The NPR Politics Podcast - Absolute Immunity?

Episode Date: April 25, 2024

Months after Special Counsel Jack Smith first asked the Supreme Court to weigh in on Donald Trump's claim of absolute immunity from criminal prosecution, the Supreme Court finally heard the former president's appeal. At least a few of the conservative justices seemed receptive to Trump's argument. What is unclear is whether the court will act in time to allow the federal cases against the former president to be resolved before the 2024 election. This episode: senior White House correspondent Tamara Keith, national justice correspondent Carrie Johnson, and senior political editor and correspondent Ron Elving.This podcast was produced by Kelli Wessinger and Casey Morell. Our editor is Eric McDaniel. Our executive producer is Muthoni Muturi. Listen to every episode of the NPR Politics Podcast sponsor-free, unlock access to bonus episodes with more from the NPR Politics team, and support public media when you sign up for The NPR Politics Podcast+ at plus.npr.org/politics.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hi, this is Maddie from Portland, Oregon. I just finished my last exam of nursing school. This podcast was recorded at 1.27 p.m. Eastern Time on Thursday, April 25th. Things may have changed by the time you hear this, but I'll be studying for my NCLEX and getting ready to become a registered nurse. All right, here's the show. A most honorable profession. Congratulations. Absolutely. Congratulations. Hey there, it's the NPR Politics Podcast. I'm Tamara Keith. I cover the White House. I'm Carrie Johnson. I cover the Justice Department. And I'm Ron Elving, editor correspondent. Is a president of the United States immune from federal criminal prosecution for actions taken while in office, even after he or she leaves office? It was the question before the Supreme Court this morning.

Carrie and Ron, you were listening. And this was an appeal brought by former President Donald Trump and his attorneys. But remind us exactly what Trump is alleged to have done here. This involves the four count felony indictment against the former president here in Washington, D.C. that special counsel Jack Smith brought. Some of the charges include conspiracy to obstruct the electoral count on January 6, 2021, conspiracy to defraud the United States, and conspiracy to deprive people of their votes in 2020. All of this, of course, relates to alleged election subversion by the former president. Ron, although this was about Trump, the justices seemed quite conscious of the fact that they wouldn't just be setting precedent in this moment, but that they would be setting precedent for all

time. For the ages, as Justice Gorsuch said. And this was a theme for several of the conservative justices talking about the precedent that would be set, the implications for presidents, the weakening of the office of the president. And some of the language that they used seemed quite close to the language being used by the attorney who was representing the president's appeal, John Sauer. This is not someone who has had a long history arguing before the Supreme Court. He was Solicitor General in Missouri. He's associated with Senator Josh Hawley when Hawley was Attorney General in Missouri. So he has strong credentials, but those credentials do not include a lot of arguments in front of the Supreme Court. Nonetheless, there seem to be some sympathetic ears and people actually adopting some of his language in the questioning that ensued. specifically to the justices today? John Sauer basically told these justices that prosecuting a former president would be a mortal threat to the presidency, that it would cripple future presidents, logjam them, basically

tie their hands in making the most important decisions that they have to make in office. It would leave the presidency weak and hollow. He said that the Supreme Court has recognized some kind of immunity for presidents in the past, but that's in the civil context over lawsuits over money damages, not the criminal context as here. And Sauer also advanced this argument that a few of the conservative justices seem to want to bite on, which is that some of the statutes at issue in this indictment may not apply to the president. Maybe they apply to other people in the country, but not the president of the United States. How? Well, some of the language in these laws talk about whoever does this, that, or the other thing to conspire to obstruct or to deprive people of

their rights may not apply to the office of the president in the man in the White House, Sauer argues. But boy, oh boy, the implications of that are really astounding, as many of the liberal justices jumped all over him about. And there was a pretty extensive discussion and quite a few hypotheticals and some specifics drawn from the indictments about what constitutes an official duty of the president and what constitutes private activity. Is that where you see this falling? You know, the long and the short of it is that nobody seemed to entirely buy the idea that Donald Trump should get absolute blanket immunity. And a number of the justices, maybe more than five even, seem to think that there are parts of this case that should be allowed to move forward.

But the line drawing and where to carve out certain parts of the case and where to draw lines about future presidents and their powers is where the rubber is going to meet the road here. And so it's not at all clear to me how long it will take the justices to craft this decision. The special counsel lawyer arguing for Jack Smith and for the Justice Department in this case, Michael Dreeben, is a guy who's argued about 100 cases or more before the Supreme Court in the course of his career. And he basically told these justices they don't need to answer every single question. But a number of the justices seem preoccupied about the line between official acts and private acts.

Michael Dreeben was making the point, and the justices are familiar with him. He's had something like 100 arguments before the court. He was making the point that there was an office holder, Donald Trump, and there was an office seeker, Donald Trump. And that when he was doing certain things, that was as the president of the United States. But when he was literally soliciting people to be false electors or talking to lawyers about how they might go about subverting the process of the Electoral College, that was not an official act of the president. That was an act by an office seeker. And it wasn't just the liberal justices who bid on that. We have some tape from Trump appointee Amy Coney Barrett interrogating Trump's lawyer John Sauer about those very allegations. And I want to know if you agree or disagree about the characterization

of these acts as private. Petitioner turned to a private attorney, was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results. Private? As alleged. I mean, we dispute the allegation, but that sounds private to me. Sounds private. Petitioner conspired with another private attorney who caused the filing in court of a verification signed by petitioner that contained false allegations to support a challenge. That also sounds private. Three private actors, two attorneys, including those mentioned above,

and a political consultant helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding, and petitioner and a co-conspirator attorney directed that effort. You read it quickly? I believe that's private. I don't want to... So those acts you would not dispute. Those were private, and you wouldn't raise a claim that they were official. As characterized. What we would say, Your Honor, if I may, what we would say as official is things like meeting with the Department of Justice to deliberate about who's going to be the acting attorney general of the United States. Sure. Communicating with the American public.

Communicating with Congress about matters of enormous concern. Thank you. Thank you. Above and beyond, one of the points that Trump's counsel, John Sauer, was trying to make is that there is blanket immunity for a former president for things he did while he was in the White House. But even if there isn't, you've got to impeach him and convict him through the political process first. And that's how we got into, once again, remember at the appellate court, there were all these wild hypotheticals, including one a judge asked Sauer

about with respect to SEAL Team 6 assassinating a political rival and the president ordering that. We were in that land all over again today. The hypothetical SEAL Team 6 came back. It came back as did a hypothetical about the president ordering the military to pursue a coup. And when Sauer was asked about this, he basically said, well, there's the Uniform Code of Military Justice, which says you need to disobey an unlawful order. But we've got friend of the court briefs in this very case at the Supreme Court that say you would be putting service members in a terrible position if you found that a former

president had immunity and therefore would be absolved of criminal prosecution. And these low-level service members could themselves be prosecuted for following that order, that's a recipe for disaster, the friend of the court brief said. All right, well, let's take a quick break, and when we come back, more about the Justice Department's argument. And we're back. And now let's dig into the Justice Department's case. The lawyer for the Justice Department made his argument second in order. Carrie, tell us about it. Yeah, Michael Dreeben argued for the special counsel and for the Justice Department. And he basically said, if you buy Donald Trump's theory, he would be immunized or shielded from prosecution for a conspiracy to overturn the election and subvert the election results. And he said that just cannot be right. Moreover, Justice Elena Kagan, an Obama appointee, basically said the framers knew how to write the Constitution.

They could have given the president immunity. They decided not to, in part because Americans and the new country were rebelling against the actions of a monarch who had too much power. And we did give that new president some powers that were similar to those of a monarch, such as the pardon power, which is an absolute power and pretty much modeled on what the monarch could do. But they didn't do it with respect to immunity. And that, it would seem, was a powerful argument. So what kind of questions did he face from the justices? Michael Dreeben got a acts because the fact of the prosecution means that the former president has allegedly acted in defiance of the laws.

Do you agree with that statement? And there's been a big question about why the Supreme Court took this case anyway, why it took it now. The appeals court, which consisted of appointees from both Democrat and Republican administrations, unanimously found Trump did not have immunity in this case, in particular because it involved allegations of an effort to overturn the election. the lower court decision. And a number of other Republican appointed justices raised big questions about the idea of prosecutors who were acting in bad faith, who would go too far, who would engage in cycles of recrimination. And they wanted to make sure that those prosecutors were limited in some sense to protect the power of the presidency even after a president left office. Did you get a sense that there were questions to the Justice Department that undermined the case against President Trump, that the case could fall apart? There were a number of questions to the lawyer for the Justice Department along the lines of,

if we find that some of Trump's activities as cited in the indictment were official acts, the acts of a president, what part of your case remains? that fake slates of electors around January 6, 2021, and certain other behaviors of the former president involving documents and solicitation of statements that were false about election fraud, all of that should be able to go ahead. But Drieben did not concede that things like Trump's alleged effort to use the Justice Department to further his phony claims of election fraud should go away either. The government lawyer basically said that that should be evidence in any trial that the former president knew he was behaving wrongfully. And that intent standard is super important in any criminal case. So these arguments lasted more than two hours. There was a lot of very active back and forth. Sometimes you can come away from a Supreme Court hearing saying,

oh, they're going to be unanimous. Or, you know, do you have a sense, either of you, coming away of where this might be headed? Well, it's obviously going to be difficult to predict at this point. And as Niedertotenberg has reminded us all many times, you can't read too much into the questioning period. At the same time, the first thing we know is that the court could have let the D.C. Circuit Court decision, which was so strong, stand. They didn't. They wanted to hear it themselves. So one question is, was that just institutional responsibility? Were they saying to themselves, we need to be the Supreme Court? We've never been asked this question before. We should take the question and answer it firmly. Or did they have some real problems with what the circuit court had decided in some of the statement?

And we heard a little of this from John Roberts, as Kerry was describing. Did they want to push back on that a little bit? And did they want to nuance it a little bit? And are they going to come out with something a little bit more complicated, again, with this eye towards the future, not saying everything Donald Trump did was fine, not saying that, but saying, we want to be careful when we say the president is not immune, we want to be careful exactly what we mean. So we're kicking this back down to the trial court judge, and then whatever she decides is going to have to be appealable, and it may get back to us before we ever do see a trial. I want to be clear. This case is about what happened in the United

States shortly before, during, and after January 6, 2021. And at least three of these conservative justices took great pains at this argument today to say, oh, I'm not defending what happened there. I don't want to talk about what happened there. I want to talk about the future. There's a reason they don't want to talk about what happened on January 6, 2021, which is that what we saw with our own eyes, 140 law enforcement officers getting injured by a violent mob. And the allegation that the former president of the United States, who's running again, was at the center of a conspiracy about that. And so they tried to direct the conversation to the future, whereas the liberal justices were quite firmly in the here and now with respect to what this means for our election and potentially for our democracy. But in the here and now,

there is a trial on hold. There is a court date not yet set because they are waiting because essentially former President Trump's January 6th related trial hinges on what they decide and how they decide it and when they decide it. Do you have any sense of the timing? That's exactly right. So the magic number for a number of advocates who are supporting the Justice Department in this case is 25 days. This Supreme Court, this term, took 25 days from argument to decide the issue of whether Trump should be disqualified from the primary ballot in Colorado. They ruled in favor of Donald Trump after 25 days, which would be May 20th. I don't think, I don't think, hearing this two hours plus of argument today, that we're going

to get a decision that quickly. And every day matters for this trial, especially, especially because even if Donald Trump and his attorney, John Sauer, lose in their central contention, they want these justices to send the case back for more work. Here's what John Sauer and Justice Neil Gorsuch discussed today. And that left open in that case the possibility of further proceedings and trial. Exactly right. And that would be a very natural course for this court to take in this place. The court can and should reverse the categorical holding of the D.C. Circuit that there's no such thing as official acts, especially when it comes to... But you'd agree further proceedings would be required? That is correct.

Further proceedings. Further proceedings. Further proceedings potentially by the trial judge, Tanya Chutkin, and potentially her rulings there could be appealed all the way up all over again, which means the prospects for a trial this year before the election would be negative. No way. Right. Which, of course, leaves open the possibility that a second term for Donald Trump would begin with him putting a kibosh on the entire legal proceeding out of the

Justice Department here and presumably in the Mar-a-Lago case with the classified documents that he removed from the White House and kept and et cetera, et cetera, all of that could also be eliminated essentially by a newly appointed attorney general appointed by a newly installed and inaugurated President Trump. And that this more complete accounting of what did or didn't happen around January 6th with testimony that Americans haven't yet seen, they may not see it, or they may not see it before the election. I do want to take one step back before we close. If the court were to say, you know what, presidents are immune from their actions, full stop. Isn't that kind of like a turkey voting in favor of Christmas saying,

cook me up? You know, like what authority would the Supreme Court have? What authority would Congress have? Where's the balance of power there? You know, as several of the liberal justices said today, and as Jack Smith said in his briefs in this case, the country was founded on a belief that no person is above the law. And even some of the conservative justices, even some who bought into or seem to want to buy into the argument that some of the criminal laws in this country do not apply to a president of the United States. Even those justices said some laws do apply to a president. Laws about bribery, for instance. So John Roberts brought up over and over again this hypothetical of a president who takes money to appoint an ambassador. Well, appointing an ambassador is an official act of the president, but the taking of the money sure ain't. And so there have to be some lines. The question for these justices is not blanket immunity or nothing. It's that space in between and how long it takes them to decide what that space in between should look like. of course, of all these ramifications and all the consequences that will come from even a little further delay, even if they don't issue an opinion until late June.

And they are willing, apparently, to accept that because it is very important to them to be the arbiters of these things and not have it decided by a lower court and not have it decided by Congress. So in the protection of their part of the checks and balances system, which is certainly understandable, they may be producing a situation in which the checks and balances are knocked out of whack in a way we simply haven't seen before. All right, we're going to leave it there for today. I'm Tamara Keith. I cover the White House. I'm Carrie Johnson. I cover the Justice Department. And I'm Ron Elving, Editor-Correspondent.

And thank you for listening to the NPR Politics Podcast.