SCOTUS Wants To Sign Their Own Death Warrant

Could the highest office in the United States be a shield for wrongdoing, granting the President carte blanche to act with impunity? Strap in as we navigate the tumultuous legal battles of Donald Trump, shedding light on the pressing questions of presidential immunity and accountability that have the nation on tenterhooks. David Pecker's bombshell revelations set the stage for a closer look at the alleged AMI-Trump campaign conspiracy, while the staggering $80 million judgment in the E. Jean Carroll defamation case underscores the gravity of the consequences at stake. In an episode that promises to dissect the audacity of Trump's defense before the Supreme Court, we grapple with the historical precedents cited and the unnerving hypotheticals of unchecked presidential power.

Imagine a president orchestrating a military coup—is it a farfetched screenplay or a constitutional crisis waiting to happen? Our discussion cuts to the heart of this alarming scenario as we wrestle with the limits of impeachment and the specter of criminal responsibility for the Commander-in-Chief. As Justice Katonji Brown Jackson scrutinizes the theory of a president above the law, we probe the structural checks against abuses of power, balancing the potential chilling effects against the perils of unbridled presidential misconduct. The thorny debate over presidential self-pardon takes center stage, inviting a deep dive into the ramifications of such a power play within our democracy. Listen closely to this critical conversation, which not only deciphers the Justice Department's stance and historical precedents but also offers my take on why even presidents must steer clear of criminality.

Transcript

Supreme Court Oral Arguments

Speaker 1 0:00

Hey, this is D-Night from the Part of the Insurrection podcast, and it's been a whirlwind 24 hour stretch here, as we're in the middle of Trump's criminal trial for attempting to illegally influence the 2016 election, and Mr David Pecker from AMI has revealed a number of details about the criminal conspiracy to which he entered into with the Trump campaign conspiracy to which he entered into with the trump campaign. Also, arizona's issued a number of indictments against trump's co-conspirators in the attempt to steal the 2020 election. He can't make that up. He's in the middle of trial for cheating in one election as all of his buddies are getting rounded up for trying to steal another one. How many crimes can one dude commit? I guess we'll find out.

Speaker 1 0:44

Also, trump's managed to have his request for a new trial in the E Jean Carroll case denied, the one where he defamed a woman that he sexually assaulted, which led to an 80 plus million dollar judgment against him. You know, if you don't do the crime, you don't have to do the time. Or an E Jean Carroll's case you don't do the crime, you don't have to do the time. Or, in eugene carroll's case, don't do the crime if you don't want to pay the fine. Um, but that's not all, because there's never enough. Uh, we're also in the middle of trump's lawyers presenting an argument before the supreme court, declaring their precedents should have absolute immunity, and this is based on his DC trial, the one where he is accused of attempting to steal the 2020 election, where he's been charged federally by special counsel Jack Smith. And, man, I got to tell you some of these arguments the Trump's lawyer is making. They are bat shard, crazy, bat shard. To tell you some of these arguments that Trump's lawyer is making they are bat shard, crazy Bat shard. I tell you.

Speaker 2 1:48

Malum in say is a concept long viewed as appropriate in law that there's some things that are so fundamentally evil that they have to be protected against it against. Now I think and your answer below I'm going to give you a chance to say, if you stay by it 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?

Speaker 3 2:32

would depend on the hypothetical, but we can see that could well be an official act it could, and why?

Speaker 2 2:37

Because he's doing it for personal reasons. He's not doing it, like President Obama is alleged to have done it, to protect the country from a terrorist. He's doing it for personal gain. And isn't that the nature of the allegations here, that he's not doing them? Doing these acts in furtherance of an official responsibility, he's doing it for personal gain.

Speaker 3 3:06

I agree with that characterization of the indictment and that confirms immunity, because the characterization is that there's a series of official acts that were done for an awful lot of money.

Speaker 2 3:15

No, because immunity says even if you did it for personal gain, we won't hold you responsible. What you, how could?

Speaker 1 3:25

that be? Do you realize that that is trump's lawyer arguing in front of the supreme court that president biden should be able to launch a drone strike at mar-a-lago and not face criminal consequences for that? You see how ridiculous that is like. What if president biden was man? I'm so tired of the Supreme Court ruling against my administration like this. Well, thank God for president of presidential immunity. And then he calls up SEAL Team 6 and he's like hey guys, you know what to do, go to the courthouse, handle that for me. You see how absurd that is Like. What kind of world would we be living in if a president had presidential immunity? But let's hear some more arguments around some of the specifics of the Trump case in DC.

Speaker 2 4:12

Quiet to the allegations here. What is plausible about the president insisting in creating a a fraudulent slate of electoral candidates, Assuming you accept the facts of the complaint on their face? Is that plausible that that would be within his right to do?

Speaker 3 4:37

Absolutely your Honor. We have the historical precedent we cite in the lower courts of President Grant sending federal troops to Louisiana and Mississippi in 1876 to make sure that the Republican electors got certified in those two cases which delivered the election to Rutherford B Hayes. The notion that it's completely implausible, I think, just can't be supported.

Speaker 2 4:55

based on the face of this indictment, knowing that the slate is fake, knowing that the slate is fake, that they weren't actually elected, that they weren't certified by the state. He knows all those things.

Speaker 3 5:08

The indictment itself alleges. I dispute that characterization. The indictment affixes the word label to the so-called fraudulent electors. It affixes the word fraudulent but that's a complete mischaracterization. On the face of the indictment it appears that there was no deceit about who had emerged from the relevant state conventions and this was being done as an alternative basis.

Speaker 1 5:28

Yeah, we're not going to let that one slide. He's not slick. The Pennsylvania electors made a point to note in the documents that they signed that the caveat was they were to be used in a contingency plan, that they were not necessarily the legitimate electors but the fake electors from the other states who presented themselves as legitimately chosen and certified by the state. Then that would be georgia, wisconsin, michigan and now arizona. Those fake electors presented themselves fraudulently and were indicted as such. He tried to pull a fast one, but no luck there, buddy, let's hear yet more from the Supreme Court oral arguments.

Speaker 5 6:10

Go ahead, go ahead. So you concede that private acts don't get immunity, we do, okay. So in the special counsel's brief on pages 46 and 47, he urges us, even if we assume that there's, even if we were to decide or assume that there was some sort of immunity for official acts, that there were sufficient private acts in the indictment for the trial to go, for the case to go back in the trial to begin immediately. And I want to know if you agree or disagree about the characterization of these acts. As private Petitioner turned to a private attorney was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results, private as alleged.

Speaker 3 6:48

I mean we dispute the allegation, but that sounds private to me Sounds private.

Speaker 5 6:52

Petitioner conspired with another private attorney who caused the filing in court of a verification signed by petitioner that contained false allegations to support a challenge that also sounds private. Three private actors, two attorneys, including those mentioned above, and a political consultant, helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.

Speaker 3 7:15

And petitioner and a co-conspirator attorney directed that effort. You ready to quickly? I believe that's private.

Speaker 5 7:19

I don't want to so those acts you would not dispute, those were private and you wouldn't raise a claim that they were official.

Speaker 3 7:30

As characterized. What we would say your Honor, if I may, what we would say as official, is things like meeting with the Department of Justice to deliberate about who's going to be the acting Attorney General of the United States. Sure, communicating with the American public, communicating with Congress about matters of enormous concern. Thank you, thank you.

Speaker 1 7:39

At least there he's conceded that there are some acts that a person could engage in while in office that would be considered private and not official acts and therefore not subject to presidential immunity. Congratulations on being like a 99 out of 100 in terms of being extreme, as opposed to 100 out of 100. But yes, let's hear another example of what might be considered a private act versus an official act.

Speaker 4 8:06

If a president sells nuclear secrets to a foreign adversary, is that immune?

Speaker 3 8:12

That sounds like similar to the bribery example, likely not immune. Now, if it's structured as an official act, you'd have to be impeached and convicted first before what does that mean if it's structured as an official act? Well, I don't know in the hypothetical whether or not that would be an official act. You'd probably have to have more details to apply the Blazing Game analysis or even the Fitzgerald analysis that we've been talking about or even the Fitzgerald analysis that we've been talking about.

Speaker 1 8:39

It appears as though he is aware of the fact that Trump has been credibly accused of stealing nuclear secrets, along with a number of other classified documents, and there's no telling necessarily what happened to them after the fact. Well, how does he feel about the potential of the president ordering his military to engage in a coup? Should that be subject to criminal prosecution, or should a president have presidential immunity?

Speaker 4 9:00

How about if a president orders the military to stage?

Speaker 3 9:09

a coup pointed out earlier, where there is a whole series of you know sort of guidelines against that, so to speak, like the UCMJ, prohibits the military from following a plainfully unlawful act. If one adopted Justice Alito's test, that would fall outside. Now, if one adopts, for example, the Fitzgerald test that we advanced, that might well be an official act and he would have to be as I'll say in response to all these kinds of hypotheticals has to be impeached and convicted before he can be criminally prosecuted. But I emphasize to the court that Well, he's gone.

Speaker 4 9:39

Let's say, this president who ordered the military to stage a coup. He's no longer president. He wasn't impeached, he couldn't be impeached, but he ordered the military to stage a coup. And you're saying that's an official act.

Speaker 3 9:54

I think it would depend on the circumstances whether it was an official act. If it were an official act, again, he would have to be impeached.

Speaker 4 10:00

What does that mean? Depend on the circumstances. He was the president, he is the commander-in-chief, he talks to his generals all the time and he told the generals I don't feel like leaving office, I want to stage a coup. Is that immune?

Speaker 3 10:16

If it's an official act there needs to be impeachment and conviction beforehand, because the framers viewed that kind of very low risk.

Speaker 4 10:22

If it's an official act, it's impeaching you.

Speaker 3 10:26

Is it? An official act On the way you've described, that hypothetical it could well be, I just don't know.

Speaker 4 10:32

Again, it's a fact-specific context that answer sounds to me as though it's like yeah, under my attest it's an official act. But that sure sounds bad, doesn't it?

Speaker 3 10:42

Well, it certainly sounds very bad, and that's why the framers have a whole series of structural checks that have successfully for the last 234 years prevented that very kind of extreme hypothetical. You mean to tell me, 234 years prevented that very kind of extreme hypothetical?

Speaker 1 10:55

And you mean to tell me that if a president of the United States orders the military to stage a coup, that he can only be held criminally responsible if he's impeached and convicted first? What if the military succeeds in their coup and kills Congress? Who's going to impeach him then? Who's going to impeach him then? Let's hear from Justice Katonji Brown Jackson on the litany of proclamations that Trump's lawyers made in front of the Supreme Court.

Speaker 6 11:32

Why is it as a matter of theory and I'm hoping you can sort of zoom way out here that the president would not be required to follow the law when he is performing his official acts? Everyone else, everyone else. There are lots of folks who have very high-powered jobs, who make a lot of consequential decisions, and they do so against the backdrop of potential criminal prosecution if they should break the law in that capacity. And we understand and we know as a matter of fact that the President of the United States has the best lawyers in the world. When he's making a decision, he can consult with pretty much anybody as to whether or not this thing is criminal or not. So why would we have a situation in which we would say that the president should be making official acts without any responsibility for following the law?

Speaker 3 12:31

I respectfully disagree with that characterization. The president absolutely does have responsibility. He absolutely is required to follow the law in all of his official acts. But the remedy for that is the question could he be subject to personal vulnerability, sent to prison, but making a bad decision after he leaves?

Speaker 6 12:48

office. But other people who have consequential jobs and who are required to follow the law, make those determinations against the backdrop of that same kind of risk. So what is it about the president? I mean, I've heard you say it's because the president has to be able to act boldly. Do you know, make kind of consequential decisions? I mean sure, but again, there are lots of people who have to make life and death kinds of decisions, and yet they still have to follow the law, and if they don't they could be sent to prison, et cetera, et cetera.

Speaker 3 13:22

So I say two things in response to that, both from Fitzgerald. That's the very sort of inference or reasoning that this court rejected in Fitzgerald. No, but let me just.

Speaker 6 13:31

Fitzgerald was a civil situation in which the president actually was in a different position than other people because of the nature of his job, the high profile nature and the fact that he touches so many different things. When you're talking about private civil liability, you know anybody on the street can sue him. We could see that the president was sort of different than the ordinary person when you say, should he be immune from civil liability from anybody who wants to sue him? But when we're talking about criminal liability, I don't understand how the president stands in any different position with respect to the need to follow the law as he is doing his job than anyone else.

Speaker 3 14:09

He is required to follow the law, but he's not if there's no criminal prosecution.

Speaker 6 14:13

If there's no threat of criminal prosecution, what prevents the president from just doing whatever he wants?

Speaker 3 14:18

All the structural checks that are identified in Fitzgerald and a whole series of this court's cases that go back to Martin against Mott, for example, impeachment oversight by Congress, public oversight. There's a long series that Fitzgerald directly addresses this in the civil context.

Speaker 6 14:36

And we think that actually I'm not sure that that's much of a backstop and what I'm, I guess, more worried about. You seem to be worried about the president being chilled. I think that we would have a really significant opposite problem if the president wasn't chilled, if someone with those kinds of powers, the most powerful person in the world, with the greatest amount of authority, could go into office knowing that there would be no potential penalty for committing crimes. I'm trying to understand what the disincentive is from turning the Oval Office into, you know, the seat of criminal activity in this country.

Speaker 3 15:15

I don't think there's any allegation of that in this case.

Speaker 1 15:17

Bro, there is a guy who engaged in all kinds of crimes while he was president. You're representing him. He's on trial right now for criming in order to get into office. He engaged in a bunch of criminal activity while he was in office. He crimed on the way out and continued to crime after he left, and now he's running for reelection so he can get back into office to avoid going to jail. Do you think the crimes are going to stop then? Probably not, but let's hear some arguments from the Department of Justice.

Speaker 7 15:52

I think I would take issue, mr Chief Justice, with the idea of taking away immunity. There is no immunity that is in the Constitution unless this court creates it. Today. There certainly is no textual immunity. We do not submit that. That's the end of the story. The United States v Nixon wasn't a textually based case. Neither was Nixon v Fitzgerald. We endorse both of those holdings, but what is important is that no public official has ever had the kind of absolute criminal immunity that my friend speaks of.

Speaker 7 16:26

Even with respect to the speech or debate clause, it's very narrow. It's focused on legislative acts. It's not focused on everything that a congressman does and it responds to a very specific historical circumstance that basically involved the two other branches, potentially harassing legislators and preventing them from doing their jobs. That's why it ended up in the Constitution. Nothing like that ended up in the Constitution for the presidents, and that's because one of the chief concerns of the framers was the risk of presidential misconduct. They labored over this. They adopted an impeachment structure that separated removal from office as a political remedy from criminal prosecution. This departed from the British model. The British model was you get impeached and criminally prosecuted and convicted in the same proceeding. The framers did not want that. They wanted a political remedy. In case a president was engaging in conduct that endangered the nation, he could be removed. He can't be prosecuted while he's a sitting president. That's been the longstanding Justice Department position.

Speaker 1 17:53

There is no presidential immunity unless this court creates it today. There is no presidential immunity unless this court creates it today. That is the sum of the argument from the range of questions they were wanting answers to, despite the fact that this is supposedly about one question whether or not a president has absolute immunity.

Speaker 8 18:14

On the question of whether a president has the authority to pardon himself, which came up earlier in the argument. What's the answer to that?

Speaker 7 18:23

question. I don't believe the Department of Justice has taken a position. The only authority that I'm aware of is a member of the Office of Legal Counsel wrote on a memorandum that there is no self-pardon authority. As far as I know, the department has not addressed it further and of course this court had not addressed it either.

Speaker 8 18:41

When you addressed that question before us. Are you speaking in your capacity solely as a member of the special counsel's team, or are you speaking on behalf of the Justice Department, which has special institutional responsibilities?

Speaker 7 18:58

I am speaking on behalf of the Justice Department. We're representing the United States.

Speaker 8 19:03

Now, how don't you think we need to know the answer at least to the Justice Department's position on that issue in order to decide this case? Because if a president has the authority to pardon himself before leaving office and the DC Circuit is right that there is no immunity from prosecution, won't the predictable result be that presidents on the last couple of days of office are going to pardon themselves from anything that they might have been conceivably charged with committing?

Speaker 7 19:34

I really doubt that, Justice Alito. I mean it sort of presupposes a regime that we have never had except for President Nixon and, as alleged in the indictment here, presidents who are conscious of having engaged in wrongdoing and seeking to shield themselves. I think the political consequences of a president who asserted a right of self-pardon that has never been recognized, that seems to contradict a bedrock principle of our law, that no person shall be the judge in their own case those are adequate deterrents, I think, so that this kind of dystopian regime is not going to evolve.

Speaker 1 20:09

Let me end with that's a totally moot point, as Trump never pardoned himself, and even if he did, there is a fundamental principle of law that suggested no man shall be the judge in his own case, a principle that has been invoked by our Supreme Court numerous times, numerous times. But let us hear yet another take on the possibility of a presidential pardon to a former president.

Speaker 9 20:37

I think it came up before President Ford's pardon. Very controversial in the moment, yes, hugely unpopular, probably why he lost in 76. Yes, now looked upon as one of the better decisions in presidential history, I think by most people. If he's thinking about well, if I grant this pardon to Richard Nixon, could I be investigated myself for obstruction of justice on the theory that I'm interfering with the investigation of Richard Nixon?

Speaker 7 21:09

So this would fall into that small core area that I mentioned to Justice Kagan and Justice Gorsuch of presidential responsibilities that Congress cannot regulate.

Speaker 1 21:19

Totally disagree. It was a terrible decision. Ford was a moron. He never should have issued that pardon and let DOJ lock Nixon's ass up. Then we wouldn't be in this position where we're having these ridiculous arguments, because clearly presidents would know, as most have over the course of our history, that all you got to do is not engage in any criminal activity, problem solved. But yet here we are.

Speaker 1 21:44

It appears as though the conservative justices are in Trump's bag here. They're probably going to do what they can to bail him out. Obviously they won't be able to, likely won't give him presidential immunity, likely won't give him presidential immunity, but I imagine that they will remand this case back down to DC to let Chutkin engage in more fact finding about what is and isn't an official act. And despite the fact that all we needed was the answer to one question do presidents have absolute immunity? If the answer is no, then everything should proceed. If we ever come to a place in time where we need the judicial system to decide, you know, what specific official acts deserve immunity and what don't, or whether there is immunity for some acts and not others, fine great, figure that out when that time arises, because none of this stuff Trump is accused of would warrant presidential immunity. And if you could give me a follow on my personal podcast, pardon the Insurrection, available everywhere podcasts are found. You can also find us on.