about your ad choices. Visit megaphone.fm/adchoices

At this pivotal moment, and as our democracy is teetering, I welcome back to the show for a special interview former federal appellate judge J. Michael Ludwig for his strong views on what he just watched happened at the Supreme Court oral argument for whether Trump and future presidents will be given immunity from criminal prosecution when they try to overthrow democracy and stop the peaceful transfer of power required by our Constitution. Judge Ludwig, conservative icon, renowned constitutional scholar, shortlist for the Supreme Court who pulls no punches as a firebrand and defender of the rule of law and the Constitution. Welcome back to our show. Thank you, Michael. It's always a real pleasure to be on with you. Let's dive right in, Judge. You've just declared, I've read it on your social media,

based on your observations of what happened at oral argument this week, the right-wing justices of the Supreme Court, if they rule to provide immunity to an American president for attempting to overturn a presidential election and cling to power would in your words, quote, cut the heart out of America's democracy and the rule of law and un-soul the nation. You love this country, the rule of law, the constitution, and the Supreme Court's historic role in protecting our democracy from threats foreign and domestic. Why are you so disturbed by what you observed at this week's oral argument? Michael, the Americans' democracy and the rule of law are the heart and soul of the nation.

And it's for our democracy and for our rule of law that America has been known as the beacon of freedom to the world for the past almost 250 years. The former president's effort to overturn the 2020 presidential election in order to remain in power and to deprive his successor, Joe Biden, of the presidential powers to which he had, that he assumed by virtue of having been elected by the American people, which prevented for the first time in American history, the peaceful transfer of power from one president to the next, drew into question the America's democracy and the rule of law. Three and a half years since January 6th, 2021, the former president has continued to defy America

and the constitution. And he's unapologetic about what he caused on January 6th, 2021. This week, the Supreme Court heard the former president's argument that he is entitled to absolute immunity, absolute presidential immunity from prosecution for those crimes, those grave crimes against the United States of America, and frankly, any other crimes that he may have committed while he was in office. In fairness, I suppose, to his argument,

he argues that every president, all future presidents, should be immune from prosecution for crimes as they committed while in the office of the President of the United States. His argument, which gained some receptivity, it was Supreme Court this past week, is that unless a president, and in this case, he in particular, have absolute immunity for crimes that they commit against the United States of America, then he and they will be unable to effectively discharge their constitutional responsibilities

to faithfully execute the laws of the United States. That's frankly a preposterous argument. It's never even been thought of until Donald Trump came along. Under the constitution and laws of the United States, a president is never, and must never be immune from prosecution for offenses against the United States. Once he leaves office and is prosecutable under the rules of the Department of Justice. Judge, let me tell you that you saying that to our audience is so powerful to have somebody

in a position formally an appellate judge who knows this court well, who knows the people and the players on this court well. We're going to talk about people like Justice Gorsuch, Justice Kavanaugh, Chief Justice Roberts and what you observed about how they were leading the conversation and the direction they were leading it in our democracy too. But first, I want to play a clip that I think you hit on right now and for me resonated the most. It was Justice Katanji Brown Jackson, who for me is becoming an intellectual heavyweight. She wasn't already, but she was when she got on, but she is quickly establishing herself,

at least that the moderate and left wing of the court of being an intellectual heavyweight. Let's listen to how she put her fears about a lawless president who's in office. Mrs. Jackson? So I think I now understand better your position in your discussions with Justice Kavanaugh. It became clear that you were saying that for the private acts of a president there's no immunity, but for the official acts of the president there is immunity. Is that your position?

I agree with that. All right. So one thing that occurs to me is that this sort of difficult line drawing problem that we're having with all of these hypotheticals, is this a private act or a public act, is being necessitated by that assumption. Because of course, if official acts didn't get absolute immunity, then it wouldn't matter. We wouldn't have to identify which are private and which are public, correct?

That in fact is the approach of the D.C. Circuit. There's no determination that needs to be made. Right, but I'm just making, so to the extent we're worried about like how do we figure out whether it's private or public, we have to understand that we're only doing that because of an underlying assumption that the public acts get immunity. So let me explore that assumption. Why is it, as a matter of theory, and I'm hoping you can sort

of zoom way out here, that the president would not be required to follow the law when he is performing his official acts. But other people who have consequential jobs and who are required to follow the law make those determinations against the backdrop of that same kind of risk. So what is it about the president? I mean, I've heard you say it's because the president has to be able to act boldly, do, you know,

make kind of consequential decisions. I mean, sure, but again, there are lots of people who have to make life and death kinds of decisions, and yet they still have to follow the law. And if they don't, they could be sent to prison, et cetera, et cetera. I guess more worried about, you seem to be worried about the president being chilled.

I think that we would have a really significant opposite problem if the president wasn't chilled. If someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority could go into office knowing that there would be no potential penalty for committing crimes, I'm trying to understand what the disincentive is from turning the Oval Office

into the seat of criminal activity in this country. The seat of criminal activity in this country. Do you agree with Judge Justice Jackson? I absolutely do, Michael. This entire Now, this entire distinction between official acts, official acts that might give rise to criminal prosecution and private or personal or candidate acts that might give rise to criminal prosecution is a tempest and a teapot for almost 250 years since the founding of this nation. This line has never been suggested, let alone held to exist by the Supreme Court of the United States.

But I'm so confused by this for this reason. As Justice Jackson was saying, if anything, if anything, a president should be accountable for criminal acts taken in his official capacity as president of the United States of America. I of course agree that he or she should also be accountable for private or personal and of course candidate acts, but it's counterintuitive to me, Michael, to argue as the former president has done and as the Supreme Court is considering that the president of the United States should not be prosecutable and therefore should be immune from prosecution

for criminal acts against the United States committed in his official capacity as the president of the United States committed in his official capacity as the President of the United States. I simply do not get it, but there's no question at all that the Supreme Court is considering just that. Now, I will add this. The Supreme Court is concerned about the criminalization of presidential acts and actions

that ought not be criminalized. I understand that concern. That's not the case here. The Supreme Court has before one single case that presents one single question for decision. And that is whether a president of the United States can seek to overturn an election that he lost fair and square so as to remain in

power, depriving his successor of his rightful power by virtue of having been elected by the American people and at the same time, preventing the peaceful transfer of power for the first time in American history. That is the narrow, specific, and profoundly important question before the Supreme Court today. And it's the only question. And during this week's argument, which lasted over two and a half hours,

the Supreme Court barely even discussed that issue. At the same time, discussing everything else under the sun that is utterly irrelevant. And your brief that you filed along with others as an amicus was focused on that issue. That I don't know, it was almost like, well, you were encouraging the court and obviously the right wing of the court did not take up the invitation that you gave, which is the proper constitutional approach. You've got an indictment here about a president at the time that tried to cling to power and tried to prevent and get himself a second

term. That goes to core issues in the constitution. Your entire brief was about that, was about this particular set of crimes that have been charged could never be immune. And then you gave all the reasons over 50 pages why that was the case. How frustrated were you to listen to two and a half hours and not have that issue come up at all? And I'll preface it this way. Instead, as I've told our listeners and followers, to give them a little bit of a decoder ring. When you hear justices, and unfortunately, it's usually on the right wing, say things like, I don't wanna talk about the facts of this case.

Let's talk about it in the abstract. I don't care about this particular indictment. I care about legacy and future. And that's paraphrasing Alito, Kavanaugh, Gorsuch, and by extension Roberts. When you hear that, you're going to hear judicial activism having nothing to do with the case and lawmaking. This is my view. You can tell me whether you agree or not.

And lawmaking that is inconsistent with constitutional principles. Michael, it was remarkable and astonishing. Now, I should say that it was reminiscent of the argument by the court in the Trump versus Anderson case, which presented the question of whether the former president is disqualified under section three of the 14th amendment for having engaged in an insurrection or rebellion against the Constitution

of the United States. There, as you'll recall, and as your viewers and listeners will recall, to the Supreme Court barely discussed at all that issue. It was evident from the argument by the time of the end of the argument that the Supreme Court was never going to decide the issue. Not then, not ever. And of course it didn't. So also with this argument this week on another of the most profound constitutional issues possible under our Constitution of the issue itself. It would be virtually unheard of for the court in light of that argument to decide the case.

No one believes it's going to, I don't. It seemed evident from the court that it will remand the case back to the district court, federal district court, to determine in the first instance which acts of the former president were taken in his official capacity as president of the United States, which were taken in his private or personal capacity, and presumably which were taken in his capacity as a candidate for the presidency of the United States. Michael, those are quintessential issues for the Supreme Court of the United States of America.

The Supreme Court sits for the purpose of deciding those fundamental questions. And it could decide those questions today. There's not a reason in the world to remand this case to the lower courts. If it does so, there's no question whatsoever, but that the former president will not be tried before the election in November, but it's exceedingly unlikely that he will ever be tried and held accountable for the grave offenses against the United States that he committed in and around January 6, 2021. And Judge, if they do that, if the five votes or even six votes vote to send it back to Judge

Chutkin, are they doing it on purpose in order to help this former president in his election bid? Well, I'm not going to ascribe a motive to them, Michael, but I will state the fact, facts that it's completely unnecessary for them to do so. And if they were to do so, they would know that the consequence of that is that the former president would not be tried before the election. And possibly never tried. Let me play a clip from thank you. Thank you, Judge. Let me play a clip from Chief Justice Roberts. And the more I listen to the clip, the more I realize that the actual only issue on appeal is obviously framed by Roberts because you can hear him use it in the way he's debating with Mr. Dreeben, the lower court's decision. It was the only time I heard in two and a half hours that the lower court decision,

which was supposed to be the decision that was being reviewed on appeal was even mentioned, which goes to your point that they didn't seem to be concerned about the fundamental issues they should be deciding, but they came in with some preconceived notions and making, as you termed it, argument from the bench. Let's play Chief Justice Roberts in his discussion with Trevin about the tautology that he found that he was troubled by in the District Court of Appeals decision. Because the fact of the prosecution means that the former president has allegedly acted in defiance of the laws. Do you agree with that statement? Well, I think it sounds tautologically true, but I want to underscore that the obligation of a president

is to take care that the laws are faithfully executed. Well, I think it sounds tautologically true as well. And that, I think, is the clearest statement of the court's holding, which is why it concerns me. As I read it, it says simply a former president can be prosecuted because he's being prosecuted. Well, I would not suggest that that's either the proper approach in this case or certainly not the government's approach.

A prosecution does, of course, invoke federal criminal law. The allegations have to be presented to a grand jury which votes upon the indictment. Well, that's what I mean shortly after that statement in the court, that court's opinion, that's what they said. But there's no reason to worry because the prosecutor will act in good faith and there's no reason to worry because a grand jury will have returned the indictment. Now, you know how easy it is in many cases for a prosecutor to get a grand jury to bring

an indictment and reliance on the good faith of the prosecutor may not be enough in some cases, I'm not suggesting here. So if it's tautological and those are the only protections that the court of appeals below gave and that is no longer your position, you're not defending that position, why shouldn't we either send it back to the court of appeals or issue an opinion making clear that that's not the case? I just heard a chief justice of the United States Supreme Court in a hypothetical assume a lawless grand jury a lawless Department of Justice a Lawless Attorney General and by extension a lawless judge in order to make his point. It was troubling to me

What did you make of Roberts and his back-and-forth with mr. Dreeben? Well, Michael it was one of the most regrettable exchanges of the many regrettable exchanges that day. But the statement that the Chief Justice read from the DC Circuit's opinion was not tautological at all. And anyone who even understands what a tautology is And anyone who even understands what a tautology is would have understood that the statement was not tautological. What the statement said in effect, if not exactly, was that only that the the indictment alleges that the former president violated the law. That itself rendered the statement

not tautological in any sense whatsoever. Mr. Dreeben, who's one of the most gifted advocates before the Supreme Court in this generation, I think that he was probably, you know, knocked back on his heels by the tautological suggestion by the Chief Justice, and all but said that he thought it was tautological also, but it was not. Most fundamentally though, the Chief Justice did emphatically say

that that's what the Supreme Court said. And just as emphaticallyatically that is not the holding uh nor the reasoning of the DC circuit. Yeah you know you're in trouble when the chief justice is summarizing the the opinion below um wrongly and you know you're off on the wrong foot um and they're trying to do something else here. So, um, I, I read from in, in preparing for today, I read some other things that you've read and said leading into this. And I pulled a couple of clips to have you respond to them when the discussion turned to, um, pardons the power of the pardon, Kataji Brown Jackson, in a clip

that we played earlier, actually raised it first when she said in that same sequence, she said, if presidents don't face criminal prosecution or shouldn't face criminal prosecution, then what was the Ford pardon of Nixon all about? What was that about? And then we were off talking about pardons, which was picked up later on by both Kavanaugh and Gorsuch. Let's play the back to back here of these comments and let Judge Ludwig respond. So let's have Kavanaugh and then the Gorsuch back to back.

How about, I think it came up before, President Ford's pardon. Very controversial in the moment. Yes. Hugely unpopular, probably why he lost in 76. Now looked upon as one of the better decisions in presidential history, I think by most people. If he's thinking about, well, if I grant this pardon to Richard Nixon, could I be investigated myself for obstruction of justice on the theory that I'm interfering with the investigation of Richard Nixon? So this would fall into

that small core area that I mentioned to Justice Kagan and Justice Gorsuch of presidential responsibilities that Congress cannot regulate. How about President Obama's drone strikes? So the Office of Legal Counsel looked at this very carefully and determined that number one, the federal murder statute does apply to the executive branch. The president wasn't personally carrying out the strike, but the aiding and abetting laws are broad. And it determined that a public authority exception that's built into statutes

and that applied particularly to the murder statute, because it talks about unlawful killing, did not apply to the drone strike. So this is actually the way that the system should function. The Department of Justice takes criminal law very seriously. It runs it through the analysis very carefully with established principles. It documents them. It runs it through the analysis very carefully with established principles. It documents them, it explains them, and then the president can go forward in accordance

with it. And there is no risk of prosecution for that course of activity. And perhaps if he feels he has to, he'll pardon himself every four years from now on. But that, as the court pointed out, wouldn't provide the security because the legality of that is something that's never been addressed. See, I want to live in the world of Mr. Drebben. I want to live in the world where an office of White House counsel analyzes issues, even if they involve a president, to determine if there was criminality, decides whether to prosecute.

You know, I like that world. The world that scares the crap out of me and of our listeners and followers is the world that's being proposed by Kavanaugh, Gorsuch, Roberts, Alito, and I assume Thomas, although I was surprised he was on the bench for this one, but he was there, which is in using examples from Justice Sotomayor, Kagan, and Katanji Brown Jackson, a person in the office could use a military coup to stay in power and not be prosecuted, could try to assassinate a political rival and it depends on the context, according to Mr. Sauer, um, and the like, and instead contrasted with people like Gorsuch who turn the,

the actual facts of January 6th and the attack on our Capitol into a peaceful flower-presenting protest by a counterculture movement led by a peace-loving president as the example of what happened on January 6th because they don't want to get mired into the facts of the indictment. What did you make of this discussion of pardons, self pardons and the like? Well, Michael, I, I, I felt that I was in Alice's wonderland, frankly. Um, the, the, the clear suggestion by Justice Gorsuch, I believe, was that this former president who has been charged with these crimes against the United States ought not to be tried for them because he did not have fair opportunity to understand that what he had

done constituted a crime under the Constitution of the United States and therefore didn't have the opportunity to pardon himself in advance. That was the import of that suggestion by Justice Gorsuch. That led then, of course, to the digression that unfortunately, or fortunately, depending on the viewer, the court had never had the opportunity to address the question of self-pardon. As I think you know, I actually did address it for the first time publicly that I'm aware, two or three years ago when it was rumored that the former president had pardoned himself secretly. And I wrote an op-ed or essay in the Washington Post,

reasoning through the limited authority, but most importantly, the pardon clause. And I concluded that a president does not have the power to pardon himself or herself, and that indeed the framers of our constitution would have considered that obstruction of justice rather than a manifest act of justice. But in any event, you couple that pardon discussion with the other discussion

that was driven by Justice Alito to the effect that we would enter into an endless cycle of democratic peril, if you will, were the Supreme Court to hold that the former president is not immune. The reasoning of that argument was that all future presidents, all future presidents of the United States of America, Michael, would corruptly and politically prosecute their predecessors for any and all acts, whether or not criminal in nature.

The suggestion is deeply concerning for many reasons, not least of which it assumed, the argument assumed that the prosecution of the former president is politically corrupt. And it sought a rule that would prevent all future presidents from politically and corruptly prosecuting their predecessors. And talk about something that's antithetical to America, to our Constitution, and to American government, that presumption is about as antithetical as I've ever heard. You made a statement, Judge, in your social media post, and you used the phrase that stopped me in my tracks. I think I lost my breath when I read it, which is that you're afraid that if, as we've talked about for the last 30 minutes,

that if the Supreme Court and its majority of the Supreme Court, we know who won't be on that side of it, make the decisions that you think they're going to make, that it could lead to America being unsold. S-O-U-L, unsold. The unsealing of America and ripping away of the foundations and principles of our constitutional republic. What do you mean by that? What did you see that makes you feel that way? Well, it's not so much what I saw or felt, it's what I know. And as we began at the top of the hour, America's democracy and rule of law is its heart and soul, is its heart and soul. Not just its heart, but also its soul, Michael. And if a president of the United States of America cannot be held accountable under the Constitution of the United States for having

attempted to overturn an election that he lost fair and square, remain in power, and all the while preventing, for the first time in American history, the peaceful transfer of power, then that is to cut the heart and soul out of America's democracy and the rule of law. To me, that's self-evident. Judge, that I could not have put it any better, but that's why I have somebody like you on the show. So to get that type through the lens and the experience that you bring to our audience here in a unique format where you get no hold barred, justice looted, unplugged, and we can have this serious conversation

about the soul of democracy. You had an interest that we talked a little bit before, a little bit of pre-production before, and you told a great story about how you've now sort of entered the world of the Midas Mighty and our audience, which was new to you until you were so gracious and generous about joining us a couple of months ago for the first time and now have become a regular, I'll call it a contributor to the learning and the understanding of our audience. Something happened to you recently

that you thought was interesting, right? It did, Michael, but first let me just say that, for the reasons you stated, it's really an honor for me to appear with you on the Midas Touch Network. But yes, I couldn't wait to tell you the story. I was taking an Uber from a hotel elsewhere one Saturday morning. And the Uber driver picked me up in front of the hotel. And, and, you know, he looked at me for a while in the

rear view mirror before going and I said, well, is anything wrong? I'm going to this address. And he said, no, no, nothing's wrong, but I know you. And I said, well, you know, I don't know where you'd know me from. And he said, well, I don't either, but I know you. And I thanked him, as I always do, and I'm honored when people recognize me from any place and touched that they do.

So he drove off and a few miles down the road, he said, you're Judge Ludwig, aren't you? And I said, yes, I am. And he said, he thanked me for what all he thought I was doing for the country in speaking out on these issues. And then he said, I watch you on Midas Touch. I watch you every single time that you appear with Michael Pawpaw. He said, I go home every night, seven days a week, and I watch and listen to Midas Touch and Michael Pawpaw's program. I never miss a word. And Michael, he said to me, the only hope that I have for America is in the Midas Touch

network. America is in the Midas Touch Network. And I wouldn't say that if it weren't true. And I said, Well, thank you, sir. Thank you so much. Yes, I, I, I'm honored to appear on the Midas Touch Network and with Michael in particular. And I agree that they're performing a great service for the country in airing the programs that they air. And we had a 40-minute drive together that day, and we talked about all of life and in particular the precarious position in which America finds itself today.

He asked me, where I do find hope in the American people. And he dropped me off wherever I was going and we've remained in touch ever since, Michael. Judge, I'm almost, I'm about to shed a tear. Honestly, just listening to that. I've had a couple of interactions, not quite at to shed a tear. Honestly, just listening to that, I've had a couple of interactions, not quite at that level with people, and I don't want to step on that story.

That was such a heartwarming story. It's the reason we do it, and I really do appreciate, and I'm honored and the pleasure to have access to you, however, be able to bring you on with our audience so that you meet the people that it matters. You and I and others are troubled about what we see going on right now, but we have to talk about it. We have to have somebody with your gravitas and your background and strength of character to talk

about it with. So we have, I used to say, I hope I get you back for another show, but I know now that you'll make time for the audience, the Midas Touch and the Legal AFers. And we really do appreciate you, Judge. Michael, J. Michael Ludig. Anytime, Michael. It's my pleasure. Great.

Thank you very much. We've reached the end of our interview with J. Michael Ludig. This is Michael Popock, Legal AF reporting. Hear, hear, Legal AF reporting.