The Daily - Trump’s Case for Total Immunity

Episode Date: January 10, 2024

Donald Trump has consistently argued that as a former president, he is immune from being charged with a crime for things he did while he was in office.Adam Liptak, who covers the Supreme Court for The Times, explains what happened when Trump’s lawyers made that case in federal court, whether the claim has any chance of being accepted — and why Trump may win something valuable either way.Guest: Adam Liptak, a Supreme Court correspondent for The New York Times.Background reading: Trump’s immunity claim in court.Analysis: Trump says his acquittal by the Senate in his second impeachment trial makes him immune from prosecution.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, this is The Daily. I'm Natalie Kittroweth. Donald Trump has consistently argued that, as former president, he's immune from being charged with a crime for what he did in office. Today, my colleague Adam Liptak on what happened when his lawyers made that case in federal court, whether the extraordinary claim has any chance of being accepted, and why Trump may win something valuable either way. It's Wednesday, January 10th. Adam, hi. Welcome back to the show. Hello. So, Trump and his lawyers appeared in a federal appeals court Tuesday to make their case that as a former president, Trump is immune from criminal prosecution.

Basically, that the Justice Department cannot charge him for a criminal act, which if Trump wins, seems like it would make a lot of his legal troubles go away. Is that right? Yeah, it's an extraordinary ask. Yeah, it's an extraordinary ask. He says he has absolute immunity from criminal prosecution for anything resembling an official act while he was president, even after he's no longer president. Adam, can you take us back, just explain how we got here? Well, the criminal case against former President Trump, I say the criminal case, case against former President Trump, I say the criminal case, the criminal case we care about today, because it's one of four, is a federal indictment brought by special counsel Jack Smith arising from Trump's efforts to overturn the 2020 election. So that charge is filed in federal district court in Washington. And among Trump's responses is to file a motion saying,

you can't prosecute me because I have immunity from criminal prosecution for my official acts when I was president. And the trial judge considers that motion and rules against Donald Trump, says we have presidents, not kings, and you're responsible for criminal conduct if the prosecution can prove it. Trump appeals. It goes to a three-judge panel of the United States Court of Appeals for the D.C. Circuit, a federal appeals court in Washington. Oh, yay. Oh, yay. Oh, yay.

And they heard a very lively argument today. All persons having business before the honorable, the United States Court of Appeals for the District of Columbia Circuit, are admonished to draw near and give their attention. So you said this was an extraordinary ask by the former president to be granted absolute immunity. Tell me about the Trump argument here. Why would he be immune? Mr. Sauer, where do you balance? Mr. Pierce, where do you believe? Sauer, good morning. Well, at 9.30 Tuesday morning, his lawyer, John Sauer, steps up to the lectern, addresses the three-judge panel, and makes an aggressive argument.

If a president has to look over his shoulder or her shoulder every time he or she has to make a controversial decision and worry after I leave office, am I going to jail for this? When my political opponents take power, that inevitably dampens the ability of the president. He says a president is the head of one of the three branches of government, and that gives him special power and special immunity from prosecution that we can't have our presidents distracted when they're trying to make tough decisions. To authorize the prosecution of a president for his official acts

would open a Pandora's box from which this nation may never recover. And he says allowing criminal prosecutions would open up a Pandora's box of criminal actions taken against former presidents of all kinds for all sorts of things. Could George W. Bush be prosecuted for obstruction of an official proceeding, for allegedly giving false information to Congress to induce the nation to go to war in Iraq under false pretenses? Could President Obama be potentially charged with murder for allegedly authorizing drone strikes targeting U.S. citizens located abroad? So he's saying that there could be this flood of prosecutions and that presidents need to be able to operate without fear of that, that it could be dangerous to the public good.

It could interfere with the president's ability to execute his duties. Yes. And there's a logic to that, Natalie. We don't want our presidents distracted. we want them to be able to make smart decisions in real time about very difficult questions without looking over their shoulders, without being afraid of prosecution. And the Supreme Court has, in a limited way, endorsed this idea in a case from 1982 called Nixon v. Fitzgerald. from 1982 called Nixon v. Fitzgerald, when President Richard Nixon was a former president, he was being sued by a whistleblower who said that Nixon had unfairly dismissed him.

And the court says, we can't have constant lawsuits against even former presidents, because that would make their day jobs really difficult when they're thinking about, am I going to be sued for something? And therefore, by a five to four vote, in the context of civil litigation, where people are seeking money, private parties seeking money, not criminal conduct, the Supreme Court says, yes, the president has absolute immunity from being sued for money up to the outer perimeter of his official conduct. But that's one category. Lawsuits for money are one category, and the Supreme Court has spoken to that. It hasn't directly spoken to criminal prosecutions, which are, I would think, a much more deliberate, sober, measured action taken by professional prosecutors, particularly from the Department of Justice. And that effort to vindicate criminal law is different in kind, the Supreme Court has suggested, than lawsuits for money.

than lawsuits for money. Yeah, I mean, part of the difference is that obviously anyone can bring a lawsuit, but not everyone can bring a criminal case against someone. Exactly right. Okay, but in the Nixon case, he's given immunity, you just said, in part because he was acting in his official capacity. I mean, my question is, is what Trump is accused of here reasonably considered part of his official duties? I mean, he's accused of seeking to overturn the election. Is his team making the case that seeking to overturn the election was part of his job as president? That's what they say. Not in those terms. They wouldn't say that his job was to overturn the election. They would say his job was to investigate claims of election misconduct by other people.

You know, responding to widespread allegations of fraud, abuse and misfeasance in a presidential election, trying to find how to respond to that. And there that's the national interest. And he did that, they say, maybe not very convincingly, in his official capacity and not as a candidate seeking re-election. This is a point of real vulnerability for Trump. But the case as it reaches the appeals court is about whether he has absolute immunity for all official conduct and not details about what is and is not official conduct.

And one of the judges, Judge Karen Henderson, makes the strong point that even official conduct can be quite problematic. to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal laws. So is Trump's lawyer essentially making the argument that a president shouldn't be prosecuted for anything he does in office? I mean, at the end of the day, a crime is a crime, right? Well, the judges certainly seem to feel that way. And they tested that question that you're asking, Natalie, with some wild hypotheticals. And so in your view, could a president sell pardons or sell military secrets? Those are official acts, right? It's an official act

to grant a pardon. It's an official act to communicate with the foreign government. And such a president would not be subject to criminal prosecution. So they asked, well, what if the president was selling pardons? What if he was selling military secrets? Could a president order SEAL Team 6 to assassinate a political rival? That's an official act in order to SEAL Team 6. What if he sent SEAL Team 6 off to assassinate a political rival? He's the commander-in-chief. He's allowed to send SEAL Team 6 off to do things. But almost everybody would agree that it's a crime. And Trump's lawyer didn't shy away from those hypotheticals. And they did not get the answer that perhaps you would expect.

He would have to be and would speedily be, you know, impeached and convicted before the criminal prosecution. He said that the president is immune from criminal prosecution with one exception, could only be prosecuted if he was first impeached by the House and convicted by the Senate for that conduct. And in that narrow circumstance, and only in that narrow circumstance, Trump's lawyer said, would a criminal prosecution be appropriate? Trump's lawyers said, would a criminal prosecution be appropriate? Let me get this straight. He's saying the only way for a president to be prosecuted for ordering, say, the murder of a political rival, is if he's first impeached and convicted by the Senate for that crime. That's, I mean, impeachment is a political process decided by partisan elected officials. He's saying they decide whether the judiciary branch can prosecute crimes. That's what he says the Constitution contemplates.

He says the Constitution contemplates a very strong president with a lot of room to maneuver, subject to oversight by the House and Senate in the quite limited impeachment proceeding process. So I just want to confirm your position is if President Trump had been convicted after his impeachment trial on incitement of insurrection, if he'd been convicted, then this prosecution would be entirely proper. And Judge Florence Penn makes the point that even that construct is a little weird, because Trump is arguing he has absolute immunity in every circumstance, but he's just found a circumstance in which he's not absolutely immune. If there is impeachment by the House and conviction by the Senate, he can, he concedes, be prosecuted.

Which I would say that if you were impeached and convicted for the same and similar conduct, then that would authorize a subsequent prosecution. Obviously, we have many other issues with this prosecution. Is that a yes? So I do. Because I think you said in your brief that that impeachment for incitement of insurrection is based on the same or related conduct as that which is in the indictment. Yes, yes. Yeah, I agree with that. So the notion of absolute immunity is not quite right. Right. It seems like this kind of negates the whole thing about how the president is immune from prosecution if he's committing crimes in an official capacity. I mean, Trump's lawyer is saying that if a president is convicted by Congress,

he can be prosecuted. And he also seems to be saying if he's not impeached and convicted by Congress, he cannot be prosecuted. What should we make of that? So it's not the only obvious reading of what lawyers call the impeachment judgment clause. The impeachment judgment clause says that if you're impeached and convicted, the punishment you get from Congress is no more than removal from office and possibly being banned from holding office again. And then there's a second part of the clause that says, notwithstanding all that, you're still subject to prosecution. So if convicted, you're still subject to prosecution. Trump reads that in a non-obvious way to say, if not convicted, not subject to prosecution. And that, you know, if you took logic in college,

you might think that does not quite parse. If the court has no further questions, we would ask the court to reverse. And if the court rules against us in any respect, we renew our request that the court stay its mandate to allow us to seek further review. Thank you, Your Honor. So it sounds like the judges are pretty skeptical

of the Trump argument here. Yeah, all three judges have serious problems with major aspects of the arguments set out by Trump's lawyer, and they seem to be eager to see what the government has to say. We'll be right back. Adam, you just said the judges were eager to hear the Justice Department's case. So how did that go? How did the government lay out its case? Good morning, and may it please the court. So James Pierce,

Justice Department lawyer, a member of Special Counsel Jack Smith's team, gets up and makes a general point. Never in our nation's history until this case as a president claimed that immunity from criminal prosecution extends beyond his time in office. This is a case where a sitting president has tried to subvert an election. At a minimum, this case, in which the defendant is alleged to have conspired to overturn the results of a presidential election, is not the place to recognize some novel form of criminal immunity. He says that this is not the case in which you need to be making any kind of nuanced or elaborate legal judgments. And whatever can be said about official acts and immunity in some setting or not. This fits squarely within the possibility of pursuing a criminal prosecution. Okay, so what does the government's lawyer say specifically about Trump's arguments? How does he respond? Well, he rejects, for instance, the idea that Trump's

lawyers pressed that allowing this prosecution would open the floodgates to all kinds of prosecutions of other presidents. The careful investigations in the Clinton era didn't result in any charges. The fact that this investigation did doesn't reflect that we are going to see a sea change of vindictive tit-for-tat prosecutions in the future. I think it reflects the fundamentally unprecedented nature of the criminal charges here. Pointing out that we have lived in this republic for more than 200 years and not come across anything remotely like this. And there's no reason to think we would see it again. And he says that criminal proceedings are serious matters, constrained in many ways. That is a process which has the kinds of safeguards

that a couple of members of the court here have already referred to. We're talking about prosecutors who follow strict codes. Not only by prosecutors making hard calls about which cases to bring, but grand juries doing the indicting, trial judges supervising the trial, juries hearing the case, an elaborate appellate process, that there are all kinds of checks in the system to make sure that any eventual conviction is justly deserved. I have to ask, though, Adam, I mean, there is this widespread belief that while the criminal justice system is not supposed to be politicized, while it's supposed to operate with the checks and balances that the government's lawyer laid out, that in reality, there are a lot of political motivations

behind some of these criminal cases. And, you know, maybe these safeguards aren't actually working. Well, former President Trump supporters certainly believe that this prosecution and others are politically motivated. They point out that although there's a special counsel somewhat insulated from the Justice Department, nonetheless, the person at the head of the current executive branch, President Biden, is former President Trump's main political rival. So it's not easy to convince people who are supportive of President Trump and skeptical of this prosecution that there's no element of politics at play here. And Trump's lawyer raises the possibility that there could be a criminal prosecution, say, of Joe Biden for failing

to control the border adequately. I'm not sure that's a crime, but he raises the idea that one criminal prosecution of one former president will beget another and open the floodgates in that way. Okay. And what about this question of acting in an official capacity and whether that confers immunity? What do the government's lawyers say about that? The government's lawyer says that these two things are not mutually exclusive, that you can be acting in an official capacity and you can be committing grave criminal wrongdoing. The lawyer echoes the point from Judge Henderson.

I fully endorse or agree with the idea of the paradox of a president, on the one hand, having the Article 2 take care responsibility, and on the other hand, sort of seeing compliance with the law as optional. That there's an element of paradox about this, that your job is to execute the laws faithfully, and yet you are violating a criminal law, and you could be immune from that. I mean, what kind of world are we living in if, as I understood my friend on the other side to say here, a president orders his SEAL team to assassinate a political rival and resigns, for example, before an impeachment, not a criminal act. And then he returns to the example of the political assassination ordered up via SEAL Team 6 and says that cannot be the case, that you are immune from prosecution for murdering your political rivals unless

Congress acts by impeachment and conviction. I think that is extraordinarily frightening future and that is the kind of, we're talking about a balancing and a weighing of the interest. I think that should weigh extraordinarily heavily in the court's consideration. And there's a brief rebuttal from Trump's lawyer, John Sauer, in which he makes the case that the future is frightening, but for a different reason than the government says. We are in a situation where we have the prosecution of the chief political opponent who is winning in every poll and is being prosecuted by the administration that he's seeking to replace, that is the frightening future. That is tailor-made to launch cycles of recrimination that will shake our republic for the future. It's interesting, there's these kind of two dueling visions of what the frightening future that this case leads to actually is on either side. It's the case of the dueling dystopias. So Adam, what's going to happen here?

I mean, it seems like things didn't go that well for Trump in the courtroom today. The judges don't seem to be leaning towards siding with him. How does this end? I think in very short order, this court is likely to rule against Donald Trump. He will then either take his appeal to the full D.C. Circuit, not because he's likely to win there, but because he has every incentive to delay and to burn up time, and then to the U.S. Supreme Court, which had earlier turned this case away. Jack Smith, the special counsel, had asked the court to leapfrog the appeals court and hear the

case right away. They wouldn't do that, but they are more likely than not going to weigh in for at least two reasons. One, if a question of this constitutional importance, the scope of presidential immunity from criminal prosecution is going to be decided by a court, it probably ought to be the Supreme Court. And second, because the court has already agreed to hear questions about Trump's eligibility in Colorado and really around the nation, the court might like to have the option of issuing one decision favoring Trump and one decision not. And because this immunity argument is so ambitious and such a long shot, you might think the Supreme Court would rule against Donald Trump in that case and perhaps find a way to keep him eligible on the ballot in the other case.

You're saying the court might want to rule against Trump here so that they can preserve the sense of balance when they rule in favor of him in the cases in Colorado and other states where they're trying to get him off the ballot? They would never admit to that. They would probably not even have a conscious feeling about doing that. But history is replete with days at the end of the term in June when liberals score a big victory and conservatives score a big victory, and it just happens to work out that way. Now, that's in an era where the court was more closely divided, so all of this is speculation only, but it would not be shocking if the court trying to maintain its reputation as itself an apolitical institution were to go one way in one case and one way in the other. Okay, you think this will end up at the Supreme Court, but my question is when? And I'm asking because, of course, the timing of all of this is important.

Obviously, there's an election. The Iowa caucus is next week. I mean, you said part of the Trump strategy here is not just to gain immunity, but also to delay the trial. The trial continues to be scheduled for March 4th. With each passing day, it makes it more likely it's going to slip. makes it more likely it's going to slip. Just getting a decision out, then getting a request to the full appeals court to hear the case, then going to the Supreme Court, then the court either turning it away or hearing arguments and deciding it, all of that, even if done at a brisk pace by legal standards, will take weeks, if not months. And that's been one of Donald Trump's main legal strategies in this case and in other cases, to kick the can down the road, to slow things up. And the more he can delay, the more options he has.

He may well lose at the appeals court, at the Supreme Court, and at the same time win something very valuable for him, which is to get enough delay to lock in the nomination of one of the two major political parties, even as he is accused of serious crimes. Adam, thank you so much. Thank you. We'll be right back.

Here's what else you need to know today. On Tuesday, Walter Reed Medical Center revealed why Secretary of Defense Lloyd Austin had been hospitalized more than a week ago, a hospitalization Austin had severe abdominal, hip and leg pain after undergoing a procedure for prostate cancer. Officials said his condition has since improved and called his cancer prognosis, quote, excellent. And in a court filing this week, a lawyer for one of the defendants charged alongside former President Trump in the Georgia election interference case said that the district attorney overseeing that case, Fannie Willis, had engaged in a, quote, clandestine relationship with the special prosecutor she hired for that case. The filing provided no proof of the relationship, but argued that it should disqualify the district attorney and the special prosecutor from prosecuting the case. Today's episode was produced by Alex Stern, Eric Krupke, was produced by Alex Stern, Eric Krupke, and Jessica Chung. It was edited by Paige Cowett and Lisa Chow.

Contains original music by Marion Lozano, Dan Powell, and Alisha Ba'itub. And was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landsberg of Wonderly. That's it for The Daily. I'm Natalie Kittroweth. See you tomorrow.