Trump's Trials - Trump's mixed week: a possible boost from one court and a setback from another

Episode Date: February 10, 2024

This week on Trump's Trials, host Scott Detrow and Domenico Montanaro are joined by former US attorney and deputy assistant attorney general Harry Litman.It was a big week in the Trump legal world. There was the decision on presidential immunity, spoiler alert - he doesn't have it. And then there were those Supreme Court oral arguments in the Colorado ballot case, where the justices seemed skeptical of an individual state being able to disqualify Trump from seeking office again. To cap off the week, President Biden was exonerated in a separate classified documents investigation, but the special prosecutor's report questioned the strength of Biden's memory. Topics include: - Immunity decision- Supreme Court oral arguments- How the immunity and Colorado cases intersect - Is Biden's document situation similar to Trump's- Predictions on future decisions and timeline 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

The U.S. Supreme Court seems wary of barring Donald Trump from the ballot. 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. On Thursday, the Supreme Court heard oral arguments in the Colorado ballot case at issue whether a state can disqualify Trump from running for the presidency again for his involvement in the January 6th insurrection.

As millions of Americans tuned into the audio of the hearings on TV, and of course on NPR, a lucky few were actually allowed to watch the proceedings in person. Probably the biggest thing I care about in terms of this particular part of all the things going on is that I think it's really important that the Supreme Court doesn't punt this. That's Rick Hall. He traveled all the way from Ohio and waited in line for almost 36 hours to watch history unfold in person.

Outside the court, anti-Trump protesters made their case to the media, who far outnumbered them. Someone who participated in insurrection should not be allowed to hold public office. And those protesters far outnumbered those who came out in support of Trump, like Kelly Walk. Their basis is insurrection, which he did not do, has not been found guilty of. I was at the lips listening to the entire speech? He said absolutely nothing that would even cause a riot. It's unconstitutional. Although her voice was in the minority outside the court,

it seems that a majority of the justices see it the same way. A seeming victory on one hand for Trump, but also this week a federal appeals court rejected his argument of presidential immunity, possibly clearing the way for the January 6th federal election interference case to proceed. Trump still has two days to file an appeal of that decision to the Supreme Court. A consequential week to be sure, and we will get into all of it with NPR's Domenico Montanaro and constitutional lawyer Harry Littman after we come back. This message comes from NPR sponsor SAP Concur. Global head of sales Ryan Demaree 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. This message comes from the Kresge Foundation. Established 100 years ago,

the Kresge Foundation works to expand equity and opportunity in cities across America. A century of impact, a future of opportunity. More at Kresge.org. We are back with senior political editor and correspondent Domenico Montanaro, as well as Harry Littman. He's a former U.S. attorney, deputy attorney general, and also clerked at the Supreme Court. And Harry, you are here in person. Thanks for being here. My pleasure. Yeah, I was actually in the courtroom along with everyone else sort of squeezed in. It definitely had the sort of nerd version of a big athletic event and the sort of electricity in the air. Good nerd version. Yeah. This is kind of the nerd version of a Trump trials analysis right here.

Yeah. It was very cozy. I guess that's right. Nerds are us. I'm proud. Okay. So this is probably the biggest week since we launched this podcast. We are going to get to the appeals court immunity ruling in a little bit. We're also going to touch on how that special counsel report on President Biden and classified documents and how that could affect the Trump documents case. But we obviously need to start at the Supreme Court. So, Harry, I'll start with you. Since you were in the room, how would you sum up how these arguments went? Well, they were very one-sided on the one hand,

which is everybody had the impression that it's going to be a victory and a lopsided victory in favor of forcing Trump back on the ballot, reversing Colorado. On the other hand, the three hours mainly consisted of the justices trying on different rationale. It wasn't clear what they were going to go for. There were six or seven that were sort of served up. And the one other thing I'd say as a sort of bottom line view, Scott, is the missing man there was largely Donald Trump and the missing text was largely Section 3. That is, there was a lot of focus on the consequences or on other things that the court has done. But there wasn't

a real concerted effort to say these words don't apply to him. He didn't engage in insurrection, et cetera. Dominico, it felt like a lot of the theme was, well, we can't give this much power to one state. I mean, what else stood out to you about this? Well, I just think it was a little ironic on some of the politics of this because we heard Justice Kavanaugh and Justice Roberts, for example, at different times. Even Elena Kagan sort of allude to politics, right?

Kavanaugh talking about you don't want to disenfranchise. What about this idea of democracy and disenfranchising people? And Kagan talking about, you know, basically giving power to one state. I mean, there's so many things there that I sort of want to unravel a little bit because this idea that you're disenfranchising people if you kick Donald Trump off the ballot because lots of people would have voted for him, that would kind of mean that the Section 3 of the 14th Amendment would apply to nobody ever, right? Because the whole point of this whole thing was so that you could keep people off the ballot after the Civil War who had engaged in what the Congress thought of as insurrection.

I mean, Harry, I've said this a few other podcasts, but I just keep coming back to the fact that so many of these cases, the defense seems to be like, well, you can't hold me accountable because then anybody could be held accountable for anything. Yeah. So that's Trump's argument for sure. And Roberts trotted it out saying, if we do this, will there not be a parade of horribles on the other side? But I really think Domenico hitsribles on the other side? But I

really think Domenico hits the nail on the head because the arguments there were about politics, were about consequences, and that's not what you normally think a court does. You think a court figures out the rationale and it leads to the result. I'm not saying they were wrong here. This is a case of sufficient magnitude that I don't see how they could have ignored all the Democratic consequences, especially if they assumed, as Kagan and others did, that if they affirmed, it wouldn't stop at Colorado. There was talk about, what about latent collateral estoppel? Don't worry, nobody needs to know what that is. But the idea is that the Colorado case would cascade into others. I'm not sure that's exactly right as a constitutional matter, but that was uppermost in their minds.

And when they go to conference, I think it will be uppermost in their minds. And this will be a really unusual case for this court, where you'll have seven, eight, nine justices of a like mind saying we need in good faith to express a rationale that the country will accept and that we can be as unanimous as possible. Were you surprised that Kagan and Jackson seem so sympathetic to the Trump team's arguments during arguments? You know, I wasn't. I'd written a lot about this case, and it did strike me as one that they just can't affirm. So and I also think of Kagan in particular and maybe Jackson, she's new as someone who's open to the institutional interest in the court, open to an argument, say, from the chief justice. We've got to think about the court here and not be splintered. There are other justices, Alito and Thomas, I would point to who don who aren't necessarily team players in quite that way.

And look, justices sometimes throw out hypotheticals and they don't exactly mean to decide a case based on what the hypothetical is. They're just sort of testing and prodding lawyers to see how smart they are on their feet and what argument they might come back with. This idea that Kagan throwing out that if one state does this or we rule for them, then another state would do it or why would you then bar somebody federally essentially? It's like there is a decentralized election process in this country. The states make the rules for who can be on those ballots and not. And so to be able to say, well, you know – Which is an argument that conservatives usually love to point to. So to say we're going to, if we do this here, then it could mean they shouldn't be allowed to affect essentially a federal election.

It's like the states already have power over federal elections because they're choosing people within their states and they have power over how they get on those ballots. Right. Nebraska and Maine allocate their electoral college votes by congressional district. Other states don't do that. There's several other examples. Man, he's good. You don't need me on this podcast. No, I really think you're- I wasn't in the room. I really think you're at the deep core of the case, which is a constitutional structure that gives states a lot of power and it's created messes in the recent past, the electoral college,

and yet the cultural, political, social fact, and this is the way Kagan put it, is we have a national election. Presidential candidates have been thrown off the ballot before, just not major ones. And it just completely chafed with our sense that it really is a national election, even though that's the constitutional structure. There was a lot of talk about state's power under Article 2 and the like, and those were the two deep principles that were really butting heads. Let's shift gears. Let's rewind just a few days in this jam-packed week. We get the ruling back on the federal appeals case, this key question of, does the

president of the United States have blanket immunity for whatever he or she does in office? This was an argument that Trump's team made with that extreme example of saying that a president could order an assassination of a political opponent. And if he or she isn't impeached, then it'd be okay. Impeached and convicted. Yeah, yeah. Impeached and convicted. Yeah, yeah. Impeached and convicted, right, because that was the other dynamic here. So we get a unanimous ruling, two Democrat-appointed judges, one Republican-appointed judge.

They issue a ruling together. Before we get into what happens next, what was most important to you, Harry, from that ruling? Because I thought it was a really clear-cut argument that, no, in fact, the president is not above the law in this country. We thought that that was going to be the result, but it was so comprehensive, methodical, covered all the bases, and in particular, really left no room. So much so that it's a real question whether the court will or need take the case. And it's something that Judge Tanya Chutkin, the judge overseeing the January 6th case, can now just go running with. We were wondering what took so long. The fact that they made it per curiam, very unusual. But basically, we're all in this together. Every word is from all three of us, I think,

was exactly what we were just talking about with the Supreme Court. They understood the stakes. They built a pretty hermetically sealed box that all three of them then signed. That was critical and I think really commendable. Dominico, a strongly awarded ruling like that, a unanimous ruling from Republican and Democratic appointees. Do you think there's a world where that affects the kind of broader political climate here, something that's that strongly worded and saying, no, you do need to be held accountable? Well, maybe if the news cycle didn't move as fast as it did and the fact that that was the biggest story of the week like two days ago. And now that is definitely not the thing people are talking about or focused on.

And who knows what other million things are going to be coming across what we look at over the next 260 plus days before Election Day. So, I mean, I think it's a blow to Trump. to Trump, certainly. I think the most impactful political thing about this is the potential moving up of the timeline of the legal cases, because we were talking about how if this case got delayed and delayed, that it could go beyond the election or whatever. Now it's looking potentially possible, like we could have a case that happens optimistically late spring, maybe early summer, something like that. And if there's a conviction in this case, polling does show that there would be some problems for former President Trump. Our NPR, PBS News, our Marist poll this week initially had Biden in a head-to-head

with Trump, with Biden with a one-point lead, which is a statistical tie. And if Trump were convicted, there would be huge shifts with women, suburban voters, independents, even a small number of Republicans that would jump Biden out to a six point lead. So let's slow this down for a minute and walk this through the next few steps, because I think it gets really complicated, especially for a casual follower. Harry, the appeals court judges give a tight turnaround to Trump's legal team, saying if you want to appeal this to the U.S. Supreme Court, you've got until this Monday. That's right. Although it's a little bit more nuanced because they're aware that we're always on two tracks with Trump merits. No way he wins timeline. What they say he has to do by Monday is apply for a stay because otherwise the mandate goes back to Judge Chutkin and it's over. The Supreme Court could theoretically take up the issue but still have Chutkin proceed. It's not

likely, but they could. So to slow it down and just go through it, on the 12th, by the 12th, he will file a motion for a stay. It's actually possible that the court takes that as a cert petition. I won't go through the arcana there except to say that we already know, recall a few weeks ago, that Jack Smith said, hey, court, take it. They've already heard Jack Smith's view. Now, the court is quite aware, I think, of the timeline. That's one of the things yesterday showed. And they will take it up at their next conference. They can decide as soon as, and I think they probably will decide as soon as, a week thereafter, the week of February 19th, do we grant this guy's stay and do we take the case? If they do, the timeline Domenico talked about is shot. We're now talking more about late fall, I mean, late summer, excuse me. And now we're in the heat of the election and most judges, including Chutkin,

think this is just too funky. If they deny cert on the ground that this was airtight, we have nothing more to add. It's an unusual case. Now, as of that moment, there's no more stay. usual case. Now, as of that moment, there's no more stay. And this whole misadventure for Trump, really the one opportunity to delay things, has run its course. And we're back with Chutkan and to a trial probably in June. I would never, never suggest that politics enters the mind of Supreme Court justices. Certainly something, you know, of course not. Heaven forfend, they would say. Not that they made it abundantly clear. Although, may I please say, there is politics and there's politics. There's politics as in

yay Trump, boo Biden. And there's politics as in the need of the people to be able to have an informed decision come November. That second one, I think, will enter in and probably should enter in. And there's also the politics of how much we know that Chief Justice John Roberts is well aware how much the court's trust levels and approval levels have just plummeted in recent years. 100%. So how likely do you think it is that we get some sort of combination of we give Trump the big win in the Colorado case, but you know what? Motion denied. You're going to trial.

Do you think we get those decisions at the same time? How clear cut is this? Sure seems like a tidy package, doesn't it? In terms of timing of the first, I think we get it soon because they're aware of the calendar. And I think the question is before or after Super Tuesday. And if I had to bet, I would say before. But I think whether or not they grant that stay is really a, you know, 50-50 call down the middle. at the Supreme Court. The other is at its doorstep. They both have to do with the presidential election, a controversial election. Is this John Roberts' worst nightmare or is this an opportunity for him to say, look, we're balanced here. We're thoughtful here.

I would lean more toward worst nightmare than I think he'd much rather deal with the pretty usual stuff that comes through the court to make decisions based on the law and not wade into politics. He just doesn't like it, makes him uncomfortable, makes him itchy. And we've seen lots of other people who don't like politics then fumble the politics of this because they don't want to be involved in it. I'm thinking about James Comey, for example, in 2016, he didn't want to be involved in politics and then he was smack dab right in the middle of it. And that's a great pivot to our last point. Boy, that's perfect. For those of you who don't remember or perhaps are younger listeners, in 2016, there is an investigation into Hillary Clinton's private email server.

There is a determination that no laws were broken, but James Comey decides to hold a press conference just raking Clinton over the coals for her judgment. And then in a day I will never forget because I was at the Trump rally the moment it in as many words, arguably cost Hillary Clinton the presidency. This week, a few hours after the Supreme Court oral arguments end, the special counsel investigating President Biden's handling of classified documents releases a report that does not charge Biden with any crimes, but one set points out several instances that kind of parallel some of the some of the details of the criminal case against Trump in Florida with his handling of classified documents, where in both cases, much like Trump said, hey, I've got the classified documents here. I'm paraphrasing. There's evidence of Biden saying, oh, I found this classified document. Let me show it to you, to the person working on his memoir with him. Biden wasn't storing his documents in a bathroom, but there's pictures of ratty boxes in his garage filled with classified documents. And Domenico, there's this whole other political issue that's really, you know, enveloped the entire week of Biden's memory and Biden seeming to forget a lot of key details. But as it comes to how this

affects the Trump documents case, what jumps out to you either politically or legally? Well, I mean, number one, just having this report in the first place, Trump is able to muddy the waters and say what he did yesterday, which was that this case is a thousand times different and a thousand times worse, even though the opposite is true as far as what was in the 385-page report and as far as the facts go. Because Biden cooperated and Trump didn't. Well, I mean, and you also didn't have reams and reams of boxes, right? I mean, this is a lot different. There were lots more documents in the Trump case that were marked top secret and classified and all of that.

Biden had a couple of papers that were marked top secret. Most of the classified stuff were his own handwritten notes from the time that he was supposed to give back and never did at that time. But he did cooperate. Right. And Trump wouldn't. The bottom line here is Trump would not be prosecuted either, most likely, if he had just given all the stuff back and had cooperated. The FBI had to go to Mar-a-Lago to get it. Yeah. And they had to have an informant on the inside. I mean, it's a totally different situation as far as having this material and sharing this material. But as one Democratic strategist who I talked to earlier today, Paul Begala, who a lot of people know who worked for Bill Clinton, said that this report clears him legally and kneecaps him politically.

Harry, let me put it to you this way. What do you think are fair comparisons between the Biden document situation and the Trump document situation? And what do you think are unfair comparisons? I mean, in a word, the whole report is overwrought, way more detailed than you needed to reach the result he did. A comparison, because you want the DOJ to treat like cases like, is not illegitimate. What was gratuitous and stinks were these shots at his memory, which masqueraded as maybe this would make it harder to convict because the jury would see him as a doddering old man. In other words, the perfect complement to Trump's political points and the things that give voters the most doubt about Biden. They had no business

in that report, and it's very hard to see it that way. That part of it is of a piece with Comey's trashing Clinton and is really wrong as a matter of DOJ policy and even generally. Harry, last question on this to you. Obviously, there are enormous political implications of this report. Did you see anything in this report that came out this week that could affect the actual trial and the actual case against Trump on the documents front, which, remember, includes 40 criminal charges? And also, remember, is the case that seems the furthest off from actually going to trial at this point of time due to a range of reasons? On the substance, the short answer is no. It really is not relevant.

Let's end with this question to both of you. Dominica, we'll start with you. Did anything that happened this week fundamentally change what is happening with the cases or what is happening with the election? I mean, I think that this was a confirming situation when it comes to Joe Biden and his memory and his age. I mean, clearly his age has been the biggest issue. It's not getting any easier for Democrats or for Biden because he's not getting any younger. Every day that goes by is another reminder. And this is the thing with Biden is like, he's always been gaffe prone. Like it's not just an age thing. He's never been a

great messenger for the Democratic Party. And it makes it very difficult. And when you have this kinds of paragraphs in a prosecutor's report that comes out from the DOJ, it's just fodder for Republicans to be able to sort of dunk on them. So, Harry, whether it was the appeals court ruling, the Supreme Court oral arguments, or this special counsel report, what to you fundamentally changed the tracks of things, if anything? The immunity opinion. Huge, much stronger than we might have known. We didn't know what was coming and we'll have reverberations down the line. That is the big news of the week in Trump land.

Harry Littman, Domenico Montanaro, thanks to both of you for joining us. You're welcome. Thanks. 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, Krishna Dev Kalamar, and Steve Drummond. I'm Scott Detrow. Thanks for listening to Trump's Trials from NPR. Thank you. Take on whatever the market throws at you next. Learn more at Concur.com. On NPR's ThruLine.

Bread, freedom, and national dignity. It was time for the regime to fix itself. That's why I was going out. Remembering the Arab Spring. Find NPR's ThruLine wherever you get your podcasts. streets, jail, and hospitals. Does it have to be this way? For the history, the reality, and hopefully some solutions, listen to Lost Patients from KUOW and The Seattle Times, part of the NPR Network.