What A Day - SCOTUS Hears Trump Immunity Case

Episode Date: April 25, 2024

The Supreme Court hears arguments today in a landmark case that could determine whether former President Donald Trump can be tried for his role in the January 6th insurrection. The case concerns whether presidents have “immunity” from prosecution for their conduct while in office. The court has never had to consider this issue until now, and it also has big implications for the 2024 election. Jay Willis, editor-in-chief of the progressive legal site Balls and Strikes, explains what’s at stake.On Wednesday, the court also heard its second abortion case of the term. It’s over whether an Idaho law that bans nearly all abortions can supersede a federal law that guarantees patients emergency care at hospitals. At least some of the court’s conservative justices expressed skepticism about the Idaho law.And in headlines: President Biden signs a $95 billion foreign aid package into law, Biden also signed a bill that would ban TikTok in the U.S. if its Chinese parent company doesn’t sell it off within the next year, and the United Nations called for an investigation into two mass graves in Gaza.Show Notes:Pod Save The World – https://crooked.com/podcast/gaza-protests-roil-college-campuses/What A Day – YouTube – https://www.youtube.com/@whatadaypodcastFollow us on Instagram – https://www.instagram.com/crookedmedia/For a transcript of this episode, please visit crooked.com/whataday  

It's Thursday, April 25th. I'm Priyanka Arabindi. And I'm Josie Duffy Rice. And this is What a Day, where we applaud George Santos for ending his recent campaign for New York's 1st District instead of further embarrassing himself, because Lord knows we wouldn't want that man to be embarrassed. I don't really know how much more embarrassed. I'm wondering how much further along the line you really go.

Don't ask that question, because he will answer it. And listen, if it's not in public office, it's fine. Explore that. You really go. Don't ask that question because he will answer it. And listen, if it's not in public office, it's fine. Explore that. Go for it. On today's show, the Supreme Court hears another case about abortion, plus President Biden signs the $95 billion aid package and says that Ukraine will receive military equipment immediately. But first, today the Supreme Court will hear oral arguments on what could be one of the most important decisions by the court of our time. The question in front of the court is whether presidents have, quote, presidential immunity from criminal prosecution for conduct alleged to involve official acts during their tenure in office. Priyanka, this is just like a fancy way of saying, can you break the law as it relates to the presidency

as the president? Yeah, can you get in trouble for it relates to the presidency as the president? Yeah. Can you get in trouble for it? Can you get in trouble for it? It's an issue the court has never had to consider until now and will determine whether Donald Trump can be tried for his role in attempting to overturn the 2020 election and could have a domino effect on Trump's other criminal cases as well. Right. I mean, as you said, it just pretty much is like, can this man get in trouble if he did

something objectively wrong, objectively bad that would get other people in trouble? This is the entire reason people got on ships and came to America and fought a revolution. Right. Because they were like, you know, the guy in charge has too much power and no accountability. And we don't like that. We don't like that. And here we are. The tables have turned.

Okay, quick background about this particular case. Special Counsel Jack Smith brought an indictment against Trump in this case in August of last year. Trump quickly appealed. An appeals court ruled against Trump in January. And at the end of February, the Supreme Court decided to in the history of our country, honestly. And it would also, again, keep Jack Smith from continuing to prosecute him and affect his other cases. Right. And given that we're in an election year, time is truly of the essence here. Yeah. There's been a lot of pushback to the court's decision to wait over a month to even take the case and then wait another two months to hear arguments in it. And it could be even more months before we get a decision. In the past, the court has answered similarly urgent questions on an accelerated timeline.

In 1974, the court issued a ruling in the Watergate Tapes case just 16 days after oral argument. And in 2000, they issued a decision just one day after hearing arguments in Bush v. Gore. But there's really no telling what their timeline will be this time, especially given that the court has a pretty conservative majority, you may have heard. So to learn about the specifics of the case, I called up our friend Jay Willis. He is a lawyer and the editor-in-chief of Balls and Strikes, a website that provides progressive analysis of judges, courts, and the legal system they uphold. I started by asking him what Trump's argument is for why he should be immune from all prosecution as a former president, and if there's any precedent for such an argument. Presidential immunity is a real thing. Donald Trump thinks it should be something bigger and more expansive, but there is a history of judges being reluctant to allow presidents

to face legal liability for things that they do while in office. And historically, this mostly comes up in the civil context. Like there aren't a ton of circumstances in which you can sue the president, for example. But what Trump's lawyers are arguing is that this concept of presidential immunity should also extend to any crimes he may or may not have committed as president. Now, lest you think I'm kidding when I say any crimes at oral argument in the federal appeals court level, one of the judges asked Trump's lawyer if a president could be charged for ordering the assassination of a political opponent. And his lawyer was like, well, yeah, you can charge a president then, but only if he's been impeached and convicted

by the Senate first. So this is like an exceptionally high bar that would basically make it impossible for the legal system to hold presidents accountable if and when they do crimes. So that's Trump's argument. What is the federal government's response? It's a funny brief to read because you almost hear the whole thing in the voice of someone who's like, wait, are you serious? Like, we actually have to write this? We actually have to argue this? But yeah, the idea is that if a president does crimes,

by virtue of being president, that should not insulate them from legal consequences forever. It's just sort of like bedrock principles of how the legal system works to the extent that it works. It's like if you do crimes, and especially if you abuse your power as a politician to do crimes, there can be consequences for that. Like, this is almost like bumper sticker stuff, right? Like, no one is above the law, not even the president.

So do we have an idea of how the court is going to rule in this case? Do we have a sense of whether or not this court is open to the idea of absolute presidential immunity? I mean, it seems like it would be a bombshell decision on their part to make, like almost too extreme even for this court. But they've surprised me before and rarely in a good way. No, I don't think the court is going to buy this argument. And I honestly haven't heard anyone who sort of tracks this stuff who does think

that any majority of the Supreme Court exists that is going to say yes to borrow Nixon's line, right? It's not a crime if the president does it. But this is one of those cases where the legalese, the legal arguments getting made here, they really matter a lot less than the real world context in which this is taking place. The way the court has managed this case kind of gives away the game. Even if they don't formally give Trump like this crimes hall pass, the next best thing for them to do, if you're again, a Republican justice who wants a Republican president elected, is to run out the clock because there might just not be time for a trial before the November election. So if you want to look at the clock because there might just not be time for a trial before the November

election. So if you want to look at the timeline here, Trump was charged by special counsel Jack Smith in August. The judge in this case, Tanya Chutkin, she originally set a trial date for last month for March of 2024, but she's had to delay the proceedings while this question of absolute presidential immunity for criminal liability winds its way through the court. The justices have also turned away multiple requests from Jack Smith to sort of expedite the proceedings to allow the case to get back on track. The bottom line is that unless and until there is a trial date, the closer we get to that election, the likelier it is that some delay pushes the trial past the election. And for Trump, like that outcome is as good as winning at the Supreme Court, because then if he wins the presidential election, he fires a special

counsel, orders DOJ to drop the case, and we never hear about this again. Like half the reason Trump wants to be president again is that being president is a surefire way not to go to prison. So the conservative justices, they could write, as you say, this bombshell opinion relieving him of criminal liability and all future presidents from criminal liability. Or they could not do something crazy like that, but still just run out the clock. Right. Is there like a date by which if Trump is not tried and convicted by this date, then it's too late? That's not the election? Presumably, if he's on trial in late October, like we're cutting it pretty close.

So there's not like a firm date. There is a world in which like we could get a a trial date very close to the election. If you look at the timeline in a different Trump case before the Supreme Court, the Colorado ballot case, where the Supreme Court decided that Trump couldn't be excluded from the ballot over his participation in January 6th. That appeal took place over the holidays between Christmas and New Year's. The Supreme Court granted cert on January 5th. It heard oral argument in early February and decided it in early March, right before Super Tuesday, when Trump was on all these ballots. And the reason I bring up all these dates is that when the court moving quickly is good for Donald Trump, the court knows how to move quickly and decide the case. So the question in this case is whether when moving quickly is bad for Donald Trump,

the conservative justices will view the task before them as similarly urgent. Yeah. You know, one thing worth thinking about is influential role the court has played in partisan politics lately. Like the conservative supermajority has given the Republican Party these victories that they could not have gotten anywhere else. Republicans have basically not been able to get anything done even in the House where they do hold the majority. But the Supreme Court has overturned Roe. They've tampered down on debt cancellation. They've killed affirmative action.

Do you think it's fair to say that even compared to the past, these six conservative justices on the court have had an unprecedented amount of power to steer national policy? What the conservative legal movement has long understood is that by installing sort of dyed-in-the-wool acolytes on the Supreme Court, this institution that has this sort of reputation as above partisan politics, that, as you say, they can enact policies that they would not be able to enact through the usual democratic legislative processes. There's, you know, poll after poll that demonstrates just how out of touch this Supreme Court, this Supreme Court supermajority is with like, what normal people want, not just like Democrats, not just like people on the left, but normal people who are trying to go about their

daily lives. I think it's really interesting, for example, that since the Supreme Court overturned Roe and Dobbs, as far as I can tell, every single opportunity at the state level that voters have had to weigh in on the right to reproductive access, reproductive access has won every single time. That's not just in blue states. That's in deep red states. I think the best way to think about the Supreme Court is that it is the most influential legislature in the country. And it is also the most conservative branch of government, and probably will be for the foreseeable future. That was Jay Willis, editor-in-chief of Balls and Strikes. We'll have more updates on oral arguments in the case on tomorrow's show.

Meanwhile, as the Supreme Court prepares to hear Trump's presidential immunity case today, the justices also heard their second major abortion case of the term on Wednesday. Yeah, real banner week for this court, huh? It's like never good news when the Supreme Court is hearing abortion cases. Nope. So I know we touched a little on this case on Wednesday's show, but just give us a quick reminder about what it's about. This case is over whether Idaho's near total abortion ban can supersede a federal law that's supposed to guarantee patients a certain level of emergency care. That law is called the Emergency Medical Treatment and Labor Act, or MTALA for short. MTALA says that if someone experiencing a medical

crisis shows up to an emergency room at a hospital that gets federal money, like funding from Medicare, that hospital has to either provide that patient stabilizing care or transfer them to a hospital that can. But the law doesn't name any specific treatments that hospitals are required to provide. So two years ago, when this Supreme Court struck down Roe v. Wade, the Biden administration issued a memorandum saying that EMTALA does cover abortion care when it's needed to stabilize a patient and not just when their life is at risk. Idaho then challenged that. So here we are back at the Supreme Court. Did the justices seem like they were kind of leaning one way or the other during arguments? You know, what did it look like? I mean, it was a really intense hearing. And I think the three to watch here are really Chief Justice John

Roberts and Justices Amy Coney Barrett and Brett Kavanaugh. They are the ones whose votes will likely decide which way the court swings, and they seemed torn here. Of the three of them, Justice Barrett seemed to have the most pointed questions. Here is an exchange between her and Idaho's attorney, Joshua Turner. She asked him whether a doctor who believed an abortion was necessary could be prosecuted. Would they be prosecuted under Idaho law? No, no. If they reached the conclusion that Dr. Reynolds, Dr. White did, that these were life-saving

What if the prosecutor thought differently? What if the prosecutor thought, well, I don't think any good faith doctor could draw that conclusion. I'm going to put on my expert. And that, Your Honor, is the nature of prosecutorial discretion, and it may result in a case that... I just want to say, the way that man said, no, they wouldn't be prosecuted, reminds me of like, when you confront your college boyfriend about cheating, and you like have pictures of it. And he's like, it's not me. No. It's like, I don't believe you, and you don't believe yourself. You're not telling the truth.

That answer inspired negative confidence. Negative confidence. Yes. Meanwhile, the three liberal justices, Sonia Sotomayor, Elena Kagan, and Katonji Brown-Jackson, were firmly on the side of the Biden administration, saying that abortion care is included under EMTALA, and they really skewered Idaho's lawyer, Turner. Here's an exchange between Turner and Sotomayor, where she asks him about a hypothetical woman who shows up to the ER after her water breaks at just 14 weeks

of pregnancy. She was in and out of the hospital up to 27 weeks. This particular patient, they tried, had to deliver her baby. The baby died. She had a hysterectomy. And she can no longer have children. All right? You're telling me the doctor there couldn't have done the abortion earlier? Again, it goes back to whether a doctor can, in good faith, medical judgment. That's a lot for the doctor to risk. Well, I think it's protective of doctor judgment. When Idaho law changed to make the issue whether she's going to die or issue, whether she's going to die or not,

or whether she's going to have a serious medical condition, there's a big dead daylight by your standards, correct? It is very case by case. The example. Right. I mean, she said it all. We know there are probably at least three justices here who are ready to side with the Biden administration. They will just need two more of the other justices to join them. And it doesn't seem totally out of the question here. But also, you know, you can never be sure with this court how things are going to shake out, especially on this issue. Yeah, this is yet another example of what we've seen a lot this term, which is attorneys being like, we're criminalizing them for their protection. We keep hearing that. And it doesn't make any sense. Not passing the smell test. Not at all. Nope. You know,

you mentioned three of the conservative justices. What about the three other conservative justices, Samuel Alito, Clarence Thomas, Neil Gorsuch? What were they saying? Here is where things get kind of scary. These justices seemed especially interested in exploring the concept of fetal personhood, which is the idea that a fetus, even an embryo, has the same rights as any other person. Establishing those rights has been a longtime goal of anti-abortion advocates, and Justice Samuel Alito really got into it with the attorney representing the administration side, Solicitor General Elizabeth Prelogger. He asked her about why EMTALA makes a few references to a, quote, unborn child and what that implies about potential rights.

The term emergency medical condition is defined to include a condition that places the health of the woman's unborn child in serious jeopardy. So in that situation, the hospital must stabilize the threat to the unborn child. And it seems that the plain meaning is that the hospital must try to eliminate any immediate threat to the child. But performing an abortion is antithetical to that duty. But you go so far as to say that the statute is clear in your favor. I don't know how you can say that in light of the, of those provisions that I've just read to you. Now the solicitor general pushed back on that and said that the law did nothing to displace the needs of a pregnant person who's in medical danger, but it's still a concerning line of questioning for people who

care about access to abortion. So I asked Aaron Ryan, one of the co-hosts of Crooked's podcast, Hysteria, what she made of this line of questioning. She said that it reflected Alito's ignorance on abortion care. In many situations, like an ectopic pregnancy, for example, there is no stabilizing the fetus. If a mother comes into an emergency room and she is pregnant and she's experiencing life-threatening hypertension. An abortion is the cure for that. There is no stabilizing the fetus. The fetus cannot survive outside of her body. And so to me, it both reflected a proud ignorance

on the part of Sam Alito when it comes to maternal health and a complete disregard for the humanity and personhood of women. As with most of these major decisions in front of the court right now, we are not expecting a ruling until near the end of the term in June, but obviously we will continue to follow this. That is the latest for now. We'll get to some headlines in just a moment, but if you are enjoying our show, please make sure to subscribe and share it with

your friends. We'll be right back after some ads. Let's wrap up with some headlines. President Biden signed a $95 billion foreign aid package into law on Wednesday. The bipartisan bill, which passed overwhelmingly in the Senate on Tuesday night, sends military assistance to Ukraine, Israel, and Taiwan. Here's Biden at the White House praising Congress for passing this bill. It's going to make America safer. It's going to make the world safer. And it continues America's leadership in the world, and everyone knows it. The bill will send about $61 billion to Ukraine, $26 billion to Israel,

and $8 billion for the Indo-Pacific region. There's also $1 billion going towards humanitarian aid for Palestinians. As we've been covering on the show, this comes after months of tense negotiations and deadlock across the aisle over foreign aid. House Representative Pramila Jayapal was one of 37 Democrats in the House who opposed the funding to Israel. She talked about her decision on Pod Save the World and about how she views Congress's push for unconditional military aid for Israel. For many of us, I think it felt a little bit like an Iraq war moment. I mean, obviously, very, very different situations. But I think we often get into these situations in Congress and members of Congress feel that

they can't stop funding a war. And maybe five years later, 10 years later, in some cases, two years later, people say we shouldn't have done that. We will link to that full episode in our show notes if you'd like to keep listening. And in that same bill is a provision requiring the sale of TikTok. We'd force the U.S. to ban the app if ByteDance, the Chinese company that owns TikTok, does not sell it within the next nine months. Of course, ByteDance has already vowed to fight against this measure. This is another one of those rare bipartisan efforts.

U.S. lawmakers on both sides of the aisle are concerned that TikTok is a national security threat. So could this ban really take effect? It's kind of hard to tell. A likely legal battle could draw the ban or potential sale of TikTok out longer than those nine months, but some are looking to other countries who have banned the app, including India, which banned TikTok permanently in January 2021. Many users and content creators have moved on to other social media platforms with similar short-form video already think instagram reels or youtube shorts look my head is in my hands i know because tiktok is the only social media platform that gives me any joy any joy also like i'm sorry youtube shorts that's a no for me it's a no for me absolutely no instagram reels is just lame it just has repurposed tiktok content from like two months ago it It's true. That's going to be my source of entertainment. You want me to ask

Meta AI to find me something entertaining on that app? No. No. The United Nations is calling for an investigation into two mass graves uncovered in Han Yunis. At least 320 bodies were found at the remains of two Gaza hospitals that Israeli troops raided this year. It is a truly horrific, horrific scene. The UN Human Rights Office reports that some of those Palestinian victims were found naked with their hands tied and is calling for a probe into possible war crimes. It's been 200 days of Israel's siege on Gaza after Hamas's attack on October 7th, and more than 34,000 Palestinians have been killed during that time. And Israel's ground invasion of Rafah is still imminent. Top Israeli and Egyptian officials met on Wednesday to discuss

the potential fallout, according to Axios. Egypt has kept its borders very tight to Palestinians throughout this conflict, and they are worried about an uncontrollable refugee crisis that could spill over their border with the Rafah invasion. More than a million Palestinians, many of them who have already been displaced, are sheltering in Rafah right now. Israel maintains that invading Rafah is a crucial part of their objective of defeating Hamas. And there's good news for all you frequent flyers. The Biden administration on Wednesday finalized rules requiring airlines to issue automatic refunds to travelers who experience, quote, significantly delayed flights.

You got my attention. This is where we get justice. Truly. Under the Transportation Department's current rules, individual airlines decide how long is long enough to issue a refund. And when they do offer a refund, they typically offer a travel voucher instead of cash. Now the Biden administration has set new standards. A delay of three hours for domestic flights and six hours for international flights will get you that cash refund.

American Airlines, your days are numbered. Like, I don't know what you're doing, but we're all getting paid. How are these airlines going to survive? I literally don't know. I don't know. The new rules also allow travelers to reject travel vouchers as refunds and opt for their money back. Love it. Yeah, amazing. The Transportation Department also issued its own new rule requiring airlines to be

more upfront about baggage fees and fees the traveler will incur for canceling flights. But as with most things, we do have to wait. The new rules will take effect over the next two years. Still, overall, great day for travelers of the skies. Huge. And no Boeing news. No Boeing news. We'll take it.

It's a win. It's a win. And those are the headlines. One more thing before we go. Building defenses against the right-wing propaganda machine requires your attention. So support progressive content while also enjoying ad-free episodes of Pod Save America, Pod Save the World, and so much more exclusive content. Become a friend of the pod today by heading to crooked.com slash friends right now.

That is all for today. If you like the show, make sure you subscribe, leave a review, book a flight, and tell your friends to listen. If you are into reading and not just all of those juicy Supreme Court transcripts like me, What A Day is also a nightly newsletter. So check it out and subscribe at crooked.com slash subscribe. I'm Josie Duffy Rice. I'm Priyanka Arabindi.

And someone give George Santos a reality show already. Put this man on a Real Housewives franchise. The housewives these days, they're not all

married. Like, just get him in the house. Oh, he's married. He's married. Never mind. He is. Well, TBD.

Is he? Is he? I mean, he said it once. It's like, who knows? Anything is possible. In his web of lies.

Anything. Right. I'd watch, I think. Oh, my God. knows? Anything is possible. In his web of lies, anything. Right. I'd watch, I think. Oh my God, I'd watch every day. You're kidding. What a Day is a production of Crooked Media. It's recorded and mixed by Bill Lance.

Our associate producers are Raven Yamamoto and Natalie Bettendorf. We had production help today from Michelle Alloy, Greg Walters, and Julia Clare. Our showrunner is Erica Morrison and our executive producer is Adrienne Hill. Our theme music is by Colin Gilliard and Kashaka.