What A Day - Supreme Court Weighs Immunity In Trump's Jan 6 Case

Episode Date: April 26, 2024

The Supreme Court heard oral arguments on Thursday in former President Donald Trump’s presidential immunity case. Trump’s lawyer tried to assert that there’s almost no situation under which a sitting president can face criminal charges, not even ordering a military coup or sharing nuclear secrets. It is a landmark case with big implications for both this year’s election as well as some of the other criminal cases Trump faces. Leah Litman, co-host of Crooked’s “Strict Scrutiny,” says Trump’s team is trying to normalize conduct that is inconsistent with democracy and the rule of law.And in headlines: Pro-Palestinian protests spread to more college campuses, Manhattan’s DA vowed to retry Harvey Weinstein after the producer’s New York rape conviction was overturned, and Apple forecasted a bleak outlook for its Vision Pro headsets.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 Friday, April 26th. I'm Josie Duffy Rice. And I'm Priyanka Arabindi. And this is What A Day, the show that wants to know, what is the asylum you were raised in? Yeah, Monica Lewinsky this week referenced that Taylor Swift lyric in a post with a picture of the White House. Which I'm pretty sure is the end for everybody else.

Give up. Stop trying. Yeah. She beat you. This is the best Taylor Swift news I've heard in a long time. On today's show, we'll look at why New York's highest court overturned Harvey Weinstein's conviction on felony sex crime charges. Plus, pro-Palestinian protests are spreading to more colleges and prompting more administrators

to crack down. But first, on Thursday, the Supreme Court heard oral arguments in former President Donald Trump's presidential immunity case. It is a landmark case with big implications for both this year's election as well as some of the other criminal cases that Trump is facing. Trump and his lawyers want the court to rule that he is immune to federal prosecution and to toss out the federal charges that he is facing for plotting to overturn the 2020 election. And Trump's lawyer, John Sauer, really went for it during arguments. Sauer tried to assert that there is almost no situation under which a sitting president can face criminal charges, not even ordering a military coup or sharing nuclear secrets.

This is just what the founders wanted. Absolutely. Just exactly what they were going for. Just what they were going for. They left the England monarchy and they were like, let's just do another authoritarian thing. Yeah. Why not? Run it back. It's fine. Why not? After nearly three hours of oral arguments, most of the justices seem to agree that presidents must have at least some immunity from criminal charges, but not the absolute immunity that Trump seems to be looking for here. But the court's conservative majority also signaled that it may send the case back to the lower courts. That would likely delay Trump's trial until after the election. So if he ends up winning in November, he could potentially

make this whole case go away. To talk more about all of this, we called up friend of the pod, Leah Lippman, who is also the co-host of Crooked's Strict Scrutiny podcast, I started by playing her a key exchange from oral arguments between Trump's attorney John Sauer and Justice Sonia Sotomayor. If the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him, is that within his official acts for which he can get immunity? It would depend on the hypothetical, but we can see that could well be an official act. It could. And why? Because he's doing it for personal reasons.

So Leah, remind us how we got to this moment where a Supreme Court justice is asking about things like whether or not a president should be immune from selling nuclear secrets, having a political rival killed, or ordering a military coup. How did we get here? I mean, I think it's important to just pause over the fact that we are here because in some ways, this is what authoritarians do. They normalize completely bonkers conduct that is utterly inconsistent with any sensible conception of the rule of law and democracy and try to make it seem more legitimate through legalistic technical terminology. And how we got here is an authoritarian, curious political movement decided they wanted to hold on to political power even when they lose elections. And so they went

in search of legal theories that would allow them to do that. And that is the case that is now at the Supreme Court. And that unfortunately, you know, several Supreme Court justices, possibly a majority of Supreme Court justices seem like they are willing to ignore the actual facts of the case and just pretend that the real risk is holding people accountable for attempts to overturn the results of a valid election. Right. And how close now does the Supreme Court seem to be to declaring that a president is actually above the law? It seems like they are not going to embrace Trump's full, most extreme version of immunity, that whenever a president does something exercising the power of their office, it is an official act that is entitled to immunity from criminal laws. But they are likely to embrace some narrower version of immunity that imagines there is some set of official acts or official conduct that are not exclusive powers of the president, like pardons or vetoing laws, for which the president is still entitled to immunity. And what makes that so strange is that this case does not remotely come close to anything resembling stuff within the

president's official acts. So it's completely unnecessary for the court to say, well, let's establish a legal test and then require the courts below to determine whether this fell within the scope of the president's official duties. No, everybody knows it didn't. And there's no point in just prolonging this. Yeah, to your point about what presidents have immunity for during the hearing, Justice Katonji Brown Jackson was kind of trying to get the attorney to understand this idea of the president being above the law. But then much of the conversation was line drawing.

Like everybody seemed to agree that the president does have some presidential immunity in some situations, but maybe not complete immunity. So based on the arguments, where do you kind of see the justices coming down on this, maybe drawing that line? I think if this was a normal case that didn't involve Donald Trump and the potential for his reelection in 2024, the court wouldn't say anything about that issue. It would just say, we don't have to decide the legal standard. We don't have to say anything about what the scope of presidential immunity is in future cases that might involve some difficult line drawing problems, because whatever the scope of immunity is, again, attempting to overturn the results of a valid election while you are the incumbent, that's not an official activity. But if I had to guess what the court is going to say is there's some legal standard

for official acts, it might turn on whether something is reasonably or plausibly related to the scope of the president's lawful duties under both the Constitution and federal law, and also some assessment of the president's object, that is, the president's intent or purpose in carrying out some scheme. And then they will say, that's a legal test. You lower courts need to conduct that legal test as to all of the allegations in the indictment to determine whether they are outside or inside the scope of the president's official activities. And if they are inside the scope of the president's official activities and therefore entitled to immunity, then you courts have to determine whether they could nonetheless be introduced

at the trial in order to establish the president's motive or intent, even if they couldn't form the basis of criminal liability. We don't know when the justices will ultimately rule here, but how will the timing of their decision potentially affect special counsel Jack Smith's ability to bring this case before the election? I mean, it's not looking good. I think in a best case scenario in which they just straight up affirmed the Court of Appeals decision and said, you're right, there's no immunity here. If they reached that decision by the end of May, then there was some possibility of a trial before the election because Judge Shutkin had said there might need to be like 80 some days of pretrial proceedings in order to get a trial actually off the ground and running. If instead, the Supreme Court says, well, you, lower court, need to apply this new legal test to the allegations in the indictment and then determine whether any official acts can nonetheless be introduced at

trial, that's going to be adding on a whole set of legal determinations for which there will have to be briefing, potentially argument, and whatnot on top of of the 80 some days of pre-trial proceedings that Judge Chutkan was already envisioning. And that just makes the possibility of a pre-election trial, I think, non-existent. It sounds like what you're saying is something that we've heard talked about in the past couple of weeks. Like even if the justices don't hand Donald Trump a clear win, even a loss could actually work in his favor. Is that right? Yes. So even if they reject his broadest form of immunity, if they do anything other than straight up affirm the Court of Appeals decision and generate some additional legal process, that's a huge win for

him because it just allows him to delay. And that is his goal. I mean, at the end of the argument, his lawyer did not deign to offer a rebuttal because I think he made the judgment that there was a majority of justices who were going to give him some additional delay. And that was good enough. So do you believe the court could still surprise us in its decision? I mean, in some alternative universe in which these justices were not the justices on the Supreme Court, sure. But when you have the chief justice, even he was floating the possibility of a remand that is requiring some additional legal proceedings by the courts below before proceeding with trial. I don't see how you get to five justices to just affirm the Court of Appeals decision and say no immunity here and

allow a trial to proceed. I also just wanted to know who you think the swing votes on this might be. Was there anybody where you kind of felt like, especially of the conservative justices, obviously, where you felt like they might side with the more liberal interpretation of this question? The justice who made some effort to sound reasonable and interested in the law was Justice Barrett. And she did so when she read through the allegations in the indictment and asked Trump's lawyer, do you agree that these

allegations are not official acts? And in some instances, the lawyer said yes. And so she seemed to be floating a possibility of look, if it's clear that there's a bunch of stuff in this indictment that just could not be official activity, why don't we just say, like, you can allow the trial to proceed on the allegations that are conceitedly not official acts? And so I think she was probably closest to being able to look at the actual facts of this case and, you know, approach it as a not completely unhinged person would. Also, you know, Justice Clarence Thomas joined these hearings in spite of many concerns about

his wife's participation in efforts to overturn 2020 election results herself. How does that affect the way that you and the public should understand these hearings? I think the public should rightfully understand this as just a joke. It is all political machinations to run out the clock, help Trump and increase the possibility of him being reelected president, like the lack of engagement with the facts of this case, coupled with their throwing out just wild hypotheticals that again, allowed them just to ignore what actually happened and what was alleged to have happened in the indictment was just absurd. And if this, again, like was a normal case, the court would just say, there's nothing for us to decide here because this doesn't come remotely

close to the line. So what point is there for us establishing a legal standard when that doesn't matter to the ultimate outcome or resolution of this case. I mean, Clarence Thomas opened one line of questioning, suggesting that this case maybe isn't a big deal because a bunch of presidents have done coups. And so they weren't prosecuted. So can't Trump do a little coup too? I mean, it was just wild. And this is how they're engaging with the case. I mean, you had Neil Gorsuch saying, well, couldn't a president organize a civil rights protest on the lawn of the Capitol and delay a legislative vote as if that was remotely equivalent to what Trump did on January 6th and in the lead up to that. And that was how they were engaging with

this case. And I think the public should just view that as an utter joke. That was our conversation with Leah Lippman, the co-host of Strict Scrutiny. You can find that show anywhere you get your podcasts. We'll be sure to follow up as soon as the court issues a decision. More on all of this very soon, but that is the latest for now. We will 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 get to some headlines. Headlines.

College campus protests for Palestine have spread to more campuses. Police arrested hundreds across the country, including 93 protesters at the University of Southern California on Wednesday night. And the school announced the next day that it canceled its main stage commencement ceremony. This is the same group of students who didn't get a high school graduation because of COVID. So it is, that's tough for these kids. It's really tough. That also came after the fallout when it barred valedictorian Asna Tabassum from speaking over, quote, safety concerns. And on Thursday, police here where I am in Atlanta violently broke up a protest at Emory University and arrested 28 people, including professors.

Videos appear to show police tasing protesters. Meanwhile, new polling from Bloomberg shows declining support for sending aid to Israel. Roughly half of people they polled in seven swing states agree with aid. That's a drop of 10 percentage points from how they felt in November. And Bloomberg notes that this means it's a growing issue for Biden heading into this November's election. An Arizona grand jury on Wednesday indicted 18 people over a scheme to overturn the results of the 2020 election there. Among the folks indicted are some infamous Trump administration characters like former Chief of Staff Mark Meadows and Trump's former lawyer, Rudy Giuliani. They are accused of pressuring election officials and submitting

documents falsely claiming that Trump won. The former president himself was named as an unindicted co-conspirator, but was not actually charged by the state's attorney general. Arizona is now the fourth state where Republicans face these charges following Georgia, Michigan, and Nevada. There is still an ongoing investigation in Wisconsin. Manhattan District Attorney Alvin Bragg said in a statement that he plans to retry disgraced producer Harvey Weinstein on sex crime charges. That's after New York's highest court overturned Weinstein's rape conviction yesterday. The high court found that Weinstein was not given a fair trial in 2020 when he was found guilty of sex crimes against two women. According to yesterday's decision, the judge that Weinstein was not given a fair trial in 2020 when he was found guilty of sex crimes against two women.

According to yesterday's decision, the judge in Weinstein's original trial made the, quote, egregious error of allowing other accusers to testify in the case. That's because their testimony surrounded alleged wrongdoing that Weinstein had not been formally charged with. This all might sound like it came out of nowhere, but many legal analysts knew that prosecutors took a huge risk by letting witnesses testify about allegations outside of the case. Lindsey Goldblum, a lawyer who represented some of Weinstein's accusers, released a statement yesterday and said the reversal will, quote, undoubtedly deter future sexual assault victims from coming forward. But the reversal does not mean Weinstein is getting out of prison. He was also convicted of rape in California in 2022, and he still has to serve a 16-year prison sentence there.

Weinstein is expected to challenge his California conviction as well next month. And finally, Apple is stumbling in its attempt to make your Zooms even worse through virtual and augmented realities. The company's Vision Pro headset is so unpopular that it cut this year's shipment of the device by nearly half. That is according to tech analyst Min-Chi Kuo. He reported earlier this week that Apple expects to only sell 450,000 units at most this year, which is down from the original projection of 800,000. That is wild that they thought 800,000 people would just waltz in and buy these wildly expensive

goggles that have like no use. I know. Anyways, for the uninitiated, the Vision Pro headset launched in February and it looks like a pair of ski goggles, but it costs way more. The price tag is $3,500. With them on, you can do things like take VR tours of houses on Zillow, which I feel like is an under-hyped feature. That actually is very intriguing to me. But being in augmented reality Zoom meetings with your digital avatar is of less interest, I would say. I would agree.

We here at WOD know that Silicon Valley really wants to make high-tech headgear a thing. We have never forgotten Google Glass, so there's that. But we do have some advice. People will only spend thousands on something that gets them further away from Zoom. So try again, Apple. Yeah, they need to make a, like, rotary phone that costs $3,500. Sign me up. And those are the headlines.

One more thing before we go. It is risky to be critical of Taylor Swift's music, but Ira and Louis love to pod on the edge. On the latest episode of Keep It, they dissect Swift's highly anticipated album, The Tortured Poets Department. They are like English teachers with a red pen and they won't stop until every Charlie Puth mention and lyrical British boy lashing has been covered.

Make sure to tune in and subscribe to Keep It so you never miss a pop culture take. That is all for today. If you like the show, make sure you subscribe, leave a review, ditch your VR goggles, and tell your friends to listen. And if you are into reading and not just memeable Taylor Swift lyrics like me, what a day is also a nightly newsletter. Check it out and subscribe at crooked.com slash subscribe. I'm Priyanka Arabindi. I'm Josie Duffy Rice. And congratulations, Josie. Josie's podcast Unreformed was nominated for a Peabody earlier this week, which I'm sorry.

That's just insane. We bow down to you. Thank you. I wish you were the judge panel and I would definitely win. I wish I was a judge panel too. How do I get on there? Forget my campaign for a Weppy. I've moved on.

Set my sights higher. Peabody's higher Priyanka. Momodo 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 Adrian Hill. Our theme music is by Colin Gilliard and Kashaka. David Axelrod, the founder and director of the University of Chicago Institute of Politics and CNN brings you the Axe Files go beyond the soundbites and get to know some of the most interesting players in politics Axe Files is a series of revealing interviews with key figures in the political world new episodes come out every Thursday listen to the Axe Files from CNN

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