The Daily Signal - 101 of Trump’s Presidential Immunity Case Before Supreme Court

Episode Date: April 26, 2024

The nine Supreme Court justices have a major question before them. Is a current or former president immune from prosecution?  Former President Donald Trump is facing prosecution for alleged efforts to overturn the results of the 2020 election. Trump argues that his actions as president are protected from prosecution under presidential immunity.  Trump lawyer John Sauer argued Thursday before the Supreme Court that unless a president is first impeached and convicted by the Senate, he is immune from prosecution, explains John Malcolm, senior legal fellow and vice president for the Institute for Constitutional Government at The Heritage Foundation. (Heritage founded The Daily Signal in 2014.) Now, Malcolm says, the justices have to answer three questions in order to make a decision in the Trump case:  One, is there a blanket immunity for a president's official actions because he was not impeached and convicted by the Senate? Two, what is a private action and what is an official action? And three, if the court rejects John Sauer’s, absolute immunity argument, will there be any other kind of immunity that might attach to an official action? Malcolm joins this episode of “The Daily Signal Podcast” to discuss. Enjoy the show! Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is the Daily Signal podcast for Friday, April 26th. I'm Virginia Allen. The nine justices have a major question before them. Is a current or former president immune from prosecution? Trump is facing prosecution for his alleged efforts to overturn the 2020 election. But he and his lawyers argue that his actions are protected and that he can't be prosecuted because there is immunity for official acts done by a president. Well, now the Supreme Court will decide if a president is protected from prosecution for those official acts or not. Heritage Foundation Senior Legal Fellow and the Vice President for the Institute for Constitutional Government at Heritage, John Malcolm, listened to the arguments before the Supreme Court yesterday, and he's joining us on the podcast today to discuss the biggest moments and takeaways from what he heard from the justices, their questions to the lawyers, and the timeline ahead. Stay tuned for our conversation after this. Hi, I'm John Carlo Canaparo. And I'm Zach Smith. And we host SCOTUS 101.

It's a podcast where you'll get a breakdown of top cases in the highest court in the land. Hear from some of the greatest legal minds. And, of course, get a healthy dose of Supreme Court trivia. Want to listen? Find us wherever you get your podcasts or just head to heritage.org slash podcasts. Case is submitted. Well, it is my pleasure to welcome to the show today, Heritage Foundation Senior Legal Fellow and Vice President of the Institute for Constitutional Government here at the Heritage Foundation.

John Malcolm, John, thanks for being with us today. Oh, it's my pleasure. Always good to be with you, Virginia. Let's do a brief big picture. How did we get here, and can you just give us a real quick background on this case? Hard having a brief background on all of this. 30 seconds go. Sure.

So former president, Donald Trump, is. Under indictment, four separate indictments, two of them federal, two of them state. One of them he is sitting in a New York courtroom right now, the so-called hush money trial. That's going on. Then he's also been indicted, along with many other people down in Georgia, related to January 6th, the events following the election. Then there are two federal indictments pending against him. One involving classified documents that's pending down in Florida, and the other involves the aftermath of the election, the events of January the 6th, and President Trump's alleged involvement in criminal activity connected to those.

And this case that was argued before the Supreme Court pertained specifically to that one, although I think that a ruling by the Supreme Court will have equal applicability to the Georgia indictment since a lot of the allegations overlap between the D.C. federal case and the Georgia state case. So Donald Trump's attorneys are arguing that with respect to much of the alleged conduct in that indictment that he should be considered to be immune from prosecution. His lawyer, John Sauer, argued today before the Supreme Court, I thought, did a very, very effective job, as, by the way, did the government's lawyer, Michael Dreuben, who spent many, many years in the Solicitor General. office, he's now working in this case for special counsel, Jack Smith. And I think that they really narrowed the scope of the arguments. So what John Sauer's argument essentially is... This is Trump's lawyer. This is Trump's lawyer, is that former President Trump should be immune from criminal

prosecution for any official acts that he took because... while he was impeached by the House of Representatives, he was not convicted by the Senate. His argument is that based on the vesting clause of the Constitution, which vests all executive power and the president, separation of powers principles, and the impeachment judgment clause, which says that if a president is impeached and convicted, he can then be subject to prosecution. His argument essentially is because that clause says you have to be impeached, convicted, and can then be subject to criminal prosecution, that unless you are impeached and convicted, you cannot be subject to criminal prosecution. The government takes a different view than that. What I thought was interesting is I thought that he was going to go in and argue that the entire indictment should be.

dismissed and that all of the president's actions that he took that he took were official actions. He did not do that. He said there are official actions and there are private actions and when he was asked I think by Justice Barrett, you know, so for instance when the president hired a private lawyer and according to the allegation, working with that lawyer filed false documents in court. Was that an official action or a private action? He said, that would be a private action. So whatever is determined to be a private action

will remain part of this indictment regardless of what the Supreme Court does. How do you determine that, though? Well, that took up a lot of the time of the justices is trying to determine what is a private action and what is a public action. And there was clearly some disagreement. So for instance, John Sauer, he was asked, well, what about contacting state legislators and asking them to hold a special session to look into the elections?

John Sauer said that would be an official action. President's contact state legislators all the time. Michael Drebman said, no, that would be a private action because here he was as a candidate trying to seek re-election, he was not doing anything that would constitute the official actions of a president of the United States. So there are going to be a number of issues that the court's going to have to grapple with. One, is there a blanket immunity for a president's official actions because he was not impeached and convicted by the Senate?

Two, what is a private action and what is an official action? And three, if the court rejects John Sowers' absolute immunity argument, will there be any other kind of immunity that might attach to an official action? So what Michael Dreuben on behalf of Special Counsel Smith argued, said, well, even if there is an official act taken, if it is done to accomplish any illegal purpose or, you know, know, a wrongful or as a bad motivation, he can be indicted for that. And he talked about two examples. He said, well, normally, presidents talk to people within the Department of Justice. So here, there's no question that Donald Trump had conversations with the acting attorney general, Jeff Rosen.

He discussed getting rid of Rosen and replacing him with Jeff Clark, who I think at the time was the head of the civil division. Normally, presidents talk to people within the Department of Justice all the time. That, Dreyben said, is an official act. But here, Drebans said, those conversations were taking place for an improper purpose. The purpose was to get the Department of Justice to send out a false letter claiming that there were irregularities in the election that could change the result and asking state legislators to consider overturning those results. that because it was being done for an improper purpose, even though it was an official action, he could be criminally charged with that. The other example they gave was his conversations with Mike Pence before certifying the vote on January the 6th.

The presidents talk to vice presidents all the time. Here, so the concession was talking to the vice president is an official action. But the allegation is that official action was being done for an improper purpose. It was to inject the president into the process of counting the electoral college votes, something for which the president doesn't have a role. And he was asking Mike Pence to do something totally improper. And therefore, even though it was an official act talking to a vice president, because it was done to achieve an unlawful objective and done with a knowledge that he was doing something wrong, he can be criminally prosecuted for that. So the court is going to have to decide. Is the president immune because these were official acts?

And if he is not immune, then is there, how do you determine the scope of any immunity? Is it important whether he had a good motive or a bad motive? How are you going to parse these things out? And of course, this is really important not only to Donald Trump, but the court is correctly so, thinking, future. You know, this is going to apply to every future president that we have. So you had all kinds of hypotheticals flying all over the place. You know, on the one hand, you know, I had a lane of cake and saying, well, what happens if a president is about to, you know, he's lost and he's about to be thrown out of office because he's lost his reelection.

And he orders the army to have a coup. You know, would that be something that it's an official act calling out the army? Would that be indictable or not? And on the other side, you had Sauer's lawyer sitting there and saying, well, you know, Barack Obama ordered a drone strike that ended up killing American civilians. Could he be indicted for murder? Or Joe Biden, not enforcing our nation's immigration laws along the southern border. Could he be indicted for that? So you had the justice that were testing the limits of both of these theories and how it might apply to a future presidency.

So because this is so sticky and could open up a can of worms in many ways, do you expect that the ruling will be incredibly narrow in order to avoid some of that stickiness? Well, I do think it's likely that the court is not going to adopt the broad immunity argument that John Sauer was putting forward. They cited examples like Richard Nixon and saying, well, you know, Richard Nixon resigned. he was never impeached and convicted, yet people thought that he could be subject to criminal prosecution, which is why Gerald Ford issued him a pardon. They talked about special counsel. Special counsels have always thought that they had the power to indict a former president. They didn't, but that they had that power.

No presidents argued that they were immune. So I think at the end of the day they're going to reject that argument, but I think they're going to have to be very, very careful about how they define. fine private acts versus official acts. And I think they're going to give somewhat of a broad swath if something falls within the realm of being an official act to not trying to second guess what was going on in the mind of a president at the time he took that official act. It's very easy to allege a bad motive. They might do something for a clearly improper purpose. I'm not sure what standard they will come up with.

But I think that's what they're going to try to do. Okay. And then based on how the Supreme Court rules, is there a chance that this will go back down to lower courts like the D.C. Circuit Court that has weighed in previously? I think it'll certainly go back to a lower court, probably first to Judge Chutkin in the district court, particularly when you had John Sauerke's conceding that at least some of the indictments allegations involved what he called private conduct. You're going to have to have the judge determining what is private conduct and what is official conduct. Even if the Supreme Court adopts the broad argument that John Sauer is making, in which case he would, all of the official acts would be off the table, you still have to decide what was an official act and what was a private act. So this case is certainly going to go back to Judge Chutkin in the first instance to make these determinations. And of course, the scope of her ruling will depend on what the Supreme Court says. And everyone is looking at the clock, looking at the calendar, and thinking about the election in November. And will this be decided before then or not?

share take? How quickly are we going to see movement and ruling? I think it'll be very, very tough to get this case tried before the election. So they just had the argument. If they operate at lightning speed, the Supreme Court, they would issue the opinion in a couple of weeks. I think it's going to take longer than that. But let's say they did. It's going to go back. You're going to have to have these evidentiary hearings. I think that Trump's attorneys are now going to raise the issue about whether Jack Smith was properly appointed under the Constitution and can even proceed with this case. So that issue has been raised in the Florida case. It has not been raised yet in the District of Columbia. There's actually adverse precedent for the former president in the D.C. Circuit. But nonetheless,

if you want to preserve the issue, you've got to raise it. Justice Thomas asked John Sauer about that today, and John Sauer said, you know, yeah, General Ed Meese has, among others, filed a brief saying that he does not think that an amicus brief, saying that Jack Smith was properly appointed and shouldn't be allowed to prosecute this case. Sauer said, I agree with that argument, but we have not raised that yet in the D.C. district court, and therefore it is not before the court, the Supreme Court in this case. So it's not going to be anytime soon, it sounds like, before all this is buttoned up. We got a long way to go. Look, I think we're going to finish the New York trial. I don't know what's going to happen with that. It's possible that the classified documents case will go to trial.

But I have a very – and I think it's impossible. I think it's no way the Georgia case is going to go before the election. It's hard to see these cases going before the election. But, you know, Judge Shetkin, I'm sure on remand is going to try to set a – an aggressive schedule. John, I do want to get your thoughts briefly on the Manhattan case, the Trump's criminal case there. It's in full swing.

We had opening statements on Monday. What's your take so far on what you've seen in the courtroom, or heard, rather? Yeah. Well, I have a lot of problems with this particular case. I think that it is, incorrectly so perceived as being the most overtly political of the prosecution. So here you have a case in which, Calvin Bragg, the District Attorney in Manhattan, has taken allegedly false entries on the books of the Trump organization, which is a misdemeanor, and has alleged that because those false entries were done to conceal the existence of another crime, that that all of a sudden makes them a felony. Now, first of all, for misdemeanors, the statute of limitations is two years.

The statute of limitations ran a long, long time ago. Alvin Bragg did not until very recently disclose what the other crime was that these false business entries were designed to cover up. He's now said what that crime is, and I'm very troubled by his answer. He alleges that those false business entries were designed to cover up another penal code section, which is to engage in a conspiracy through unlawful means to promote an election. That is also a misdemeanor. So in other words, he is saying that these false business entries, a misdemeanor, were designed to cover up another crime, also a misdemeanor.

And presto change, oh, we now have 34 felony counts. Now, the felony counts are also highly questionable. In addition to the fact that false business entries usually resulted most in a civil fine or at worst a misdemeanor. I mean, here you had invoices from Michael Cohen, the former president's alleged fixer and certainly his attorney at the time, for legal services rendered. And they were entered on the books as legal services entered. And Alvin Bragg's theory is that, no, no, no, these weren't for legal services entry. these were in order to reimburse Cohen for payoffs to Karen McDougall, the former Playboy Playmate, and Stephanie Clifford, who goes by the name Stormy Daniels, was a pornographic actress.

And all of this was designed to help promote Donald Trump's campaign. Well, you know, Donald Trump says, look, rich men get extorted all the time by people and businesses get extorted all the time by people. They settle these things for nuisance value, or they settle them in order to avoid embarrassment to their family. And we enter in, you know, such cases typically include non-disclosure agreements so that no one can talk about the terms of the settlement. And that's what was going on here. And I don't see how you can really disprove that. Although, by the way, even if this was done somehow to, you know, benefit his campaign, the money came from him. He is a wealthy man.

wealthy individuals can contribute as much money as they want to to their own campaigns. At worse, then, that would be a reporting violation in violation of federal campaign finance list. The Federal Election Commission looked into this. They decided they didn't bring any charges against Donald Trump. The Department of Justice looked into this. They didn't bring any charges against Donald Trump. But Alvin Bragg thinks that he knows better and is going to raise these charges.

The only similar case that I can think of where the facts were actually worse was when John Edwards, North Carolina Senator, at the time he was either running for president or he was already John Kerry's running mate. He had a videographer on the campaign trail, a woman named Riley Hunter, and he was having an affair with Riley Hunter, and she ended up, in fact, bearing his child. A wealthy campaign supporter of John Edwards, Bunny Mellon, of the Mellon Bank fame, gave a large sum of money to Riley Hunter to make her, you know, essentially go away and not tell her story. He then got indicted by the Department of Justice for campaign finance violations. The allegations were these were undisclosed campaign finance contributions by Bunny Mellon. That case was brought by none other than Jack Smith, who is now the special counsel against Donald Trump. That case went to trial, and John Edwards was acquitted of several of the charges against him. On the remaining charges, the jury couldn't reach a verdict, so it was a hung jury, and the Department of Justice dropped the matter.

They decided not to proceed. Facts of that case were worse because the funds were coming from an outside person who had previously contributed to John Edwards' campaign, and it had contributed generally. All of these funds came from Donald Trump. Donald Trump could use his money however he wants to, including to support his own campaign. So I think this is a very problematic case. I consider it very ironic that a district attorney who has been criticized a lot and rightfully so for pleading down serious felony cases to misdemeanors, here, because the defendant happens to be Donald Trump is taking what should it most be minor misdemeanors and is ramping them

up into serious felony charges. Yeah, well, we have a ways to go. We know that this case is in New York City, out of New York City, is going to go well into May at the very least. But John Malcolm, thank you for your time. We really appreciate it, as always. It was my pleasure. Great to be with you.

And with that, that's going to do it for today's episode. Thanks so much for being with us here on the Daily Siddle podcast. If you haven't had the chance, make sure you check out our evening show. Of course, you'll want to catch the news before you head into the weekend. Make sure you're caught up every day around at 5 p.m. we bring you the top news of the day. And also, if you would take a minute to leave the Daily School podcast, a five-star rating and review. It's really helpful to us to hear your feedback to know what you're liking about the show and also know what you want to see more of. Thanks again for

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