What A Day - Supreme Court Grants Trump Some Immunity From Prosecution

Episode Date: July 2, 2024

The Supreme Court's conservative majority handed former President Donald Trump a major win on Monday, granting him broad — though not full — immunity from charges he tried to overturn the 2020 election. The decision effectively kicks Trump's federal election interference case back down to a lower court judge to parse out which of his actions that day, and leading up to it, could be considered "unofficial acts," for which he could still be prosecuted. It makes the likelihood of a trial before November almost nonexistent and raises the stakes of the presidential election. Kate Shaw, co-host of Crooked's legal podcast 'Strict Scrutiny,' explains what the court's decision means for Trump's Jan. 6 case and all future presidents of the United States.And in headlines: The Supreme Court put on hold a pair of social media laws from Texas and Florida, trans nonbinary runner Nikki Hiltz is headed to the Olympics after winning the women's 1500-meter race at trials, and Chicken Soup for the Soul Entertainment is filing for bankruptcy.Show Notes: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 Tuesday, July 2nd. I'm Traevel Anderson. And I'm Todd Zwilich. And this is What A Day, the show where we're wondering if the Supreme Court just spent the last two weeks launching America's going out of business sale. Just in time for the Fourth of July. Oh, I love a sale time. I love Independence Day. Independence from not having a king? On today's show, a new anti-DEI law forces cultural resource centers to shutter in Utah, plus Chicken Soup for the Soul files for bankruptcy. But first, Trayvill, let's travel back in time almost 20 years ago to September 2005. Okay, my eyes are closed. I'm thinking back to 2005. What happened then? In your way, way back machine, Trayvill, that was when the Senate held hearings on the nomination

of a very young, very naive John Roberts to be the next chief justice of the Supreme Court. And it was during those very hearings that John Roberts said these words. I believe that no one is above the law under our system, and that includes the president. The president is fully bound by the law, the Constitution and statutes. OK, so not exactly a hot take there. But why is this important now? Because that was John Roberts 20 years ago trying to get the job in the Supreme Court. And on Monday, that very same now Chief Justice John Roberts was the man, the one we just heard say that nobody is above the law, including the president, authoring an opinion that greenlights a sweeping expansion of presidential powers. It was signed by the court's five other conservative justices, and it grants former President Donald Trump immunity from prosecution over huge parts of his alleged role in the January 6th insurrection and puts him and future presidents

quite actually above the law. Okay, don't like this at all, although it was something we sort of kind of expected. But what does this mean for the federal government's January 6th case against Trump and the other cases he has? And the many other dozens of charges that Donald Trump still faces, right? Well, the four felony charges against Trump from special counsel Jack Smith's office are definitely delayed here. And late Monday, Trump even moved to have his recent conviction in the Manhattan hush money trial overturned, citing the court's decision just hours earlier. So basically, the court has placed America's largest asterisk next to the time-honored phrase, no man is above the law. And Trump can stay above the law just as long as he gets back to that cozy, impervious protection of the Oval Office.

Now, President Biden addressed the decision late Monday and said it's now up to voters to make sure that that doesn't happen. The American people must decide if Trump's embrace of violence to preserve his power is acceptable. Perhaps most importantly, the American people must decide they want to entrust the president once again, the presidency to Donald Trump, now knowing he'll be more emboldened to do whatever he pleases whenever he wants to do it. To get a better sense of the implications of the court's decision granting Trump and future presidents broad immunity, I talked to Kate Shaw, co-host of Crooked's legal podcast, Strict Scrutiny,

and I started by asking her, what's the big takeaway from this decision? Bottom line, it's an enormous win for former President Trump, for a potential future President Trump, and for any future president who wants to engage in potential misconduct, even criminal misconduct, without facing meaningful accountability. So it's an enormous expansion of presidential power and contraction of meaningful accountability that presidents are subject to. In terms of the

indictment regarding January 6th against Donald Trump and his election interference activities, the court says a few things about whether the case against him can proceed at all. And it says for acts that are within kind of the core of presidential power, those acts are absolutely immune. They can never be subject to criminal prosecution. And the court says there are some core presidential acts that are alleged in the indictment, and that includes threats to dismiss the acting attorney general if he wouldn't cooperate in trying to coerce states to find electoral votes for him and, you know, remove votes for President Biden and things like that. So core presidential acts,

absolutely immune. Purely private acts, not immune. So former presidents can still be prosecuted for purely private misconduct. So those are in some ways the easy categories. The harder category is this kind of vast middle, which are official acts of the president that are presumptively immune from criminal prosecution, but not absolutely. It's a presumption that can be overcome, but how exactly that presumption operates and how it can be overcome by a prosecutor are kicked back to the lower court for examination in the context of these allegations. So that part, going back to the lower courts, I assume you mean Judge Tanya Chutkin's court in the U.S. District Court.

Exactly. What happens next? Does she now have to hold a side quest to figure out which acts are official and which ones aren't in this case? I think that is the next step. So there is this, again, presumptive immunity for official acts. And think about something like trying to coerce state officials to change votes or working with private attorneys to generate fake elector slates. So these are things that are alleged in the indictment against Donald Trump. And those, it does seem, fall on the non-official and so not immune side of the line. And importantly, this opinion does not conclusively find that that kind of conduct is private and

thus subject to prosecution. So all of that will fall to Judge Shuckin in the D.C. District Court. But I do think at the end of the day, even under this quite extreme opinion, there are some acts alleged in this indictment that should still be deemed unofficial and thus prosecutable. But the question is how long it would take for that kind of finding to occur. And the answer, I think, is months and certainly not before the election is upon us. So, Kate, you said something interesting that the Supreme Court and Chief Justice John Roberts, in the majority opinion, really reached out and described specific parts of the president's responsibility, specific parts of his day, if he's maybe trying to overturn an election or mount a coup, that would be definitely immune from prosecution, leaning on the attorney general, maybe even trying to coerce the vice president. We don't know. And Justice Sonia Sotomayor and her dissent, she said that this thing that you just described was extraordinary, that the majority had reached out and identified

the evidence that was out of bounds, but left it up to courts to litigate what might be inbounds, maybe, maybe not. So what are the implications of that, identifying the things that are out of bounds, but sort of shrugging your shoulders about what might be inbounds? It's already a disposition that is enormously favorable to Donald Trump. I mean, I also think in the middle category that I was describing, the court says, at the very least, those kinds of official acts are presumptively immune, but the court actually doesn't even rule out a determination that those acts are absolutely immune. So it could be in a future case, the court says, ah, remember that category two, we said at least presumptively

immune. Actually, those things are best understood as absolutely immune. So I don't know if a case like this returns to the Supreme Court involving these or other facts. But even the more you read of this opinion, the more favorable it is to former President Trump and essentially an unchecked and unaccountable president than even at first glance. And the majority is at pains to say, no, presidents aren't kings. We're still saying that private conduct could be prosecuted and maybe some official conduct. We're not going to say either way, but I wouldn't take those protests too seriously. I think that Sotomayor honestly gives a better encapsulation of what the opinion does in which she says the court is creating a law-free zone around the president, that it is upsetting the status quo that has existed since the founding. And those are the consequences of this ruling.

Let's put it in Justice Sonia Sotomayor's words. You just described them, but let's let her writing shine through here. Orders the Navy SEAL Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune, immune, immune, immune. That's a dissent. It's really, it's a very powerful dissent. I do think that people should read the whole thing, because the last line of this opinion, she says, with fear for our democracy, I dissent. So she omits the respectfully, but you know, she's omitted that before. But I think that broadcasting actual fear for the implications of this opinion is something I don't think I've really seen in

a dissenting opinion before. I mean, they are screaming in the language of the law, but they are really, really screaming, this is a five alarm fire, the dissenting justices are, and we all need to be genuinely scared about what it means for our democracy. And I take that extremely seriously. I do too. I want to get back to that five alarm fire in just a second. Before we do, Donald Trump is under dozens and dozens of indictments in other jurisdictions. He's been claiming immunity in the Mar-a-Lago classified documents and obstruction case, even though that conduct took place after he was president, not while he was president. He's been claiming immunity in the Georgia RICO conspiracy case, which is about election interference, but under state law in Georgia. What are the implications of this ruling for all of the other charges that Donald Trump is facing in other jurisdictions? By the way, the ones he hasn't been found guilty for yet. Honestly, I would even throw in the New York business records

case involving the payments to Romy Daniels, because on appeal, it is conceivable that his lawyers will revive an argument that they made below, which was that some of the conduct at issue, you know, it's mostly pre-presidential, but at least the checks that were written, some of them were written following his inauguration as president. The timing there also brought immunity into play. So I think it's the case that all of the pending cases against Donald Trump, and even that case, which has resulted in a jury verdict against him, those are cases where the lawyers are going to come back to the judges and say, this new ruling on immunity changes everything. And I don't think that's going to be successful, to be clear, in the hush money case. And I don't think it's going to be successful in the Georgia case. But I do think that as to the document case in Florida, right, involving the retention, the taking and the retaining of classified documents, the lawyers will press even more forcefully than they have been that there's some kind of immunity shield from criminal liability for taking and retaining these documents. I mean, they should fail, at least as to much of the conduct, because while

it's true that Trump left the White House as president, and I think even landed at Mar-a-Lago on Inauguration Day with the documents, still as president, because of course, remember, he skipped the inauguration and left town that morning. So all of that, he could make an argument he was engaging in as president, but everything else alleged in that indictment, the retention of the documents, the ordered destruction of documents, the obstruction of justice charges, all of that long postdates the presidency. So it would be an enormous expansion of this ruling to say ex-presidents get immunity not just for everything they do as presidents, but for everything they do after leaving office. I can't imagine even this

court embracing that kind of expansion, but it's not inconceivable to me that Aileen Cannon might at least consider adopting that. And that would wipe away the Mar-a-Lago case, which is in many ways the most straightforward of the criminal cases against former President Trump. And just a reminder for everyone, Aileen Cannon is the U.S. District Judge in Florida who's presiding over this. Many, many dozens of indictments for classified documents, retention and obstruction of justice installed by Donald Trump just before he left office. So that's the documents case. That's the Georgia case. Broad immunity, it seems, in the January 6th case. So back to that bottom line that you were talking about, Kate, how does this opinion

change the stakes in your view of this presidential election? What's really at stake here for Donald Trump and for the rest of us who, up until yesterday, thought the president wasn't above the law? That cannot be emphasized enough that throughout our history, everyone has assumed that ex-presidents are subject to law like anyone else. I mean, when Richard Nixon left the presidency, he was given a full and unconditional pardon by Gerald Ford. Predicate, the assumption was, without the pardon, criminal prosecution was a live possibility. And that has always been

the understanding, I think, since the founding until Mitch McConnell, when he voted not to convict Donald Trump in his second impeachment trial, said on the Senate floor, civil and criminal penalties are available. And that's how we should address this, not through impeachment of someone who has already left the presidency, because the trial happened after Trump had departed. So in terms of what this means going forward, I think it's an incredibly dangerous time for the court to hand down an opinion like this. We are in the midst of a presidential campaign in which Trump is running on a promise to seek retribution against political rivals. And it really feels like the court has now handed down a decision that says he can do that with impunity. He's not going to be subject to criminal prosecution, even for engaging in the most egregious abuses of power.

I do think it makes the stakes of the presidential election even clearer than they already were, just in terms of what we would be reckoning with as a country if Trump were given a second presidential term. That was Kate Shaw, co-host of Crooked's legal podcast, Strict Scrutiny. Thanks so much for that, Todd. That's the latest for now. We'll get to some headlines in a moment. But if you like our show, make sure to subscribe and share it with your friends. Let's get to some headlines.

Headlines. In other Supreme Court news, the justices handed down a highly anticipated decision on two cases involving how social media platforms can regulate political content. The cases were brought after Republican lawmakers in Texas and Florida passed legislation barring social media platforms from restricting the posts of political candidates. The laws came about shortly after X, which at the time was still Twitter, banned former President Donald Trump from the platform in 2021, shortly after the Capitol riots. Conservatives claim that companies like X, TikTok, and Meta are censoring right-wing content in violation of the First Amendment by banning figures like Trump. The high court issued a hold on both Texas and Florida's laws in February when it heard oral arguments in both cases. And on Monday, the justices maintained that hold and sent the case back to the lower courts for further review. Also on Monday, the justices maintained that hold and sent the case back to the lower courts for further review.

Also on Monday, Utah became the latest state to implement Republican-driven anti-diversity equity and inclusion legislation. The University of Utah closed three of its cultural and resource centers to comply with HB 261 that bans public institutions from participating in, quote, differential treatment based on race or gender. Now, this includes the university's entire DEI program, as well as its LGBT resource center. Around 45 staff members were affected. They'll be reassigned to new cultural programming that is less discriminatory by the law's own language. HB 261 went into effect officially on July 1st. It was pushed by Utah's Republican lawmakers and Governor Spencer Cox. Over the last year, lawmakers in Florida, Iowa, Alabama, and Wyoming have passed similar draconian legislation restricting DEI programs. Non-binary trans runner Nikki Hiltz made history at the Olympic trials on Sunday when

they won the women's 1500 meter race. Hiltz came in first with a time of 3.55.33, the second fastest time in U.S. history. They will go on to compete at the Paris Games later this month. Take a listen to what they told NBC Sports right after they crossed the finish line. This is bigger than just me. You know, it's the last day of Pride Month, and this is, I wanted to run this one for my community. And yeah, this is for all the LGBTQ folks. Like, yeah, you guys brought me home that last hundred. I could just feel the love and support. Hiltz will go on to join a small group of trans athletes who have made it to the Olympic stage in recent years. But it's worth noting that trans women who have gone through male puberty are still barred from competing internationally in track and field. Also, Quincy Wilson is making history as the youngest male U.S. track and field Olympian.

He broke the American record for under 18 runners, not once but twice, breaking his own record. He was selected for the 4x400 relay for Paris, and he's only 16. He's only 16. Chicken Soup for the Soul Entertainment is filing for bankruptcy. Trayvill, did you know that they're the parent company of Redbox, those red DVD rental kiosks down at the supermarket? That makes no sense. Why would they eat? That makes no sense to me. It makes no sense to me.

And Chicken Soup for the Soul, I thought, was the books that you bought at the checkout line, not the DVDs on your way out. Filings show that the company was nearly a billion dollars in debt, owing millions of dollars to over 500 creditors. Debtors included Walgreens, Walmart, Sony Pictures, Warner Brothers and the BBC. Chicken Soup had big dreams of creating a new entertainment network, merging DVD rentals with its free streaming platform called Crackle, apparently. And it seems the dreams have now stayed just that. According to reporting from Deadline last week, Redbox employees said they haven't been paid for a week and their medical benefits had been suspended. So I guess Chicken Soup bought Redbox in 2022, right as DVDs were getting ready to take off, Ternell, right at the sweet spot.

This makes no sense. The Chicken Soup people are supposed to be doing good for the culture, for the community. They're not supposed to be not paying their employees. What's going on? Actually, I think they own the beeper that I rented. Hate that for them. And those are the headlines. One more thing before we go.

Summer is here and the Crooked store is celebrating with 25% off site wide. If you're not feeling super. Stock up on teas, mugs, and accessories to express your patriotism and love for our democracy, but not in a weird Republican way. In a cool, normal way. You know. Head to crooked.com slash store to shop and get 25% off now. That is all for today. If you like the show, make sure you subscribe, leave a review, find your nearest Redbox, and tell your friends to listen. And if you're into reading, and not just chicken soup for the bankruptcy filer soul like me,

what a day is also a nightly newsletter. You can check it out and subscribe at crooked.com slash subscribe. I'm Todd Zwilich. I'm Trayvon Anderson. And pay your people chicken soup. Because come on. How are you going to be talking about people's souls, I'm Todd Zwilich. I'm Trey Bell Anderson. And pay your people chicken soup. Because come on, how are you going to be talking about people's souls, but you're ignoring their pocketbooks?

Okay, that's important too. And not renting them Gladiator at the grocery store for two days. 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 have production help today from Michelle Alloy, Greg Walters, and Julia Clare. Our showrunner is Erica Morrison, and our executive producer is Adrian Hill. Our theme music is by Colin Gilliard and Kashaka. Our showrunner is Erica Morrison and our executive producer is Adrian Hill. Our theme music is by Colin Gilliard and Kashaka.