Tangle - SCOTUS grants Trump partial immunity.

Starting point is 00:00:00 Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is Chinatown is streaming November 19th, only on Disney+. yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at flucellvax.ca.

Starting point is 00:01:00 From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle podcast, the place we get views from across the political spectrum, some independent thinking, and a little bit of my take. I'm your host, Isaac Saul, and on today's episode, we're going to be talking about the Trump immunity ruling from the Supreme Court. I'm live on the mic here in Lisbon, Portugal, actually overseas right now, and decided that this was kind of too big of a story to sit out. So I'm hopping on. John and I are going to split up the podcast today as usual, but it felt like this was, deserves some necessary attention, I think, in my opinion. And you'll see in my take that I have some kind of strong feelings about how things have played out. So with that, I'm going to pass it over to John, who's going to enter the pod, and I'll be back for my take.

Starting point is 00:02:13 Thanks, Isaac, and welcome, everybody. Here are your quick hits for today. First up, Hurricane Beryl strengthened to a Category 5 storm on Monday as it made landfall in the Caribbean. The storm is the earliest Category 5 storm on Monday as it made landfall in the Caribbean. The storm is the earliest Category 5 storm observed in the Atlantic Basin on record. Number two, the Supreme Court ruled 6-3 to allow a suit over a 2011 rule on debit card fees that banks impose on merchants. The decision opens the door for additional lawsuits challenging other federal regulations. Number three, the House Judiciary Committee filed a lawsuit against Attorney General Merrick Garland to obtain the audio tapes from special prosecutor Robert Herr's interview with President Joe Biden about his handling of classified

Starting point is 00:02:54 documents. Number four, Steve Bannon, former White House strategist for President Donald Trump, reported to prison on Monday to serve a four-month sentence for defying a congressional subpoena from the January 6th committee. And number five, lawyers for former President Trump filed a letter with Justice Juan Merchan, who oversaw the hush money case in New York, asking that Trump's conviction be thrown out in light of the Supreme Court's finding that he has immunity for certain acts while in office. The race for president and the power of the presidency colliding in one Supreme Court decision. The court ruled today that a president has at least some immunity from prosecution. Court ruled today that a president has at least some immunity from prosecution. The landmark ruling involves the federal election interference case against former President Donald Trump,

Starting point is 00:03:53 brought by special prosecutor Jack Smith. Tonight, a monumental win at the Supreme Court for former President Trump. The conservative majority finding the presumptive GOP nominee must receive sweeping immunity for any official acts taken during his presidency. On Monday, the Supreme Court ruled 6-3 that former President Donald shielded from criminal charges for actions deemed to be within their constitutional authority, though it also clarified that presidents do not have immunity for unofficial acts. The ruling, which fell along ideological lines, left open the possibility that special counsel Jack Smith's case against Trump for allegedly conspiring to overturn the results of the 2020 election can continue. Lower courts will now decide whether Trump's conduct in that case constituted official or

Starting point is 00:05:10 unofficial acts, but the decision makes it unlikely that Smith's case concludes before the presidential election. As a reminder, in 2023, Smith indicted Trump on four felony counts for his actions leading up to and during the January 6th Capitol riots. The trial was initially scheduled for March 4th, 2024, but it was delayed on Trump's appeal to be declared immune from prosecution for any act taken as precedent. U.S. District Judge Tanya Chutkin rejected Trump's immunity claim, and Smith subsequently asked the United States Supreme Court to rule on the question after Trump appealed to the U.S. Court of Appeals for the District of Columbia Circuit. The Supreme Court declined Smith's request but later agreed to take the case after the appeals court similarly rejected Trump's claim. You can read our previous coverage of this case in links in today's episode description.

Starting point is 00:06:00 Rating for the majority, Chief Justice John Roberts outlined three overarching scenarios in which presidential immunity does or does not apply. First, he found that presidents have absolute immunity for acts related to the powers explicitly granted to them by the Constitution. Second, he held that absolute immunity extends to acts within the outer perimeter of presidents' official responsibility, and a president cannot be charged unless the government can show that applying that a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the executive branch. Third, Roberts wrote that there is no immunity for a president's unofficial acts. Roberts noted that no court had yet established a test for official or

Starting point is 00:06:41 unofficial acts, but he offered guidance on the question, reasoning that a president's official responsibilities cover conduct that is not manifestly or palpably beyond his authority. He added that in making the determination, courts cannot consider the president's motives or designate an act as unofficial because it allegedly violates the law. Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissented. Sotomayor wrote that the decision reshapes the institution of the presidency, calling the ruling an atextual, ahistorical, and unjustifiable immunity that puts the president above the law. The three justices also argued that the majority ignored settled understandings of the Constitution in favor of an expansive vision of presidential immunity that was never recognized by the founders, any sitting president, the executive branch, or even President Trump's lawyers. On Monday, Trump called the court's decision a big win

Starting point is 00:07:35 for the Constitution and democracy, while President Joe Biden's campaign said the court just handed Donald Trump the keys to a dictatorship. Today, we're going to share what the right and left are saying about this decision, and then Isaac's take. We'll be right back after this quick commercial break. Hey everyone, do you know there's another podcast that is trying to help you face this election year without losing heart? It's called A Braver Way, and it's back for a second season with its first episode of the season launching today. Today's episode focuses on the nation's first fierce partisan political rivals, Thomas Jefferson and Alexander Hamilton. Historian

Starting point is 00:08:24 Dr. Lindsay Cheverinsky explains the lessons we can learn from the famous long-winded hothead Thank you. taking the toxicity out of our politics, not by watering down their convictions, but by letting them clash and come into conversation for the good of our American experiment. How do they do it? How can you do it? Tune in to find out. Subscribe wherever you get your podcasts or learn more at braverangels.org slash a braver way. That's braverangels.org slash a braver way. That's braverangels.org slash a braver way. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history,

Starting point is 00:09:31 and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season?

Starting point is 00:09:46 Talk to your pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at FluCellVax.ca.

Starting point is 00:10:14 First up, let's start with what the right is saying. The right is supportive of the ruling, arguing strong immunity protections are needed for presidents to do their job effectively. Many acknowledge that the decision helps Trump, but add that it will also benefit future presidents. Others say the majority's reasoning is not supported by the Constitution. The Wall Street Journal editorial board wrote, the Supreme Court protects the presidency. Partisans on the left and the right are reacting to Monday's Supreme Court decision on presidential immunity based on how it affects the fate of

Starting point is 00:10:44 Donald Trump. That's a blinkered view that ignores the long-running implications of the American Republic. The 6-3 court majority rightly focuses on the institution of the presidency and the ability of all presidents, not merely the last one, to act in the national interest free from prosecution for official acts, the board said. Chief Justice Roberts offers a nuanced ruling that is far from a total victory for Mr. Trump. The court properly reads the Constitution to offer absolute immunity for actions within the core plenary powers of the executive. Democrats on Monday denounced the court for favoring Mr. Trump and complicating Mr. Smith's prosecution, but the court is doing its

Starting point is 00:11:21 job of protecting the constitutional order. If they'd take a breath, Democrats would notice that the justices made it more difficult for Mr. Trump to prosecute Mr. Biden. The immunity ruling underscores the mistakes Democrats have made in using lawfare to disqualify a presidential candidate. They should have put more trust in the voters. In Newsweek, Mark R. Weaver called the decision right for Trump and for the ages. It's well settled in law that those in the judicial and legislative branches have significant immunity from lawsuits and prosecutions based on their official acts. In the case of criminal prosecutions of current or former government officials, some form of immunity is necessary to shield our leaders from political interference by other government actors with partisan or

Starting point is 00:12:04 devious motives, Weaver wrote. This week's decision would have been met with a legal well-duh had it been made prior to our entire political discourse revolving around ardent love or desperate hatred of a single political player. For all of the doom and gloom in the dissent, the Supreme Court merely stated the obvious and sent the case back to the district court, instructing it to weigh the facts and evidence to determine if Trump's acts in this case were official or unofficial in his role as president. If that means he will avoid prosecution in the mistake-ridden case against him in the District of Columbia, that's just the way the separation of powers ball bounces, Weaver said. This case won't end the lawfare effort to defeat Trump in forms other

Starting point is 00:12:45 than national election, but it will, as Justice Neil Gorsuch predicted, speak to the ages. In the Washington Examiner, Quinn Hillier said the Supreme Court grants Trump a malignant degree of immunity. At first glance, the Supreme Court's Monday decision on presidential immunity looked like an unwise overstatement of otherwise valid principles. At a closer glance, it looks almost abominable, Hillier wrote. If there is a future President Kamala Harris, the decision in Trump v. United States would make her frighteningly unpunishable in criminal court, even for what otherwise would be massive illegalities. Fans of former President Donald Trump, who are now celebrating the decision, could find themselves obliterated on their own petards.

Starting point is 00:13:27 While Roberts pretends that this narrowing of immunity from absolute to merely presumptive is an important distinction, in practice, it is almost impossible to imagine any official powers that possess no danger even to the outer limits of the president's authority, Hillier said. authority, Hillier said. Robert's assertions can be found nowhere in the text of the Constitution itself, and unlike the few other non-textual applications of the Constitution that are, nonetheless, quite obviously implicit in the Constitution's very structure, such as the separation of powers, the assertion of presidential immunity this broad isn't obviously implicit, but implicit only through a few degrees of created extrapolation. Alright, that's it for what the right is saying, which brings us to what the left is saying. The left is outraged by the ruling, suggesting it creates a daunting bar prosecuting presidential misdeeds. Some say the court just destroyed one of the fundamental checks on executive power. Others say there are still ways to publicly litigate

Starting point is 00:14:29 the core allegations of Trump's case. The Washington Post editorial board said, the Trump immunity decision isn't the end of democracy, but it is bad. The implications are much bigger than Mr. Trump. More important and more alarming are the potential long-term consequences that could persist well after Mr. Trump is gone, the board wrote. The decision prohibits prosecutors from using any evidence related to official acts to prove charges related to unofficial acts. That's only one example of how troublingly broad the Supreme Court's new presidential immunity standards are.

Starting point is 00:15:02 By declaring motive irrelevant in assessing presidential liability for a crime, the majority invited questions about whether all kinds of abominable violations are now fair game. Ex-presidents can still be conceivably punished for those official acts that don't relate to a president's core responsibilities. If prosecutors can convincingly argue that punishment won't hinder a vigorous executive branch, courts could also continue to order the executive branch, courts could also continue to order the executive branch to halt improper activity, as they do regularly, regardless of whether the president is locked up after leaving office for misconduct, the board said. So it is up to the courts, including the highest in the land, to ensure the nightmare scenarios

Starting point is 00:15:40 the critics have dreamed up do not manifest. The trouble is, this week's opinion invites presidents to push the boundaries. In Slate, Mark Joseph Stern argued, the Supreme Court just made the president a king. The Supreme Court's conservative supermajority fundamentally altered American democracy on Monday, awarding the president a sweeping and novel immunity when he weaponizes the power of his office for corrupt, violent, or treasonous purposes. The nearly insurmountable shield against prosecution for crimes committed while in office upends the structure of the federal government, elevating the presidency to a king-like status high above the other branches. The immediate impact of the court's

Starting point is 00:16:19 sweeping decision will be devastating enough, allowing Donald Trump to evade accountability for the most destructive and criminal efforts he took to overturn the 2020 election. But the long-term impact is even more harrowing. The fundamental problem with Trump's legal theory is that it has absolutely no basis in the text of the Constitution, history, or tradition. The framers knew how to grant immunity to officeholders. They did it for members of Congress, yet expressly declined to immunize the president. So Chief Justice John Roberts, writing for the majority, located this non-existent rule in, for lack of a better word, a vibe ostensibly expressed by bits and bobs of the Constitution, Stern said.

Starting point is 00:16:59 All future presidents will enter office with the knowledge that they are protected from prosecution for even the most appalling and dangerous abuses of power, so long as they insist they are seeking to carry out their duties as they understood them. In the New York Times, Andrew Weissman wrote about how to get voters the facts they need without a Trump January 6th trial. All is not lost. A trial might not happen, but a legal proceeding that will give voters some of what they want and need could still take place, Weissman said. Judge Tanya Chutkin of the U.S. District Court in Washington is now authorized to hold, in short order, an evidentiary hearing, replete with important witness testimony. That hearing would not replace a full trial and verdict, but at this point is the best and last means to make public crucial evidence for voters to hear before election

Starting point is 00:17:45 day. Judge Chukin can hold a prompt hearing on the key issues left open by the ruling. What allegations in the indictment are core official functions entitled to absolute immunity and which are not? A model for such a hearing can be found in the Georgia state and federal courts that wrestled with an analogous factual issue, namely whether Mr. Trump's chief of staff, Mark Meadows, could move his case to a federal court because he was acting in an official executive branch capacity when he helped arrange a call with Georgia election officials to discuss the outcome of the presidential vote, Weissman wrote. A factual hearing by Judge Chutkin would permit the airing in an adversarial proceeding with full due process for Mr. Trump, evidence

Starting point is 00:18:24 that goes to the heart of the most profound indictment in the nation's history. All right, let's send it over to Isaac for his take. All right, that is it for what the left and the right are saying, which brings us to my take. All right, I'm going to be honest. I think this is probably the worst decision that has come out of this Supreme Court, both in legal clarity and the practical impact. When the U.S. Court of Appeals for the District of Columbia Circuit eviscerated Trump's argument, I wrote that I thought they got it right. Then I said I was shocked in January by how many justices on the Supreme Court actually seemed open to the idea of absolute immunity for

Starting point is 00:19:11 presidents, and I left oral arguments feeling like this outcome, the court granting Trump and future presidents some kind of partial immunity, was this case's most likely outcome. I was rather appalled by that prospect, but I'm not surprised at all by the result. With only surface-level scrutiny, the court's decision raises all sorts of obvious problems. Before this ruling, a sitting president was already granted extraordinary power. Indeed, conservatives have long derided how much more power the executive branch has accumulated over the last century, and one of the checks on that authority has been the threat of criminal prosecution. Deciding what presidential actions are prosecutable by separating them into official and unofficial acts seems like a nearly impossible rule to parse.

Starting point is 00:19:56 As Chief Justice John Roberts himself proposed in oral arguments, consider a scenario where a president takes a bribe to appoint an ambassador. The quote-unquote official act of appointing the ambassador is part of the crime, and any jury should be able to hear about that act in the context of the crime. But are we really saying that a president can only be charged for taking the money? Or as Justice Sotomayor brought up in her dissent, is a president immune from using SEAL Team 6 to assassinate a political opponent because commanding the armed forces is in their official duties. Drawing these lines is unnecessary and overcomplicated, creating a whole series of cascading issues. Crimes don't become legal just

Starting point is 00:20:37 because a president used their office to commit them. Richard Nixon has been pilloried in history for saying if the president does it, it's not a crime. Now his administration's White House counsel says this ruling would have protected him during Watergate. To me, just as important as the legal ramifications is what this court is signifying in its response to Trump's actions. Some may argue that his pressuring of election officials to find votes or his threats to fire people in the Justice Department weren't criminal, or that he didn't deserve to be prosecuted, or that prosecutors like Jack Smith and Fannie Willis concocted complicated charges to try to get him behind bars or hurt him politically. These are all fair arguments, and much of what Trump did post-election is likely not criminal.

Starting point is 00:21:20 But no matter how you feel about Trump, I don't think anyone is really arguing that what he did in the wake of losing the 2020 election was good, or that he needed more latitude to act. Yet the court's response now effectively grants presidents that latitude to use their already extraordinary executive power without any repercussions. Irrespective of Trump, this ruling offends my sensibilities about what our country is supposed to stand for. Indeed, I think the opposite is likely more true. Those who support Trump or hate the people prosecuting him are driven to approve this ruling because they don't want to see him punished or see those people succeed. I only ask the many Trump supporters who support this decision to pause and consider its implications for the current presidency.

Starting point is 00:22:04 support this decision to pause and consider its implications for the current presidency. At this very moment, Biden's opponents and Republicans in Congress are accusing him of having used his power as vice president to enrich himself and his family through various foreign business deals. Presume for a moment that everything people have said about the quote-unquote Biden crime family is true. This ruling makes it easy for him to describe those alleged acts as official acts to defend a family member benefiting from some kind of arrangement with a foreign entity. Do you want President Biden to be unaccountable outside impeachment or an election for almost any action he takes in the next five months as president?

Starting point is 00:22:37 It's nonsense. The legal arguments aren't much better. One of the most frustrating parts of this ruling is the majority's central reasoning. Roberts expressed concern that allowing criminal charges against the former president could impact their decision-making, writing, quote, a president inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. Somehow, this is framed as a bad thing. Actually, yes, I think presidents should consider whether what they are doing while in office is so illegal

Starting point is 00:23:10 they could go to jail for it when they are no longer president. Granted, this approach may open any future one-term president running for re-election to attacks from an opposition party, but that hypothetical threat pales in comparison to the reality this ruling has left us with. hypothetical threat pales in comparison to the reality this ruling has left us with. What does the court tell us constitutes official acts? Very little. Roberts says that delineating between the two is admittedly difficult, but official responsibilities cover actions so long as they are not manifestly or palpably beyond his authority. Got that? If what you do isn't manifestly or palpably beyond your authority as president, you are immune from prosecution. Clear as mud. In some ways, the court just granted Trump, Biden, and all future presidents broader immunity than the kind Trump was even asking for. Remember,

Starting point is 00:23:56 Trump's team was arguing in part that he couldn't face further repercussions for any of his actions because he hadn't been impeached. But the Supreme Court's decision didn't make any exception for impeachment. That means a president could be impeached for criminal behavior, kicked out of office, and still not face any criminal repercussions as a citizen for actions they took while in office. And to be clear, I don't just blame the conservative justices for this outcome. They're at the top of my blame pyramid, but special counsel Jack Smith deserves a modicum of scorn too. Critics of Smith, like the Washington Post's Jason Willick, predicted this very outcome, suggesting he could have both gotten his case to trial before the election and to survive Supreme Court scrutiny if he focused it only on Trump's acts as a candidate seeking

Starting point is 00:24:40 re-election. Now Smith's prosecution of both Trump and January 6th rioters has backfired spectacularly. I don't have much criticism for Smith's legal arguments, but if a prosecutor isn't landing cases that it seems like he should, there's good reason to at least question his tactics. I'm often split in how I feel about a Supreme Court's decision's outcome and its arguments, but not today. I think the ruling is a convoluted, nonsensical, and unworkable legal precedent that will damage the country. For a court that I've spent a lot of time defending, this is a disappointing and genuinely frustrating way to end their term. We'll be right back after this quick break. We'll be right back after this quick break.

Starting point is 00:25:28 Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported

Starting point is 00:25:54 across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season? Talk to your pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at Helvax.ca. All right, that is it for my take. We are skipping today's reader question because the pod ran a little long. So I'm going to send it back to John for the rest of the show,

Starting point is 00:26:39 and I'll see you guys tomorrow. Have a good one. Thanks, Isaac. Here's your Under the radar story for today folks the u.s department of justice has given boeing till the end of the week to decide whether to plead guilty to a criminal fraud charge stemming from the fatal 737 max plane crashes in 2018 and 2019 a guilty plea would require boeing to pay an additional criminal fine of $243.6 million. On top of the $243.6 million it already paid in a 2021 deferred prosecution agreement, though this fine is still short of the roughly $25 billion requested by the families of the victims. In May, the Justice Department determined Boeing had violated that agreement

Starting point is 00:27:22 by failing to establish a compliance program to prevent fraud. This week's fraud charge adds to the aircraft maker's troubles as it continues to grapple with the fallout from one of its fuselage panels blowing off mid-flight in January and a subsequent production slowdown. Bloomberg has this story and there's a link in today's episode description. description. All right, next up is our numbers section. The number of days since former President Donald Trump was indicted in the 2020 election interference case is 336. The number of days since Trump's attorneys filed their original motion to dismiss the charges against him based on presidential immunity is 271. The number of days until the election is 125. The percentage of Americans who think Trump should not have immunity

Starting point is 00:28:10 for actions taken while president is 62%, according to a CBS News YouGov poll in June. The percentage of Republicans who think Trump should not have immunity for actions taken while president is 33%. The percentage of Democrats who think Trump should not have immunity for actions taken while president is 33%. The percentage of Democrats who think Trump should not have immunity for actions taken while president is 90%. The percentage of Americans who think presidents generally should not have immunity for actions taken while in office is 70%. The percentage of Republicans who think presidents should not have immunity for actions taken while in office is 55%. And the percentage of Democrats who think presidents should not have immunity for actions

Starting point is 00:28:45 taken while in office is 84%. All right, and last but not least, our Have a Nice Day story. 90-year-old U.S. Air Force veteran Dylan McCormick worked at a grocery store in Louisiana, gathering shopping carts in the parking lot in the Louisiana heat. Karen Swenson, a woman who had previously worked as a New Orleans news anchor, noticed his efforts to support himself and created a GoFundMe to allow him to retire. Mr. McCormick was born in 1933, making him a part of the silent generation.

Starting point is 00:29:16 Please, America, let us be his voice. We can do this, Swenson said when seeking donations for his GoFundMe. The campaign received over $200,000 within a day, enough to allow McCormick to retire. Good News Network has this story, and there's a link in today's episode description. All right, everybody, that is it for today's episode.

Starting point is 00:29:37 As always, if you'd like to support our work, please head over to readtangle.com and sign up for a membership. We'll be right back here tomorrow. For Isaac and the rest of the crew, this is John Law signing off. Have a great day, y'all. Peace. Our podcast is written by me, Isaac Saul, and edited and engineered by John Law. The script is edited by our managing editor, Ari Weitzman, Will Kabak, Bailey Saul, and Sean Brady. The logo for our podcast was designed by Magdalena Bokova, who is also our social media manager, Thank you. Bye.

Tangle - SCOTUS grants Trump partial immunity.

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