The NPR Politics Podcast - The Argument For Presidential Blanket Immunity

Episode Date: January 10, 2024

Former President Trump's attorneys appeared at the DC Circuit Court of Appeals to argue Trump should have blanket immunity for actions he took while in office related to the January 6th insurrection. We discuss the opposing arguments, the judge's questions and what's next for this case. This episode: senior White House correspondent Tamara Keith, national justice correspondent Carrie Johnson, and national political correspondent Mara Liasson.The podcast is produced by Jeongyoon Han, Casey Morell & Kelli Wessinger. Our editor is Erica Morrison. Our executive producer is Muthoni Muturi.Unlock access to this and other bonus content by supporting The NPR Politics Podcast+. Sign up via Apple Podcasts or at plus.npr.org. 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

Hi, it's Davis in Lincoln, Nebraska. It's almost midnight right now and I'm walking to work to start my shift as an Amtrak locomotive engineer. Wow, that'll work. The rest of the crew and I will be working throughout the night while our 200 passengers get some sleep waiting for our arrival into Denver tomorrow morning. This podcast was recorded at... 1.06 p.m. on Wednesday, January 10th. Things will be different by the time you hear this, but I'll still be out riding the rails. Enjoy the show. So first I have to say, great name, Davis. That is my son's name.

But also, getting the trains moving. Yeah, thank you for your service. Yes, that's for sure. 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 House. I'm Keri Johnson. I cover the Justice Department. And I'm Mara Liason, national political correspondent. Courts are going to have a major role in this election because the leading Republican candidate, former President Donald Trump, is being prosecuted in four different jurisdictions and fighting it all the way. Which brings us to this week when he showed up at the D.C. Circuit Court of Appeals. As his attorneys argued argued he should have blanket immunity for actions he took while in office related to the January 6th insurrection.

Carrie, you were at the courthouse. The hearing before a three judge panel lasted just over an hour. What were Trump's lawyers arguing and also like how was it received? Yeah, hard to summarize, but I'm going to try to keep to the top lines here. First, Trump's lawyers argued that because the Supreme Court has recognized that presidents have some kind of civil immunity from money damages for actions they take while they're in the White House, that that should extend to the criminal prosecution arena. And secondly, they pointed a part of the Constitution that deals with impeachment. And they talk about the idea that that language in the Constitution talks about what happens after somebody is convicted by the Senate and impeached. And then they reason that

because of the way that language in the Constitution is written, in order to be criminally prosecuted, a president would first have to be impeached and convicted by the U.S. Senate. Otherwise, they cannot be prosecuted for acts they take while they're in office. So if you take this argument to its logical conclusion, you end up in a pretty rough place. And there was a judge who did just that. Yes, Judge Florence Pan, who's a relatively new appointee to the court from the Biden White House, basically started asking, well, what if a president decided to sell pardons? What if a president decided to sell military secrets? And then her hypotheticals took an even more dire approach. Could a president order SEAL Team 6 to assassinate a political rival?

That's an official act in order to SEAL Team 6 to assassinate a political rival? That's an official act, an order to SEAL Team 6? He would have to be and would speedily be impeached and convicted before the criminal prosecution. But if he weren't, there would be no criminal prosecution, no criminal liability for that? Chief Justice's opinion in order against Mackleson and our Constitutional Commission and the plain language of the impeachment judgment clause all clearly presuppose that what the founders were concerned about was not. I asked you a yes or yes or no question. Could a president who ordered SEAL Team 6 to assassinate a political rival who was not impeached? Would he be subject to criminal prosecution? If he were impeached and convicted

first. So your answer is no? My answer is qualified, yes. But what if he did it on the last day in office? Then under the theory that former President Trump's lawyers have advanced, there wouldn't be enough time for impeachment and conviction by the Senate, and the former president would get off scot-free. So, Carrie, are the Trump lawyers saying that if 34 members of the Senate decide not to convict a president, that is a constitutional pronouncement? In other words, that gives the president complete immunity? 34 senators now take the role of the Supreme Court. They are the final arbiters of this. Is that what they're arguing? And this is a political process, to be clear. 34 senators because two-thirds of the Senate has to vote to convict in order for there to be a conviction in an impeachment trial. And so 34 could foil that. And they have repeatedly throughout American history. Impeachment is a political process, not a legal process, as at least as far as we thought we knew it. They're arguing something

different. Well, they're arguing that impeachment and conviction by the Senate amounts to a prerequisite for any kind of criminal liability for a former president, for actions that person took while they were serving as president. And you heard Judge Pan try to press this lawyer again and again. Your parents, when somebody says this is a yes or no question and you don't answer the question yes or no, you know you're kind of in bad shape. I have a question about Trump's strategy here. I get that he wants to stay out of jail, but he also wants to delay. He's going to appeal every single ruling the whole way down the road in all these cases. Is that correct? I think that's exactly right. He's going to take advantage of whatever

the legal process allows him to do to run out the clock. Because? Because if these cases are not adjudicated by the time of the election and he regains the White House, he can either direct the Justice Department to drop the federal cases against him, try to issue a self-pardon, and then postpone the state cases in both Georgia and New York until potentially 2029 when he would leave office. And that's that a couple of the judges on this panel pointed out that Trump's attorneys in the impeachment made contradictory arguments. Remember, when Trump was impeached, they said, leave this for the criminal justice process. Mitch McConnell famously among them said, you know, we have a way to deal with this. There's a criminal criminal justice system. Well, now his lawyers are saying he's exempt from that. That's right. Yeah.

So I do want to ask you about the Justice Department side of this. How did the Justice Department lawyers respond to this pretty wild legal theory? Arguing for the special counsel team is a guy named James Pierce, who's been in the Justice Department for a long time. Here's what he had to say. 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.

Yeah. And, you know, one of the judges, Karen Henderson, basically said, I'm worried that when we rule here, opening the floodgates to basically have criminal justice system actors harassing future presidents of the United States and former presidents. And what the special counsel lawyer, James Pierce, said was, we've been around a couple hundred years, and this is the first time we've had a former president charged with crimes. And it's not just the special counsel lawyers making that determination. Grand juries and ultimately a trial judge potentially. And then this very appeals court would be a check on the process. Mara, let's talk about politics for a second. Trump's lawyers are also arguing that this January 6th case is a move by the Biden administration to keep his opponent or his likely

opponent from winning or even competing. And Trump is certainly saying that at rallies, too. Yes, he's definitely saying it at rallies. He's saying it as a response to Biden's charge that Trump is undermining American democracy. He says, no, no, no. Biden is the one who's the threat to democracy because he's weaponized the Justice Department and it's election interference to to indict me and try to hurt my chances of winning. This is Trump's modus operandi. He usually accuses his opponents of whatever he's accused of himself.

But Trump is operating in two different venues, the courts, where he's trying to delay and do the things Kerry just described, and the court of public opinion, where at least in the universe of the Republican primaries, which is where we are right now, he is winning. And he has convinced majorities of Republicans that these cases against him are persecutions, they're witch hunts, that he was the rightful winner of 2020 election. So this is, he's using it to political advantage. And, you know, I wanted to point out, maybe Kerry can explain this. He did not have to show up in the courtroom the other day. This is a, he is using the court as a political platform, almost like a place to hold a campaign rally. He wasn't required to go. And in fact, one of the big questions for many of the camp of reporters who got there before dawn

yesterday morning to make sure we got seats, was, is he going to act in an unusual way inside this federal courthouse? And the answer was no. You know, the only thing the guy said basically was to ask his lawyers where he should sit in the appeals court room. And he saved his fire until after he left the courthouse. But while I was sitting there after the argument, I kept getting emails and they were emails, fundraising emails from Donald Trump's campaign. Carrie, can we please do an instant fact check? Is President Biden involved in the January 6th prosecution? He's not involved in the Donald Trump prosecution as far as we're aware. And you don't have to take my word for it.

The Attorney General Merrick Garland has been asked that question under oath in congressional testimony. And Garland has said that Biden has never called him, never written him, never talked to him at all about the prosecution of Trump. And I will say the Biden campaign doesn't talk about this, but they will hit Donald Trump on lots of things, everything. The thing they will not go after him on, they won't bring it up. They are not talking about it. They are not talking about his criminal problems. We are in such an unprecedented moment where two equities are competing. One is no one is above the law. And the second one is usually administrations don't prosecute the president of the former administration like banana republics do. Now, you could argue that

Donald Trump has forced the hand of Merrick Garland by flagrantly violating the Constitution. But this is really a problem. I mean, to say that Biden doesn't talk about it, well, bully for him. But the fact is his administration, his attorney general, even if there is a certain amount of independence to the Justice Department, is prosecuting the guy who's running against him and the former president. This is such a stress test on democratic institutions. There's no choice here that's not bad for American democracy, no matter which way you go. I think that's exactly right. This is a deeply uncomfortable moment. Nobody inside the Justice Department, I don't think, wanted to be here. And certainly people strategizing inside the White House didn't either. But, you know, I think they would argue that when the FBI nicely asked Donald Trump to return documents he had at

Mar-a-Lago and he refused a whole bunch of times, what else were they supposed to do? And again, with respect to January 6th, they've arrested 1,200 people who entered the Capitol grounds on January 6th. And if indeed that riot was the culmination of overlapping conspiracies to overturn the last election, I think prosecutors would say you have to charge all the responsible parties here. But one thing I did want to address is, this is exactly, Mara, part of the argument that Donald Trump's lawyer, John Sauer, was making yesterday. He said, listen, we could go back and potentially charge George W. Bush for giving false information to Congress about the Iraq war. You could potentially charge former President Barack Obama about

dropping a drone on an American citizen overseas, an accused terrorist. Or he said you could even potentially charge the current president, Joe Biden, with unspecified immigration-related matters in Texas. And a Texas jury would hear that case. So there is a tit-for-tat that's being set up here. That's not the way our system is supposed to work. No. And what he's really saying is presidents are above the law. That's what he's saying. And every judge yesterday who heard this case seemed deeply uncomfortable with that conclusion. We are going to pause here. And after the break, former President Trump's response to the hearing. And we're back. And not surprisingly, former President Donald Trump had some thoughts he wanted to share after the hearing.

He appeared at the Waldorf Astoria, the hotel that used to have his name on it here in Washington. And I feel that as a president, you have to have immunity. Very simple. And if you don't, as an example, if this case were lost on immunity and I did nothing wrong, absolutely nothing wrong. I'm working for the country. Kerry, this is of a piece with the arguments Trump is making at campaign rallies. And in a recent post on Truth Social, he said, quote, Joe would be ripe for indictment by weaponizing the DOJ against his political opponent, me, Joe has opened a giant Pandora's box. And I know we say this a lot, but this is not normal stuff.

Presidential candidates don't normally threaten their opponents with indictment, right? But this is a guy whose first campaign featured chants of lock her up with respect to his then opponent, Hillary Clinton. So I don't think we should be too shocked. True. And then at the end of his statement at the Waldorf, a reporter shouted a question about whether he would urge his supporters to refrain from violence, and he did not respond. This is a matter of extreme concern to senior officials at the FBI and the Justice Department. We've had any number of threats against election workers, judges hearing cases that involve former President Donald Trump, law enforcement officials and others in recent

weeks. And the Attorney General Merrick Garland has been on record saying it's one of his highest priorities. Really concerning to be given an opportunity to denounce violence and not taking it. Trump's trial has been working for him in a way. It's become a centerpiece of his campaign. It's really juicing his fundraising, as far as we can tell. People are wearing the mugshot on shirts and drinking coffee out of mugs with the mugshot. But this is a primary. And then there's a general election where, you know, it isn't just Republicans who are voting.

So is there a point in time where this doesn't work in his favor, where it interferes with his ability to campaign or where it becomes just too much baggage? Well, that's the question. And we don't know the answer because we've never been in a situation like this. Certainly, the Biden campaign is hoping for that. There is some polling data. People are asked, well, what if he's convicted? Would you still support him? And there is a drop off of support. But that's a very hypothetical thing because we've never had a president who was convicted in the midst of a presidential campaign. So we just don't know. Will the cases, possible convictions, just energize his supporters even more? Even if they don't expand the people who are going to vote for him, they make the support among his base even more intense. We know that this election is going to be a turnout election, not a persuasion election.

And Republicans already are much more energized about the election than Democrats are. So we just don't know. Can we just pause for a moment on the fact that this is a very unusual election year? You know, in the year 2000, the Supreme Court weighed in after the election and essentially decided the election. And now we have a situation where the Supreme Court is going to get involved and is going to have to make a decision that will affect an election that is already underway. We're on a collision course here.

We are, and there's really no way out of it for the court, right? There are three buckets of issues the court may be required to decide. And one, they've already taken. This is the question of whether Colorado and the Colorado Supreme Court were proper in disqualifying Trump from the primary ballot there because of the insurrection clause in the Constitution. And so the court is going to hear that argument on February 8th. And if they decide that the Colorado Supreme Court was correct, Trump is off the ballot in the

state of Colorado, at least at the primary level. And there are dozens of other cases around the country that could be affected, too, depending on the way this court rules. So that they got to decide. And everybody says they've got to decide it because otherwise it's going to be chaos. Right. And on this immunity argument that was being heard this week, they sent it back to the lower court. But the expectation is that it's eventually coming back to them. They declined to hear the immunity dispute at a rapid pace and leapfrogged the appeals court. So the appeals court handled it this week. But that issue, if Trump loses, as

seems likely given the judge's reception yesterday, if Trump loses, he could seek to take that issue all the way up to the Supreme Court. There's a school of thought among law professors that maybe the court washes its hands of the issue and doesn't want to take it at all, which could mean that Trump actually does face trial in D.C. sometime this year. Just not clear whether they're going to do that. And then the third issue the court has already agreed to decide is whether this charge of obstruction of an official proceeding that the Justice Department has used against like 300 rioters who were at the Capitol on January 6th is a legit charge to use in that context. And Trump has charged with two related offenses there. So depending on how the court decides that case, it could affect half of the felony counts Trump has

charged with in D.C. This isn't the first time that the Supreme Court has gotten involved in an election. I mean, let's just remember Bush versus Gore. And that was an extraordinary moment. And the Supreme Court was not shy about putting their finger on the scale there. We'll see if this court, which is the most conservative court we've had in our lifetimes, what they're willing to do. What they're willing to do in the context of plunging public opinion and public confidence in the idea that they're deciding cases based on law and not the results they want to see. Right. We've had conservative courts in the past. This court is seen as partisan, not just conservative. Let's 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 Mara Liason, national political correspondent. And thank you for listening to the NPR Politics Podcast.