UNBIASED - April 25, 2024: SCOTUS Hears Presidential Immunity Case, Here's What It's About and My Ruling Prediction; Plus Harvey Weinstein's Conviction Overturned and AZ House Passes Bill to Repeal Abortion Ban.

Episode Date: April 25, 2024

1. Arizona House Passes Bill to Repeal State's 1913 Abortion Ban (1:28)2. NY Court of Appeals Overturns Harvey Weinstein's Conviction (3:21)3. Supreme Court Hears Trump v. United States: Whether Presidents Are Entitled to Immunity From Criminal Prosecution; Plus My Ruling Prediction (6:45)Use this link to schedule your FREE Filevine DEMO (and use code JORDANISMYLAWYER for 15% off when you're ready to buy!)Get EXCLUSIVE, unbiased content on Patreon.Watch this episode on YouTube.Follow Jordan on Instagram and TikTok.All sources for this episode can be found here.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

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call the Conax Ontario helpline at 1-866-531-2600. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Welcome back to Unbiased, your favorite source of unbiased news and legal analysis. Welcome back to Unbiased. Today is Thursday, April 25th, and this is your last daily news rundown for the week, but also the most exciting rundown of the week. And it's brought to you by Filevine. Filevine is every law firm's absolute best friend. It's everything you need to manage your cases, increase client communication, track billing, and manage your time. One of my favorite offerings from Filevine is the complete customization. So you can completely customize your products to cater to your specific practice area. You're a personal injury attorney? Great. You work in family law? Awesome. You work in

insurance defense? Not a problem. No matter your practice area, Filevine has a solution. So when I was practicing as an attorney, I so wish my firm had Filevine because it would have made my life so much easier. And who knows, maybe I'd still be practicing, but none of us would want that because then I wouldn't be here. So schedule your free demo today by clicking the customized link in this episode description. And once you love what you see in the demo, use code Jordan is my lawyer for 15% off your purchase. Being a lawyer is stressful enough, so leave what you can to Filevine. Without further ado, let's get into today's stories. The first two stories will be relatively short because the third and final story is one you've been waiting for all week. It's also one of the Supreme Court's biggest cases, which is Trump's presidential immunity

case. So that's where we will spend most of our time. But first, let's talk about Arizona a little bit. A little bit of an update to this week and last week. After two failed attempts within the last couple of weeks, the Arizona House of Representatives passed HB 2677, which repeals the state's decades-old near-total abortion ban. The passage means the bill will now go to the Senate, which will hold a vote next week, and if passed and signed into law, which presumably will be, the old abortion ban will no longer be enforceable and it will leave in place a more recent 2022 15-week ban. If you're wondering why the more recent 15-week ban wouldn't automatically take precedent over the older near-total abortion ban, the short answer is because the state Supreme Court just ruled a few weeks ago that the older abortion ban could still be enforced since it was never officially repealed by the state legislature. So go ahead and listen to that if you so wish. But following that ruling, some Republicans, though clearly not all, knowing that this

is a hot issue in the upcoming election, called on the state legislature to pass a bill that would officially repeal the old ban. And so, as I said, the House tried twice and failed. But then yesterday, three House Republicans joined all Democrats, resulting in the bill's passage. Now, to sort of illustrate how divisive of an issue this is in the Republican Party, one Republican representative, Matt Gress, said after his vote in the bill's favor, quote, as someone who is pro-life and the product of strong women in my life, I refuse to

buy into the false notion pushed by the extremes on both sides of this issue that we cannot respect and protect women and defend new life at the same time. End quote. Following Gress's statement and vote, House Speaker Ben Toma actually removed Gress from his seat on the Appropriations Committee. So definitely not all Republicans are in line on this issue, but we will see what the Arizona Senate decides to do with this measure. Moving on to Harvey Weinstein. the highest court in New York overturned Harvey Weinstein's rape conviction today, but it may not be for the reason that you think. So it's not that the high court found that Weinstein didn't rape the women that he is accused of raping, but

rather because of an evidentiary issue below. In certain circumstances under court rules, you can have a conviction tossed as a defendant if the court that convicted you erred badly enough that it warrants a new trial. So it was an egregious error. In this case, what the New York Court of Appeals wrote in its narrow four to three opinion was that the trial judge in the court below erroneously admitted testimony, specifically, quote, testimony of uncharged alleged prior sexual acts against persons other than the complainants of the underlying crime, end quote. The opinion further stated that the lower court compounded that error when it ruled that Weinstein, who had no criminal history,

could also be cross-examined about those allegations, as well as numerous other allegations of misconduct that portrayed him in a highly prejudicial light. So in a recent episode I did talking about Trump's hush money trial, the judge in that case was ruling on certain pieces of evidence that could and couldn't come in at trial. And I talked a little bit about the evidentiary standard, which is this balancing test that helps a judge decide whether evidence is admissible into a trial. And under that balancing test, the judge has to weigh the probative value

against its prejudicial value. So if a piece of evidence is more prejudicial than it is probative, it can't come in. In this case, in Harvey Weinstein's case, the trial judge allowed the testimony of alleged victims of Weinstein who weren't involved in the underlying charges at trial and actually weren't the center of any charges brought against Weinstein. So these were just women who said that they had been abused by him in the past, and they very well could have, but no charges stemmed from that abuse, and they were not the women who were at the center of the charges at issue in the trial. So the reason that this testimony even came in in the first place was to establish a pattern of Weinstein's behavior, but the high court ultimately said that the conviction should only be based on what the defendant is being charged with, which didn't include the testimonies of these other women. That's important to note, obviously, the dissent, which was three of the judges, they totally disagreed with this rationale and believed that his conviction should have been

upheld. It's equally important to note, though, that the ruling doesn't mean he goes free now. The ruling specifically ordered a new trial, and the Manhattan District Attorney's Office has already said it will retry him so long as the alleged victims are willing to come forward again. On top of this, though, he was also convicted of sex offenses in LA and sentenced to 16 years there. So what will happen is he'll now be transferred to prison authorities in California and serve his 16-year sentence there, all while a new trial potentially plays out in New York. So he's not off, you know, scot-free. He doesn't go free because of this ruling, but that's the deal with Harvey Weinstein. So now let's move on to the

story everyone has been waiting for all week, which is Donald Trump's presidential immunity case in front of the Supreme Court. The Supreme Court heard its final argument for its 2023-2024 term today. But before we get into that discussion, I do just want to say that this story will cover all the usual bases, right? So we'll talk about the question for the court, the arguments on both sides, as well as a brief synopsis of how the justices were feeling at arguments. If you want more though, so more detail about the justices' questions, what exactly the concerns were from each particular justice, I will be uploading a special deep dive episode to my Patreon page

tomorrow where I'll really go into the details on all of that. I'll also be talking about the questions some of you had about Justice Thomas and why he's not recusing him or why he chose not to recuse himself from this case despite his wife's involvement in some of the January 6th related activities. So if you're curious about that too, what the standard for recusal is, what the Supreme Court says about that, then Patreon will be your place. So you can sign up for my Patreon page by using the link in the episode description, the description for this particular episode, or by just going to patreon.com, searching Jordan is my lawyer, my page will pop up. So with that out of the way, let's talk about

the case. The question for the court here is whether and if so, to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure? Procedurally speaking, this case stems from the charges that were brought by Jack Smith related to election interference. Trump tried to get these charges thrown out in district court, arguing that he is immune from prosecution because he was president when the alleged crimes took place. When the district court rejected that argument, Trump then appealed to the Court of Appeals for the District of Columbia. At that point, before the appellate court ruled on Trump's appeal, former special counsel Jack Smith tried to go straight to the Supreme Court to expedite proceedings. So the appellate court had not yet ruled on the issue, but he petitioned the

Supreme Court anyway. And at that point, the Supreme Court declined to get involved. The justices said, go ahead and let this play out in the appellate court, let the appellate court rule on this, and then we'll jump in if we find it necessary to do so. So six weeks later, the appellate court upheld the district court ruling and rejected Trump's immunity defense. So Trump then takes it to the Supreme Court. And this time, the justices decide that they will hear the case. And they fast tracked the case for argument during its April argument session. And those arguments just happened today on the court's final day of arguments. So let's first talk about the arguments on both sides,

as we usually do, and then we'll touch on the actual day in court. Trump argues that a president can't be prosecuted for his official acts. He points to the lack of prosecutions throughout history, as well as the Constitution and principles of the separation of powers. Trump also cites two certain landmark rulings from the Supreme Court, including Marbury v. Madison, in which the Supreme Court ruled in part that courts can't review a president's official acts, and then later Nixon v. Fitzgerald, which the Supreme Court ruled that a president can't be held civilly liable for acts within the outer perimeter of his responsibility. Trump argues that because courts can't review the president's

official acts or hold him liable in civil courts, it must also follow that presidents can't face criminal charges. Something else that's interesting here is that in Trump's brief, which obviously Trump himself didn't write, but his attorneys did, the attorneys actually cited to none other than Justice Kavanaugh himself. Justice Kavanaugh wrote this article before he was ever a judge. It was while he was working in the George W. Bush White House. And what he wrote is that a president who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as president. So Trump's attorneys cite to this and say that the same is true if that criminal investigation is waiting in the wings until he leaves office. And for that reason, a president

should not be held, a president should be entitled to immunity. Another one of Trump's arguments relies on the impeachment judgment clause, which says that someone who is impeached and convicted can still be indicted, tried, and punished in accordance with the law. And Trump says that the language of this clause implies that a president can be criminally prosecuted only after he has first been impeached by the House and convicted by the Senate. So Trump argues that the impeachment judgment clause precludes criminal charges against him. And I think this is an interesting argument for him to present because I could actually see this working against him. Let's say the justices reject this rationale. I can totally see them saying, well, we actually

don't read it like that. We actually read it to mean that a president can be indicted and tried in accordance with the law and therefore not immune from prosecution. This clause opens the door for a potential for a potential prosecution. And this is actually one of special counsel Jack Smith's arguments. But the last sort of argument that Trump puts forth in his brief is he asked the justices to reject a theory on which the appellate court relied in ruling against him. The appellate court ruled that a president is not entitled to immunity from criminal prosecution if his conduct was purportedly motivated by a desire to stay in power illegally. And Trump says this rationale can't be upheld because one, it requires the court to determine what the presidents were motivated by. And as Trump has argued, courts

can't review a president's official acts. And two, the court has held that the purpose or motive behind the alleged misconduct does not play a role when determining whether an official is immune. So for all of these reasons, he says the appellate court erred completely and the Supreme Court should find that a president has immunity for when it comes to criminal charges. Now, when it comes to Jack Smith's arguments, Smith concedes that the DOJ has long recognized that sitting presidents cannot be criminally prosecuted because doing so would interfere with the job of the president. But he says that concern is no longer an issue once the president leaves office. Smith argues it's actually quite the

contrary. He says that a bedrock principle of our constitutional order is that no person is above the law, including the president. Smith says that the fact that no former president has ever been prosecuted doesn't mean that they can never be prosecuted, but instead underscores the unprecedented nature of Trump's alleged conduct. In fact, Smith argues, all presidents were aware that they could be prosecuted for their official acts once they left office. That's why both former President Nixon and then President Gerald Ford accepted the pardons that were offered to them, because they knew that they could be prosecuted if they didn't accept them. Smith also addresses the case of Nixon versus Fitzgerald, where the court held that a president cannot be held civilly liable by a private party. But he says that this precedent does not automatically shield former presidents from federal criminal liability as well. Civil liability is entirely different,

and the rationale behind each are entirely different. Finally, Smith says, even if the Supreme Court concludes that a former president has some immunity from prosecution for his official acts, there should be no immunity for the kinds of charges involved in this case. Not to mention that some of the acts in this case are private acts, so immunity isn't even a topic of discussion when it comes to those particular actions, but we'll touch on that more in a minute. So those were the arguments set forth in the briefs filed by each side, which means that those arguments are fair game for the justices to assess in making their ultimate decision. However, when it came time for oral arguments today, the arguments were really centered on

a few things, and also a few things became a bit more clear as well. So both sides concede that a president is not immune from private acts. Because of this, the arguments were really focused on what classifies as an official act, and how do we know if a president is immune from an official act? Is it blanket immunity, or does immunity only come into play in certain circumstances? Trump's attorney argued more of the blanket immunity theory, said that if a president can be criminalized for conduct, Congress needs to make a clear statement as to that particular conduct to put the president on notice,

which Congress has done with certain statutes like a bribery statute. But that was really Trump's attorney's big argument, was that there needs to be this clear statement. The government, on the other hand, said a clear statement from Congress isn't necessary. The arguments also centered a lot on the intent of the drafters of the Constitution, as well as whether Article 2 of the Constitution specifically extends this type of immunity. But now for the part that everyone's been waiting for, how were the justices feeling? As you might expect, the justices that I can pretty confidently pin on either side are Justices Kagan, Sotomayor, Jackson, Alito, and Gorsuch. Specifically, Jackson, Kagan, and Sotomayor

are leaning towards the government, whereas Gorsuch and Alito seem to be leaning towards Trump. I would also put Justice Kavanaugh in Trump's bucket too, but it wasn't as obvious just based on the line of questioning from him as it was from Gorsuch and Alito. Justice Thomas was pretty quiet. He did not ask much, and he didn't ask much yesterday either, so I don't know. I was going to say maybe it has to do with that recusal issue, but I don't think that's it. Justice Barrett and Chief Justice Roberts didn't really show any significant signs of leaning either way, but that's also not really that surprising. They tend to be two of the three more middle of the road justices when it comes to ideologies. Yes, they do tend to lean conservative, but they are more middle of the road. I do want

to be clear that this court will not be giving us a straightforward answer in the way that you might be expecting. The opinion from the court is not going to be Trump has immunity or Trump doesn't have immunity, and here's why. The justices were really focused on private acts versus official acts, and Trump's attorney even conceded that there are some alleged acts in the indictment that he would consider to be private acts and that Trump is not entitled to immunity for those. So he can still face prosecution for those acts or those alleged acts. But because of that, this is not going to be an open and shut case because you have these questions of what is an official act? When is an official act entitled to immunity? Assuming official acts

are entitled to immunity and therefore can be thrown out, what evidence is allowed to come in at trial to prove the private acts if they're all intertwined and connected? So with that said, here's how I think the majority of the court will rule. I think the justices will say a president does not have blanket immunity for all acts that he takes. But yes, there are some situations in which a president may have immunity for his official acts. However, to determine whether an official act is entitled to immunity, we have to run through various factors, a test, if you will. And maybe that's a two-prong test, a three-prong test, or a four-prong test. Who really knows? But in that case, rather than assessing those factors themselves, what I think they'll do is I think

they'll send it back down to the lower court, the trial court, and they'll say, okay, now you analyze the facts of this case under this new test that we're setting forth to determine whether immunity exists for each of the various alleged acts. And from there, the lower court would have to analyze each alleged act and determine whether those acts are private or official. And for those acts that are official, the court would then have to assess each individual official act under this new standard to determine whether immunity is available. And for those official acts that are deemed to be, are deemed to have immunity, those would be thrown out. The rest would proceed to trial. Now, I don't know what the court is going to do about the evidence element of

it. Can evidence of official acts come in if they're entitled to immunity to prove the private acts? I don't know what the court's going to do with that. That's a tougher question. The court may not even decide to answer it. But keep in mind, a ruling like the one I just described opens the door to more appeals. Let's say the court goes and makes its assessment as to which alleged acts are official, which are entitled to immunity and which aren't. Trump can appeal again based on the court's application of the new standard. So a lot can happen here, but we should have a decision relatively soon. Usually, the court would wait until the end of July to release its more controversial decisions, but given the time constraints of this case, I do think we will get a decision

sooner than the end of June. The last thing I want to note is that if the justices rule in Trump's favor, this ruling will impact three, well, let me say this, the ruling will impact the procedure of three out of the four of his criminal cases. It would impact his classified documents case, his federal election interference case, and his Georgia election interference case. But it would not have an impact on the criminal hush money case currently ongoing in New York because that case is based on alleged actions that Trump took before he was president. So in the lead up to the 2016 presidential election. And again, if you do want to hear more from oral arguments, specifically how each justice

was phrasing his or her questioning, what each justice's concerns were, why some were calling on Justice Thomas to recuse himself, go ahead and get in on my Patreon page now so that way when the episode does go live tomorrow, you'll already have access to it. Remember, my Patreon page is for specialized content that is not available on any other platform of mine, so it's not on social media, not on my podcast. It's the only way that I currently monetize my platform, so don't forget to subscribe if you do want to access that content. The direct link is in this episode's description, or you can just head to patreon.com and search Jordan is my lawyer. That is what I have for you today. I hope you are leaving this episode feeling incredibly informed. You're feeling like you really understand this presidential

immunity case and you enjoyed it. That's also important. I hope you have a fantastic night and I will talk to you on Monday or tomorrow if you're a Patreon member.