The Daily - Trump Wins Broad Immunity

Episode Date: July 2, 2024

On Monday, the Supreme Court ruled that former President Donald J. Trump is entitled to broad immunity from criminal prosecution for actions that he took while in office.Adam Liptak, who covers the Supreme Court for The New York Times, explains how that ruling will weaken the federal case against Mr. Trump for trying to overturn the last U.S. presidential election, and will drastically expand the power of the presidency itself.Guest: Adam Liptak, a Supreme Court correspondent for The New York Times.Background reading: The Supreme Court says Mr. Trump has some immunity in the election case.The decision is an extraordinary expansion of executive power that will reverberate long after he is gone.What the immunity ruling means for Mr. Trump.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From The New York Times, I'm Michael Barbaro. This is The Daily. On Monday, the Supreme Court ruled that former President Trump is entitled to broad immunity from criminal prosecution for actions that he took while in office. My colleague, Adam Liptak, explains how that ruling will weaken the federal case against Trump for trying to overturn the last election, and will dramatically expand the power of the presidency itself.

It's Tuesday, July 2nd. Adam, within the past few days, former President Trump experienced a major political victory at the first presidential debate against President Biden, who did quite badly. And now Trump has won a major legal victory at the Supreme Court. He's having a good week. And the Supreme Court on Monday severely undermined a case that really troubles former President Trump. And so he's got political victories. And he might even say that he's got a constitutional victory because the court in large part embraced his version of presidential power. Okay, and we're going to get to all the details of this ruling. I want to just remind listeners about the origins of this case.

It begins with the events leading up to January 6th, and it has had a pretty long journey to the high court. Right. The special counsel, Jack Smith, indicted former President Trump for what Smith said were Trump's efforts to subvert the 2020 election. And that case was chugging along until Trump's lawyers went to the district court and said, wait a second, the president has constitutional immunity from prosecution, at least for his official acts. rejected by the trial judge, by a unanimous three-judge panel of the D.C. Circuit, and then it goes to the Supreme Court where people, and I got to say including me, didn't think Trump had the best chance of prevailing. But when the case was argued, the right side of the court, the sixth justice conservative supermajority, seemed quite taken by Trump's arguments. And what was it about Trump's arguments that seemed to find sympathetic ears among the conservative justices once the case reached the court that these lower court judges completely

rejected? The conservative justices looked at the case as presenting an abstract question about the scope of presidential power and the role of the president in the constitutional structure. And that was quite different from what the lower courts had thought about. They were looking at the particular facts of the case and asking whether Trump's alleged conduct was so unprecedented that you have to focus on those allegations. Whatever the general idea is about presidential power, these lower court judges thought there needs to be an exception when the former president is accused of having used his office to undermine democracy itself. Got it. Right. Okay. I think that brings us to Monday's ruling. So tell us how the justices

ended up weighing these two very different arguments. The justices split 6-3 along the usual lines, which is to say the six Republican appointees in the majority, the three Democratic not a Donald Trump case, that the Constitution requires an energetic, vigorous, independent president who is not concerned about being potentially criminally prosecuted for things he did in office. So what they rule is that the president has immunity for his official conduct, and that official conduct is defined quite broadly to the outer perimeter of his official duties. And the court draws some distinctions. There are some core activities of the presidency, commander-in-chief, the pardon power, and so on, where it truly is absolute. And they give an example of that kind of truly absolute power. If you're discussing with your own attorney general what official actions to bring, even in connection with the election, that's absolutely immune. that's absolutely immune. Other official conduct, they say, is presumptively immune, but even that is a really high standard because they say what they mean by presumptive immunity is that prosecutors have to show that the prosecution wouldn't endanger or even get

near any official conduct. So the bottom line is, so long as it's official conduct, there is a very, very high barrier to any kind of prosecution. Okay, so that is an extremely broad-sounding level of immunity that the Supreme Court has just conferred on the day-to-day official actions of a president. So I want to further define this concept of official acts, especially this phrase of the outer perimeter of official duties and understand just how wide that perimeter is. And let me be super specific, because as this case has made its way up to the Supreme Court,

the hypothetical that is evoked time and again is of a president using his or her official authority to perhaps order the assassination of a political rival and then claim that was an official act because as president I have power over the military. Does this ruling seem to apply that immunity to an action like that? to apply that immunity to an action like that. So the majority doesn't deal with that precise scenario. But the logic of it is that if it's part of the president's official duties, he's commander in chief, he's the chief law enforcement officer,

and if it's a plausible application of his official responsibilities, then yes, he would be immune, even for things as wild as ordering an assassination. Hmm. So this immunity is entirely separate and apart from whatever the motivation of the president is in taking an official act that might ordinarily be seen as criminal and prosecutable. So Michael, Chief Justice Roberts actually answers in so many words the question you just asked.

He says, in dividing official from unofficial conduct, courts may not inquire into the president's motives. Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose. So they really want to insulate the president from prosecution and from courts second-guessing the president's thinking. Wow. I mean, a truly profound view of the president's power and immunity from criminal prosecution. Why would the majority embrace that really, really robust view of presidential power and legal immunity? What is the legal theory that Roberts and the majority lay out to justify it? and the majority lay out to justify it. They say that the Constitution contemplates a very powerful chief executive, that it imbues him with power,

that it makes him the head of one of the three branches of government, and that ideas like the separation of powers insulate him from either Congress passing laws that would subject him to criminal prosecution or the courts deciding whether he has crossed lines into illegality. It feels like that view of presidential immunity is all about getting out of the president's way, keeping the legal system out of the president's hair. And it would seem to assume a general law abidingness and even, dare I say, morality from the presidency. And it doesn't seem to really want to grapple with the idea that a president would blatantly stray into open lawlessness in his or her official acts. All right, Roberts writes that this is the first time a prosecutor is thought to charge a former president with a crime.

And he seems to say that that means there's something wrong with this prosecution. that that means there's something wrong with this prosecution. But another way to look at it, Michael, is that this may be the first president who did engage in the kind of, as you put it, lawless conduct that would demand accountability, at least after he leaves office. We have been talking about official acts and the immunity that this decision confers on them from a president, Adam. What does this

ruling say about unofficial acts? And what even is an unofficial act according to this ruling that, if done, might subject a president to criminal prosecution? So the decision doesn't get into or give particular examples of unofficial private conduct, but it's not hard to think about it. I mean, there are things that are completely divorced from the president's official duties. Let's assume Trump was involved in a business deal that gave rise to illegality, didn't pay his taxes,

was involved in a car accident. So there is a narrow category of things, but they are all, the Supreme Court suggests, wholly divorced from, entirely separate from, outside the outer perimeter of the president's official conduct. All to say there is a sphere of decision-making that could get a president prosecuted, criminally charged after they leave office, but it sounds quite narrow. That's right.

The majority leaves very little room to hold former presidents accountable for asserted criminal conduct, and the dissent is very aware of this. I mean, this gives you a sense of just how big a deal this decision is. Justice Sonia Sotomayor, in her dissent, says the majority has done the following. The relationship between the president and the people he serves has shifted irrevocably. In every use of official power, the president is now a king above the law. power, the president is now a king above the law. So if you think about it as a matter of like constitutional theory, the gap between the majority and the dissent could not be bigger. And the disagreement about whether former presidents can be held to account is enormous. But the dissent is also keenly aware of a practical point that this ruling will make

the possibility of prosecuting former President Trump ever, and certainly before the coming election, very, very difficult. We'll be right back. very specific question of how, as you just said before the break, this Supreme Court ruling is going to make it harder for the special counsel to prosecute Trump for seeking to overturn the 2020 election. Right. So as we've been saying, Michael, the basic question is, is the conduct official or unofficial? Right. And the Supreme Court sets out some guidelines, some ideas about what falls on which side of the balance, but it says it's not going to do the work itself. the Supreme Court says is a difficult and fact-intensive and presumably time-consuming job in which she will have to decide what is absolutely immune from prosecution, what is official conduct that is presumptively immune from prosecution, and what is purely private conduct. And the Supreme Court draws some faint lines,

and it starts to say that, well, one thing we know is absolutely immune from prosecution is the president's communications with the Justice Department. The Justice Department reports to him. That's official. And, of course, that would seem important because President Trump communicated a good deal with his Department of Justice in his effort to interfere with the 2020 election. I recall him trying to install a favored attorney general towards the end of his presidency who he thought would do his bidding in the effort to overturn the election. So that seems like a pretty big sphere to exempt from the special counsel's prosecution. Quite right. But I guess I'd say that if you put aside what happened and the particulars of it and Donald Trump and that shadow Attorney General Jeff Clark,

most people, if you were to ask them the abstract question of is the President of the United States allowed to appoint his own Attorney General, might say yes. That's part of his official duties. So you can disagree given the particular circumstances here. But viewed as an abstract question, it's not wholly crazy to think that's official. Okay. What other guidance does the court give in terms of what is immune or not immune in the special counsel's January 6th case? immune, but the court says it's complicated. We're going to presume it's immune, and maybe the prosecutors can come up with some way of overcoming that presumption, but it sure seems to be sending the signal that there too, that's official and therefore exempt from prosecution. And again, that's meaningful as a piece of evidence in the special counsel's case because President Trump was repeatedly pressuring his vice president to not sign off on the transfer of power from Trump to Biden.

And he was constantly pushing Pence to agree to a scheme of alternative delegates who might keep Biden from becoming the president. So, right. So, in these two areas already, and we've just talked about two, the court seems to be cutting major pieces out of the indictment and out of the case against Donald Trump. I'm curious what actions the president took around January 6th that this ruling specifies as not being subject to this immunity? So the majority opinion doesn't say for sure that any particular act is unofficial conduct and therefore prosecutable. But it does suggest that it's at least possible that, say, some of what Trump said on January 6th might be unofficial conduct. That some of his contacts with, say, state election officials, not part of his administration, might be unofficial conduct.

might be unofficial conduct. But it will be up to prosecutors to overcome a presumption that all of that is official conduct, and it will be up to the trial judge to decide who's right. But all of this is the beginning of a very long process. Right, and that word long process is important because when it comes to the January 6th prosecution, we have always understood the special counsel's desire to bring this case and have it adjudicated before Donald Trump could win re-election and use his power as president

to theoretically intervene in and interfere with the prosecution of him as president. What critics of Donald Trump have long hoped for is that there would be before the election a trial not only to hold Trump criminally accountable as they think he should be, but also to let the American people have a look at all of the evidence against Trump in this sphere. And that prospect seems to be evaporating before our eyes. In short, this ruling clearly kneecaps much of the January 6th prosecution against Trump. It may even end that prosecution if Trump gets reelected. And just to go back to the majority's logic in this ruling that it's so much bigger than Trump and it's so much bigger than the January 6th

case, it's about presidential power. I wonder if that means the majority is kind of willfully ignoring the reality of what their ruling on Monday means for the specific case before them, the January 6th prosecution, or perhaps just not caring about that. I think there's a bunch of things that the court, maybe properly, maybe not, doesn't seem to care about. It doesn't care about the fact that its public approval ratings have dropped precipitously, and this case is not going to help among major parts of the American public. It doesn't seem to care that two members of the majority, Justices Clarence Thomas and Samuel Alito, have faced calls for their recusal, and it doesn't care about the election. It doesn't view this as an election case. It views this as a major case on presidential power, and it's made almost no efforts to send it back to the trial court in time for it to have a trial before the election. It expedited the case a little bit, but not very much, issued its decision on the very last day of the term. And all of this speaks to

a court that views itself as deciding important but quite abstract legal questions. Well, if we take the conservative majority at its word, Adam, and believe that they are making this big abstract ruling in the name of preserving or expanding presidential power and protections, it strikes me that Donald Trump is benefiting mightily from the Supreme Court's inclination to see its decisions as affecting all presidents, not just him, and assuming, as it seems to do in this ruling, that your average president

is going to be law-abiding rather than law-challenging or violating. It is certainly a gift to Donald Trump, and the majority would say he's the incidental beneficiary of an important, broad ruling about presidential power. It would be easier to take that point of view seriously if the gift came from the entire Supreme Court. Fair. came from the entire Supreme Court, rather than from a part of the Supreme Court, precisely the six justices named by Republican presidents, over the vehement objections of the three justices named by Democratic presidents. So I would like to think that this is a good faith dispute unrelated to the particular consequences in the particular case about Donald Trump. But that lineup challenges my wish to think that both sides are operating in perfect good faith. Another way to think about this ruling, if you step way back, is that it's kind of the Supreme Court saying that when you elect a president, you have to accept, dear American people, that the Constitution gives them a tremendous amount of power and legal latitude to kind of do what they want under this rubric of official acts.

And we, the Supreme Court, are going to make it pretty hard to hold that president criminally responsible for their actions. So voters need to think really carefully about who they want to possess this level of immunity. I mean, the ruling doesn't say that, of course, but it's also the case that the court authentically wants to protect every president, including Joe Biden. Let's assume a world in which Biden loses, Trump wins, and Trump follows through on thinly veiled threats to exact retribution from his political rivals and tries to prosecute Biden. This ruling would very much protect Biden. And Chief Justice Roberts writes that presidents take many controversial and unpopular acts that are not hard to characterize as criminal. Do you want the next president to be prosecuting the former one that's never been part of the American legal tradition? So this is good, I suppose, for outgoing presidents

who will not be prosecuted by their political rivals over what they did in office. But it does a second thing. It emboldens the next president and the president after that to test the boundaries of presidential power, because they'll know that the Supreme Court has said there is almost nothing they can do in an arguably official way that will ever cause them to be prosecuted criminally after they leave office. Well, Adam, thank you very much. We appreciate it. Thank you, Michael.

On Monday afternoon, both President Biden and former President Trump issued statements reacting to the court's ruling. Trump celebrated the decision, calling it, quote, a big win for our Constitution and democracy. The Biden campaign denounced it, saying that the court had, quote, handed Donald Trump the keys to a dictatorship. We'll be right back. Here's what else you need to know today. Here's what else you need to know today. Hurricane Beryl, the first Category 4 storm to ever materialize this early in the hurricane season,

made landfall Monday on Karaku, a small island north of Grenada. The result was extraordinary devastation across the island. Hurricane Beryl shocked meteorologists because it strengthened from a tropical depression into a major hurricane in just 42 hours, a direct result of higher than normal water temperatures throughout the region. And House Republicans have sued the U.S. Attorney General Merrick Garland in an effort to obtain audio recordings of President Biden's interview with a special counsel who raised questions about Biden's memory and mental fitness. If successful, the lawsuit would give Republicans embarrassing audio to use against Biden at a time when his debate performance has put his age at the center of the presidential race.

Today's episode was produced by Olivia Nat and Diana Nguyen. It was edited by Patricia Willans with help from Lisa Chow. Contains original music by Alicia Baetube and Diane Wong. And was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Lantzwerk of Winderly. That's it for The Daily. I'm Michael Barbaro.

See you tomorrow.