The NPR Politics Podcast - No Blanket Immunity For Trump

Episode Date: February 6, 2024

Three judge panel rules former President Donald Trump does not enjoy broad immunity from federal prosecution including for his actions on January 6th. It's a big legal defeat for Trump. Is the case headed for trial? This episode: Senior White House correspondent Tamara Keith, national justice correspondent Carrie Johnson, and senior political editor and correspondent Domenico Montanaro.This podcast was produced by Jeongyoon Han, Casey Morell & Kelli Wessinger. Our editor is Erica Morrison. 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.Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hello, this is Todd in Greeley, Colorado, where I'm on my way to the university to teach my class music for cartoons. This podcast is recorded at 1.50 p.m. Eastern Time on Tuesday, February 6th. Things may have changed by the time you hear this, but I'll still be trying to cram as many Bugs Bunny cartoons into my lectures as possible. Okay, here's the show. I was picturing Bugs Bunny. The roadrunner, if he catches you, you're through. What is it, don't make a wrong left turn in Albuquerque? I wonder how many times that'll show up on the PowerPoint.

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 Domenico Montanaro, senior political editor and correspondent. Former President Donald Trump does not enjoy broad immunity from federal prosecution, which means he has no immunity from prosecution for his actions on and around January 6th. That's the unanimous opinion of a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit. And it's a big defeat for Trump as he tries to avoid trial on four felony charges related to his efforts to stay in office after losing the presidential election in 2020.

Carrie, we have been waiting for this decision for weeks. What did the court say? The court pretty soundly rejected all the arguments former President Donald Trump was making. They said Trump does not enjoy absolute immunity for federal prosecution for acts he committed while in office in the White House. They wrote, for the purposes of this criminal case, he's citizen Trump. He's defendant Trump, not President Trump. And they talked about how it was a paradox that if the president who has a special constitutional duty to make sure the laws are faithfully executed can be the only person capable of defying those laws with impunity, that just didn't make any sense to them. I am remembering on this podcast a few weeks ago, or I guess it was a month ago, we discussed some pretty wild arguments that Trump's lawyers made during the oral arguments, for instance, that a president could order SEAL Team 6 to take out a

political opponent and that he couldn't be prosecuted unless he was first impeached by the House and convicted by the Senate. So how did the judges respond to that argument in their decision? That was a really wild hypothetical from one of these judges, Florence Pan. But ultimately, John Sauer, Trump's lawyer, basically conceded that if Trump had been impeached and convicted for that conduct, that he could be prosecuted. And so that cut a hole in his argument about having absolute immunity to begin with, these judges found. And they also basically said that impeachment is not criminal. Impeachment is different than prosecution. They also pointed out in a footnote, the many Republican senators who voted against convicting Trump at that impeachment trial over January 6, who later on said Trump might have to

face justice in a criminal court. Among those people are Senator Mitch McConnell. And so that was not lost on this panel. But this impeachment argument was always sort of a long shot thing, you know, because impeachment's always inherently been a political process, not a legal one. I mean, that's why there are these two different types of systems. But, you know, the thing that Trump has kind of accomplished here quite a bit is throwing everything at the wall they possibly can to delay these cases. And they've succeeded so far in at least pushing the ball down the road a little bit. Did the panel weigh in on whether what happened around January 6th, whether Trump trying to overturn the results of the election or searching for fraud or all of that was part of his official duties as president of the United States?

The panel, for the purposes of this stage of the case, talked about the allegations in the indictment as if they were true. And they talked about how the idea that Trump was allegedly attempting to subvert the will of the voters in this case was especially important in factoring into the analysis of that immunity. You know, Trump has argued these were official acts, even though one might argue he was acting in his capacity as an office seeker, as a candidate, as opposed to an office holder. And there's a footnote in this ruling today that talks about another decision by this appeals court in the civil context for Donald Trump. And it mentions that office seeker, office holder distinction. So that wasn't lost on these judges. Dominico, you have some hot off the presses, brand new polling data related to

public views on this immunity question. And of course, the law is not really subject to public opinion. But is this decision in line with the views of the American people? You know, given that this was going through the court, we asked this last week of people and in an NPR PBS NewsHour Marist poll, two thirds of people said that no, a president should not have immunity from actions taken while they were president. Now, the difference here, though, is Republicans. Two thirds of Republicans say yes, that a president should have immunity for actions taken as president. 91% of Democrats say no, two thirds of independents say no, but we're living in very different realities, as these numbers certainly show. And of course, the Trump campaign put out a statement this

afternoon saying, you know, if this appeals court ruling stands, anytime a sitting president leaves office, immediately they're going to be indicted by the opposite party. This is going to usher in a wave of criminal repercussions and tit for tat. I think it's too soon to argue that, in part because the former president, of course, is the first to ever face federal criminal charges or any criminal charges, for that matter. And that is very much in line with an argument that the former president has been making. I attended a rally in New Hampshire where he argued, well, you know, maybe World War II wouldn't have been ended if there was a fear of prosecution after leaving office. I mean, he takes it to the

extreme. Of course, it supposes two things here, that he's being indicted by the opposite party, which he is not. He's being indicted by prosecutors in the Justice Department. And it also supposes that a president would always commit crimes while they're president. I mean, sure, you could be subject to, you know, violations of the law or penalties of that if you commit crimes, but not if you don't. So, Carrie, talk to us a bit more about the tone of this decision, the language used by this three-judge panel, what you see from that. Yeah, first, I want to remind you who these judges are, right? Please. One is Florence Pan.

She was an appointee of President Biden. Another is Michelle Childs, another Biden appointee, but who came on the strong recommendation of Republican Senator Lindsey Graham of South Carolina, a very strong recommendation. And the third is Karen Henderson, who's been on the bench since the George H.W. Bush administration, who's a fairly conservative judge and, in fact, had sided with former President Trump over the years on certain issues. And yet they spoke today with a unified voice and balances and separation of powers in our government. And they also addressed head on this argument by former President Trump that, you know, it could chill the behavior of future presidents to be exposed to criminal liability. They said, in fact, this idea of federal criminal liability moving forward might serve as a structural benefit to deter possible abuses of power and criminal behavior. And another thing that I found striking

in this opinion relates to an argument Trump was making about the idea that language in the Constitution and by the framers didn't say that presidents did not have criminal immunity. That's a double negative. A double negative. And in fact, the judges called it out today. They said that's a red flag. The idea Trump's relying on a negative interpretation or implication is a real red flag. They said the framers knew how to grant immunity when they wanted to, and they did not. OK, we're going to pause for a quick break and we will have much more in a moment. And we're back. And Carrie, the appeals court gave former President Trump's legal team until next week to file an emergency stay request with the U.S. Supreme Court, which is a pretty short timeline.

So what are the possibilities of what happens next? A short timeline and one that the special counsel had asked for, in part to limit Trump's ability to engage in further delay strategies. We know Trump has said he's going to appeal. And the possibilities are the court at this stage would need five votes in order to issue a stay. Five votes is a fair number of votes. It's not clear that they have those votes. We'll find out next week. The court could issue the stay and decide to hear the case and schedule a special time for it to be heard. But we know they're kind of busy and normally they end in June, but this is kind of an important question. Or they could decide not to hear this case at this point. This is a unanimous decision

from what appears to be a politically mixed panel. And they could decide we to hear this case at this point. This is a unanimous decision from what appears to be a politically mixed panel. And they could decide we can hear this later or not at all. Yeah. And this trial was all on every one of our calendars for starting the day before Super Tuesday in early March. But with all this legal wrangling, it has been put on hold, at least for now. So what is your sense of what the timeline could look like? You know, Judge Chutkan, Tanya Chutkan, the district court judge, has some other things going on in April. She's also said she wants to give Trump's lawyers a full seven months to prepare. And that clock stopped in December. But depending on what the Supreme Court does here and how quickly they do it, it's possible this case could actually go to trial in late spring or the summer, which could be complicated for Trump politically, given the

convention coming up in July. Well, I mean, that timing is not great for Trump, if you think about the fact that we're making this pivot to the general election, and he's viewed very differently by general election voters. Certainly, in the poll that we referenced earlier in the NPR-PBS NewsHour Marist poll, two-thirds of Republicans said that they think that a president should have immunity. OK, but that's not the case for general election voters when you include Democrats and independents. And two-thirds of independents say that he should not have immunity. So, you know, this is a very different group of voters that he's going to be dealing with. And the stakes only get higher and higher here, especially if a trial goes on and there potentially is a conviction.

Domenico, I realize that this is a little bit of stating the obvious, but I would like you to help us here. Why is Trump and his legal team working so hard to delay these proceedings? Well, November's the election. They want to be able to push this off. I mean, if he can be able to at least get this into 2025, if he were to win the presidency and be sworn in in late January, then at least the federal cases, you know, people suspect that he would try to put his thumb on the scale and try to quash these investigations and make these cases go away. A little tougher with the state cases in Georgia and New York, but those are two biggies if he can get rid of the federal investigations. He might even be preparing to argue, as his lawyer in Georgia has, that if he returns to the White House, he's going to be too busy to be bothered with state-level criminal cases, and they should wait until 2029 when he leaves office. Well, more to come on that. The U.S. Supreme Court, as you said, Carrie, is quite busy, including later this week hearing arguments in another Trump-related case about whether he should be barred from the ballot in certain states because of his shook up the political and legal world by declaring that Trump was disqualified from the Republican primary ballot in that state. And it's having some consequences of repercussions among many other states as well. the kinds of questions and hypotheticals these justices throw out, whether they really want to get into the issue of whether Trump did or did not engage in insurrection on and before and after

January 6, 2021, and whether they're looking for some kind of off-ramp to avoid getting into that whole issue altogether. Obviously, it's a very politically fraught idea to disqualify the GOP frontrunner from the ballot in one state, let alone multiple states. And the justices may want to shy away from that. There are some off ramps they could consider, including whether Trump should be considered an officer of the United States as a former president and whether Congress would need to pass a law first in order to disqualify him. Of course, this whole issue revolves around part of the 14th Amendment that passed after the Civil War to try to keep Confederates out of office. But it's been really little used for 150 years. All right. We are going to leave it there for today. But Carrie,

you will be back on the pod on Thursday to talk us through how those Supreme Court arguments go in the Trump ballot access case. Looking forward to it. I'm Tamara Keith. I cover the White House. I'm Carrie Johnson. I cover the Justice Department. And I'm Domenico Montanaro, senior political editor and correspondent. And thank you for listening to the NPR Politics Podcast.