Trump's Trials - Immune or not immune, that is the question

Episode Date: January 13, 2024

This week on Trump's Trials, host Scott Detrow and Domenico Montanaro are joined by New York University law professor Melissa Murray.This week's focus: The DC Circuit Court of Appeals heard oral arguments on former president Donald Trump's expansive view of presidential immunity. The three-judge panel seemed skeptical at times with the extensive scope of Trump's legal team argument — that the president could even order a political assassination and be immune from criminal prosecution so long as he wasn't convicted in an impeachment hearing. Plus we heard closing arguments in the New York civil fraud case. Topics include: - Scope of presidential immunity - Strength of Trump team's arguments - Possible appeals and timelines - New York civil fraud case- Georgia election interference case Follow the show on Apple Podcasts or Spotify for new episodes each Saturday.Sign up for sponsor-free episodes and support NPR's political journalism at plus.npr.org/trumpstrials.Email the show at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Former President Donald Trump's view of presidential immunity goes to extremes. From NPR, this is Trump's Trials. I'm Scott Detrow. This is a persecution. He actually just stormed out of the courtroom. Innocent until proven guilty in a court of law. This week, we heard the full extent of Trump's vision of presidential immunity. Pressed by federal judges, his lawyers argued that ordering assassinations, selling pardons, or selling state secrets, all sorts of hypothetical presidential actions could

be shielded from criminal prosecution under their view of the law. But the judges seemed pretty skeptical. And their decision could make or break what's set to be the first of Trump's criminal cases to actually go to trial. We'll talk about that. We also heard closing arguments in the New York civil fraud trial this week. So we'll get into that. And all of this is happening on the eve of the Iowa caucuses. A lot to discuss here as always. And I am joined again by my colleague, senior political editor and correspondent, Domenico Montanaro. Hey, Domenico. Great to be here, Scott. This time we're talking not in Iowa. Usually we are both in Iowa this time of the year. I'm thankful I'm not this time around, given that the high on Monday will be negative four, supposedly.

You know, that's not the best. All right, yeah, a lot warmer here in D.C. As we bask in that, catch us up on all of the big moments from this week in Trump's legal battle. Well, we're starting to get a real-time reaction from the two spheres that really matter to Trump. You know, we're expecting judges to respond to his immunity arguments, and Americans are going to see how much these 91 indictments against Trump matter to Republican voters as they decide who they want their nominee to be. You know, in the final dash to the Iowa caucuses, Trump spent two days in courtrooms, even though he wasn't required to be there, rather than hitting what's currently

a snowy campaign trail. It shows how important it is to his narrative to portray himself as being politically targeted, a victim, despite there being no evidence really to support that. Meanwhile, no matter how the appeals court rules, Trump's lawyers will try anything to delay these trials because his goal right now is political, to sew up the Republican nomination before any of these four criminal cases face a jury. All right, we're going to take a quick break. We will come back. We will get into all of that along with lawyer and law professor Melissa Murray. Stick around. This message comes from NPR sponsor, SAP Concur. Global Head of Sales, Ryan Demarey, shares how SAP Concur solutions can help solve specific problems and support long-term growth.

We have a travel booking tool, we have an expense tool, and we have a vendor invoice tool. We very much so take the approach of we want to meet businesses where they're at. You can start with a piece of it and grow. Maybe you have a very specific business problem that you need to solve for today before you can move forward. Maybe you only have 10 expense claims. You're going to try this out as a proof of concept for a division of your team. That's really what we focus on with customers as they begin their relationship with Concur. It's what do you need to solve for today?

And how can we show you immediate value by solving that problem and then grow with you over time? Visit Concur.com to learn more. And we are joined once again by Melissa Murray, a law professor at NYU and the co-author of the upcoming book, The Trump Indictments. Melissa, it is great to have you back on the show. Thanks for having me. And especially glad you're here this week because I have been thinking a lot about just how far

Trump's legal team took their immunity argument this week. And I, along with many others, I'm really thinking about this one moment in particular. This is Judge Florence Pan questioning Trump attorney John Sauer. 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. What did you make of that moment?

I mean, it was such an absolutist perspective. One, I was absolutely astonished that Judge Pan had such specificity. Seal Team Six was, you know, really, that was in the vault for sure, a deep cut, if you will. But more particularly, I think she was making a really important point, and I think it was important that she did it with a hypothetical that the public could understand, that the idea that you would allow a president to be immune from prosecution if he used the accoutrements of his office to assassinate a political rival, like, you know, we're no longer in a democracy if that happens. And, you know, I think she made that point very succinctly and very powerfully. And to the extent this was a public hearing that everyone could live stream, she made it to the entire country. So famous conservative anti-Trump lawyer, and I'll also say Twitter personality George Conway wrote in The Atlantic this week, sometimes during appellate arguments,

there's a moment when you know exactly how the court will come out. And this was one. Do you agree with that? I think so. I mean, I'm 100% sure that this will be a three to zero decision against Donald Trump. I think the real question is how this panel is going to slice this. I mean, there are a lot of different ways they could approach this. You know, one, they could, you know, determine that Donald Trump is not entitled to absolute immunity, which seemed to have been the argument that his lawyer was making. But, you know, maybe they send it back to Judge Chutkan to decide, is there some kind of qualified immunity? If so, what sorts of activities fall into the scope of his duties as president and what activities fall outside of it. That's something that Judge Chetkin didn't decide in her initial ruling below because she made the determination that because he was no longer president,

he was not entitled to presidential immunity. So that's one way they could do it. They could decide against him entirely, like, you know, there's no immunity here, and then just send this to the Supreme Court. Either way, this is still all, I think, a tactical victory for Donald Trump, because if it gets sent back to Judge Chutkan, that's more time. It can then go back to the D.C. Circuit. The D.C. Circuit can again hear all our arguments on what Judge Chutkan did below, and then they can render a decision, and Donald Trump can ask for an en banc hearing of the entire D.C. Circuit. So that could be more time. Now they could issue a decision. They could issue it against Donald Trump. He could ask for a rehearing en banc. That would take some time to

decide whether the entire D.C. Circuit is going to hear it. And then that decision could be appealed to the Supreme Court, which would then have to make a decision about whether or not to hear it. And I think ultimately, based on this one hypothetical from Judge Pan, I think it is absolutely imperative that the Supreme Court has to weigh in because the question is so profound. But all of this is really more a question of timing at this point. Right. And just a reminder, there were two different lanes of arguments here. One, things he does as president he has immunity for. And two, because he was impeached and acquitted, therefore there's no criminal path forward. I mean, Melissa, that is kind of a, there is a clear sentence about this in the Constitution

and they're making this argument flipped based on what's not there. How should we think about that? I think the immunity argument was dumb, dumb, dumb. And I think it was made clear at oral argument how dumb it was. There was this really unfortunate moment for Donald Trump's legal team where they were presented with earlier arguments made during the impeachment, the second impeachment hearing, about whether or not Donald Trump should be impeached or whether he should stand trial. And they had his other lawyer talking about criminal like, you know, criminal prosecution is the way to hold this person accountable now that he's no longer president. And they had to sort of say, you know, we were making arguments that were convenient in the moment. They don't necessarily apply now.

because we know that there are lots of public officials who could be impeached and aren't, but are nonetheless held accountable through criminal prosecutions. There's also Richard Dixon. He was impeached. He was never convicted by the Senate. But nonetheless, Gerald Ford issued a pardon for him in order to insulate him from actual criminal liability going forward. That wouldn't have been necessary if the fact of his lack of conviction was dispositive. And Domenico, I think there's like, clearly, Melissa, you and everybody expert looking at this think this is pretty clear cut, but I just want to really underscore those arguments in the moment of impeachment. Many Republicans voted him guilty. Mitch McConnell voted not guilty, but gave this big speech afterwards, trying to have it both ways. And this was an argument that McConnell and many other Republican senators made at the time for why they voted not guilty.

President Trump is still liable for everything he did while he was in office. We have a criminal justice system in this country. We have civil litigation and former presidents are not immune from being accountable by either one. Well, I mean, that's like taking into account that like anybody in the Republican Party or Democratic Party cares what Mitch McConnell has to say, right? Well, in the moment they did, though, like in the moment, if Mitch McConnell had voted guilty, I think it's a pretty good argument that enough other Republicans vote guilty behind him to convict him. Well, maybe. I just think that there's been this sort of war between the sort of McConnell-led quote-unquote establishment since at least 2010 with the rise of the Tea Party and the sort of Tea Party types who gave birth to the Trumpism that really has taken over the party. And I think

that the fact that McConnell, who used to be such a strong Republican leader in the Senate, has really been sidelined by a lot of what we've seen with whether it's the legal talk or political talk that his influence has waned so much is really something that's been huge over the last few years. Most of us thought that politically Trump would gain strength after January 6th. But that's why he's showing up in courtrooms now instead of being on the campaign trail in a place like Iowa. Because doing that, making that political argument is what helps him raise money and has only helped him with the Republican base. Right. Trump attended those hearings in person in the federal court in D.C. this week. Then he was back in the New York courtroom for the closing arguments of a civil case. He, in fact, even tried to speak. He did speak. The judge, again, urged him to stick to the topic at hand, not give political tirades. Trump gave political tirades. The judge cut him off. But clearly, he sees the political advantage here. But, Domenico, that gets to a broader question. We have talked so many times about how Trump's opponents in the primary who are trailing him badly have either defended him

when it comes to these legal cases or not used these legal cases as attacks against him. What was the political response to that broad-based immunity argument that he could order assassinations hypothetically? Yeah. In a debate with Nikki Haley and Ron DeSantis that aired on CNN this week, we heard them asked about that sort of at the tail end of the debate, and you'll hear here Haley and then DeSantis. That's absolutely ridiculous.

I mean, we need to use some common sense here. You can't go and kill a political rival and then claim, you know, immunity. Obviously, that attorney gave the case away on that explanation. I think the D.C. Circuit is going to rule against Donald Trump on that issue. So there you go, Melissa, you and Ron DeSantis, another lawyer, sharing the same agreement. Yeah. I'm going to go rethink all of my choices now. Melissa, I do want to go back to something you said before about the timeline here,

because as Domenico pointed out, Trump's team wants to delay this as much as possible. They want to avoid a criminal trial before the presidential election. We have seen so much polling data showing that a guilty verdict would make voters rethink Trump in a way that these charges seem not to as of yet. that these charges seem not to as of yet. What, again, like you just laid out four different ways this could go. But if you had to guess right now when this alleged March trial would actually happen based on everything's happened so far, do you have a sense or what do we need to know before we have a sense when we're talking about here? I think we are getting farther away from a March 4th start date for that January 6th trial, the D.C. trial. I don't think it means that we couldn't have a trial on the January 6th indictment before the election. It just means that it's going to be delayed. It's not going to be in March. I think that seems pretty clear. But, you know, a lot depends on how quickly the D.C. Circuit returns its decision on

this case. From there, you know, it's really the ball is in Donald Trump's court. And, you know, there are other cases where Donald Trump is subject to criminal liability or criminal exposure. There's Fannie Willis's January 6th trial that is scheduled to begin in August, or at least she would like it to begin in August down in Georgia. There's the Mar-a-Lago Documents trial in the Southern District of Florida. And then there's the Alvin Bragg Hush Money trial in the Manhattan DA's office. All of these could also go through. But again, I'm sure all of the judges in each of those respective matters are looking at what's happening in this immunity trial. Because if one trial doesn't go in March, then maybe that opens

up some room for another trial to slip in. So Donald Trump is basically juggling criminal calendars at this point. You mentioned the Georgia case. There were some developments in that case this week. So let's shift to that. The Atlanta Journal-Constitution and others reported on a legal filing from one of Trump's co-defendants in that case, making claims, and important to say here, making claims without proof that Fulton County DA Fonny Willis had engaged in an improper relationship with the special counsel that she had hired to handle the case. At this point, Willis has not responded to these claims. And again, they're being made without proof. But Domenico, here's why we're talking about this. We saw Trump and his allies immediately return

to a playbook they have used so much over the years, taking these nebulous claims, immediately weaponizing them, immediately shooting them all over social media and at political rallies and using them to cast clouds over the entire investigation. Yeah, it becomes a conservative truth at that point. And the media is often slow on this because our job is to independently verify the things that we hear. And if it's nearly impossible to do that, then we don't report on them. But then that makes us look like we're

biased in the eyes of conservatives when that's not the truth. The truth is we're trying to be diligent about the job that we do, but it doesn't matter, right? At that point, Trump and his allies have moved on to something else to try to muddy the waters with. Melissa, what did you make about this report and the fallout from it? And again, not proven at this point in time, but to you, do these questions raise any broader concerns about the case itself? The optics are terrible for DA Willis, but the fact that she may or may not be having a relationship with someone who is in her employ does not diminish the strength of the allegations

stated in the indictment against Donald Trump and any of those co-defendants. I think that needs to be very clear. Like, yes, optically and in terms of whether or not, you know, there has been some kind of inappropriate use of Georgia's funds in hiring this special prosecutor, that doesn't diminish the underlying substance of these charges. Several guilty pleas in this case already, we should point out. Already, yes. Yeah, I mean, this falls clearly under the D bucket of distract when it comes to Trump's case. Okay, so Melissa, last of the winding multiple different cases we're following

that happened this week, we heard the closing arguments in the New York civil fraud trial. And again, already the judge has ruled against Trump in this case. This trial has just been about the penalty and the consequences of that. One of Trump's attorneys argued again that there was no real world impact from the financial statements in question. There was no victim here. world impact from the financial statements in question. There was no victim here. How true is that? And how much does that actually matter? I think that's Donald Trump's argument. I don't know that it's actually true. I mean, you know, ordinary people do have to be forthcoming and have to be truthful. And it seems like, you know, there is a real hit on the system and ordinary folks who just have to do things the normal way when someone can overstate or inflate the nature of his assets, get favorable deals,

and then continue to amass and consolidate wealth. So it does seem more abstract, but it is a very real consequence. And I think that is something Judge Engeron is thinking about. But it is a very real consequence. And I think that is something Judge Angeron is thinking about. But again, I will say, I think whatever happens in this trial, this last day of the civil fraud trial was a win for Donald Trump because he got to make his case in the court of public opinion. And he said over and over again that he and not the people of New York was a true victim here. As I try to process everything that happened this week, I feel like, Melissa, you have said this several times throughout the conversation, that in both of the cases at the heart of things this week, there is a clear legal setback for Trump or clear indications of a clear-cut legal setback to come, and yet he still benefits politically, right, especially in the short term, especially as we go into the Iowa caucuses.

He has managed to make himself, in the eye of his supporters, the victim, the person who's being, you know, trod upon by the unfair legal system or whatever he frames with that week over and over again, even as the legal proceedings move forward, and also winning on delaying things. It's just remarkable how that keeps happening. Well, it's more than remarkable. I think it's more than just, you know, he's winning in the court of public opinion. For his supporters, he's made it so that law doesn't matter. And if law doesn't matter for that group of people, however large it is, who want Donald Trump back in the White House, then for them at least, Donald Trump really and truly is above the law. Yeah. I mean, Donald Trump is winning in the court of opinion with

Republicans, but overall he's not. I mean, we still have a majority of independents and Democrats who will tell pollsters that they think he committed a crime. Okay. Like this is very different. And those are the voters who will determine an election. And all of that changed from before and after the January 6th hearings that we saw televised and people were tuning into that. And I think that we're in this weird place where you have Republicans believing almost everything that Donald Trump says, and then this whole other universe of people who are going to weigh in in the general election who don't. And that broader universe will matter a lot more month plus from now,

once we're through this initial primary phase. Maybe three months from now. Three months from now. Yeah, okay. We'll see. Melissa Murray, NYU law professor, co-author of the upcoming book, The Trump Indictments.

Great to have you back with us this week. Thank you. Also joined as always by NPR's Domenico Montanaro. Thanks, Domenico. Thank you. All right. So this was a big week. Next week is going to be big as well. And here, again, is a quick overview of all the things we'll be tracking. We could get a ruling from the Federal Appeals Court on this key immunity question. There will also be yet another civil case against Trump that goes to trial next

week as well. This is a second defamation case against Trump from E. Jean Carroll. Remember, Carroll claimed that Trump raped her in a department store in the 90s. She already won a civil case against Trump with a jury finding that he sexually abused and defamed her. Then Trump continued to attack Carroll in public, so she sued him again. Oh yeah, in case you forgot, it is also the Iowa caucuses next week, so we will see what voters think about all of this. It'll be our first indication. Keep an eye out on this feed. We will be bringing you updates throughout the week whenever key developments happen.

And of course, we'll be back with the Big Picture Roundup next Saturday. Thanks as always to our supporters who hear the show sponsor-free. If that's not you, it could be. Sign up at plus.npr.org or subscribe on our show page in Apple Podcasts. The show is produced by Tyler Bartlam and edited by Adam Rainey and Steve Drummond. Our technical director is Kwasi Lee. Our executive producers are Beth Donovan and Sammy Yenigan. Eric Maripoti is NPR's vice president of news programming. I'm Scott Detrow. Thanks for listening to Trump's Trials from NPR. Support for NPR and the following message come from SAP Concur,

a leading brand for integrated travel expense and invoice management solutions. With SAP Concur solutions, you'll be ready to take on whatever the market throws at you next. Learn more at Concur.com. Black perspectives haven't always been centered in the telling of America's story. Now, we're taking center stage. Introducing NPR's Black Stories, Black Truths, a collection of Black-led stories from NPR's podcasts. Search NPR Black Stories, Black Truths

wherever you get your podcasts. Did you kill Marlene Johnson? I think you're one of the first people to have actually asked. From WBUR and ZSP Media, this is Beyond All Repair, a new podcast about an unsolved murder that will leave you questioning everything. Listen and follow wherever you get your podcasts.