What Happens To Trump's Legal Cases Now?
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I went back to actually check when we first met because I thought, oh, it was like a year and a half ago. No, it was President's Weekend 2024. It just seems like it's been such a long year. Like that was when we were in studio together? Yes. Yes. Oh, my God. Another reminder that I'd be a terrible witness, but also just it's been a long year. ♪

Hello and welcome to the FiveThirtyEight Politics Podcast. I'm Galen Droop. Think back, if you will, to the beginning of 2024, before Biden's infamous debate, before the candidate swap, and before Trump won the election.

It seemed like one of the most significant hurdles for then-candidate Trump might be his mounting legal troubles. He was facing four separate criminal indictments and civil liability as well. In fact, an ABC News poll from May found that 16% of Trump supporters said they'd reconsider their backing if he were convicted of a felony, and 4% said they would withdraw their support altogether.

At the time, those numbers seemed like they could have real consequences for the former president. Fast forward to today, and the political landscape looks very different. The chaos of this year's campaign shifted the nation's attention away from Trump's legal battles in ways that few could have anticipated. And what once seemed like a central issue to the election became more of a footnote.

But while those cases may not have defined the election, some of them may still have some ramifications for Trump and his presidency. So today we are asking what will become of Trump's legal situation now that he's won the election.

To help us unpack all of that, we're joined by friend of the podcast, Jessica Roth, professor at the Cardozo School of Law and former federal prosecutor. Welcome back to the podcast, Jessica. It's great to be here. Okay, so we were just discussing this before we started rolling, but the first time we ever spoke was just 10 months ago in February of this year. And I asked you back then, the first time we ever talked, what would happen if

if former President Trump won re-election and all of these legal cases were still ongoing.

And at the time, what did you tell me, Jessica? I said they would all go away. The criminal cases would go away if he were reelected. And do you still believe that's the case today? Yes. In fact, the two federal criminal cases that are, I think, the two most serious cases that were brought against him by prosecutors already have gone away. They have been dismissed. That's the January 6th case brought in the District of Columbia and the case in Florida for a

unlawful retention of national defense information. So although it has nothing to do with the merits of the case, the special counsel moved to dismiss the January 6th related indictments in the District of Columbia in deference to a standing Department of Justice policy that says that a sitting president of the United States cannot be subject to criminal prosecution. The district court very quickly granted that motion, so that case has been dismissed.

without prejudice, which we can talk about what that means. In the Florida case, Judge Cannon had already dismissed the indictment against Mr. Trump and his two co-defendants based on her finding that Jack Smith had not been lawfully appointed

special counsel. That decision was pending and is pending before the 11th Circuit Court of Appeals. But as to Mr. Trump, the special counsel after the election moved to dismiss the appeal again as to him in deference to that Department of Justice policy against prosecuting a sitting president. So those are the two federal criminal cases. In Georgia,

The case is essentially on ice because the trial court had found that Fannie Willis could remain on the case. Her office could remain on the case. Although Nathan Wade, who had been appointed as a special counsel to help her prosecute that case against Trump and 18 other defendants, because of their romantic relationship and alleged conflicts of interest for Fannie Willis,

The trial court said that Nathan Wade had to go, but she could stay on the case. That decision is now pending before an appellate court in Georgia, which was supposed to hear oral argument in early December. They canceled the oral argument, but they still have that decision.

issue under consideration. So there hasn't been a formal dismissal in Georgia of the case, but it's on ICE because of that pending appeal about disqualification. And Trump has filed a motion to dismiss the case as well because of his election. And so that leaves us with the New York case, which we can turn to next.

Yeah, so I want to get into more of the details surrounding all three of those cases. But we might as well begin to dig in with the New York case, because that is the one situation where Donald Trump was actually convicted. So this is the felony case brought

by Manhattan DA Alvin Bragg, which alleged that Trump falsified business records in order to pay Stormy Daniels to keep quiet about their sexual relationship during the 2016 election campaign. He was convicted on May 30th, making him the first ever former president to be convicted of a felony. The judge delayed sentencing in that case for months.

What happens now? So there are several things pending before the trial judge in the New York case that are now fully briefed. One is a motion by Trump filed after the election arguing that the entire case should be dismissed because he is soon to be president. He is currently president-elect and that any ongoing criminal proceedings in the New York case would unduly interfere with his ability to characterize

carry out his very weighty responsibilities. So that's the first issue pending before the judge is should he dismiss the case in its entirety in light of Trump's status as president-elect.

The second motion that's also pending before the judge, that actually was briefed earlier, before the election, was a motion to dismiss based on the Supreme Court's decision granting finding that former presidents are entitled to immunity from criminal prosecution for most official acts taken while they are in office.

Trump's lawyers argue that there was evidence of official acts that was introduced in the New York hush money trial. The Supreme Court put limits on the use of evidence of official acts to prove charges that were unofficial. And because Trump says such evidence was introduced in the New York case, that the verdict must be set aside.

So that's the motion based on the presidential immunity doctrine for acts taken while in office, as distinct from the motion that the case just can't go forward because he's currently president-elect and soon to be president. So the trial court has to rule on both of those motions. And if the court were to deny both motions, then the court might proceed to sentencing. So...

He could still be sentenced while president in New York State? That's one of the issues that the court has to decide. The government says that he could be sentenced, that it would not be such an imposition on his time and his ability to remain focused on his duties to be subject to a sentencing proceeding. Now, the district attorney's briefing on this suggests that they are not pushing all that strongly for the sentencing to proceed.

while Trump is president, if that's when, in fact, the sentencing were scheduled to occur. The district attorney is also suggesting that the sentencing could be held in abeyance until after Trump finishes his four-year term. What they're really arguing in the context of that motion about whether or not, as a matter of timing, this case can go forward is how much of an imposition on Trump's time and attention would a sentencing need.

be during this transition period and while he is in office? And then there's the question of would the sentence itself, if it were imposed and if he were required to serve it, whatever it is, while he is president, how much of an imposition would that be on his time and attention? How much of a distraction would it be?

OK, so the answer broadly to the question of what happens to all of Trump's legal troubles is that they go away. But Trump isn't going to be president forever. Does that mean that they go away for now or they go away, period? Well, they go away for now as a matter of progress.

principle, which is to say that Jack Smith dismissed, for example, the D.C. case without prejudice, leaving open the possibility that when Trump leaves office, that the Department of Justice could try to revive those charges. But I think

as a realistic matter. It is more of a theoretical than a practical real possibility. But there is no legal bar to those federal cases being resuscitated in the January 6th case.

One question would be whether the statute of limitations would be deemed to have run. And so to resuscitate the cases as a legal matter, the prosecutors would have to persuade a judge that there had essentially been equitable tolling of the statute of limitations while Trump was in office.

So there are various legal hurdles that would have to be overcome to resuscitate those charges. Of course, on the Florida case, if Judge Cannon is right as a legal matter that Jack Smith was not lawfully appointed, then I think that there'd have to be new charges brought by a prosecutor who was lawfully appointed. So there are all these hurdles that I think when you put them together make it extremely unlikely.

that those federal cases would be brought again. When we talk about the state cases, right, the Georgia case is this sprawling case with so many defendants. And now this question of whether or not Fannie Willis's office can continue in the case. And if she can't, then it has to be reassigned to another state prosecutor's office within Georgia. So there's just a whole host of

practical issues there, not even touching the immunity issues, right, of whether Trump would be deemed to be immune from prosecution for the charges in Georgia or some portion of the charges in Georgia. Same thing about the case in D.C. We never got to an adjudication of which acts would survive the Supreme Court's immunity ruling. So all that said, the New York case is really the only one that got far enough along where I think we're realistically talking about potential consequences

consequences for Trump as a result of that conviction by a jury. And the question is, will it go forward now or will it go forward after he serves his term? His lawyers are saying that the whole thing should be dismissed, not just held in advance. They're saying it should be dismissed for a whole host of reasons in addition to those we've already talked about.

And of course, in that case, it seems even if eventually the court goes forward with sentencing, the repercussions for that conviction are not all that severe. It's unlikely to carry jail time, right? So even if Trump were not president-elect and soon to be president, I think the likelihood of jail time for these convictions, given that he has no prior criminal history, was small to begin with.

But now when you add on the practical difficulties and frankly, the separation of powers and supremacy clause issues, the legal issues involved in potentially imposing a prison sentence on somebody who is president-elect and soon to be president, that just makes it all the more difficult legally and practically to actually contemplate a prison sentence. And one of the things that was quite interesting to me in the most recent filing from the district attorney's office in New York is

is that they are really not pushing for a sentence of imprisonment. Among the many arguments they make for why sentencing could go forward now is they say, Your Honor doesn't have to impose a sentence of imprisonment. You could impose essentially no sentence other than a fine or maybe unconditional discharge. Just essentially the conviction itself is enough, right? And so I don't read them to be pushing hard for a sentence of imprisonment.

In part, I think, because they are trying to strip away some of the arguments that Trump would make and has made for why he couldn't be sentenced to imprisonment.

You know, I think folks will look at the documents case in Florida and say, oh, Judge Cannon is more of a partisan actor. It's questionable whether or not Jack Smith really was appointed in an illegal fashion that, you know, she's viewing the facts on the ground in a way that will be most likely to get her to the conclusion of this case should be dismissed. And folks can make up their own minds about that. But Jack Smith himself seems like

he would want to get a conviction of the former president in the January 6th case. But he himself filed to dismiss that one. So what is the rationale there? Yeah, so it's really important that people understand what the rationale is for Jack Smith having moved to dismiss the D.C. case. It's the same rationale in the Florida case, why he moved to dismiss the charges there against Trump. And that is that there is a standing policy by the Department of Justice based on two memoranda—

that were issued by the Office of Legal Counsel within the Department of Justice, one in 1973 and one in 2000, which basically opine in lengthy detail and constitutional analysis that a sitting president of the United States is not susceptible to indictment or prosecution while that president is in office. And there are a lot of reasons for this, some of them practical, including that the president sits atop the executive branch, which of course is

Therefore, it means he's on top of the Department of Justice. But then the other considerations have to do with the burdens that even an indictment bring and impose on the presidency in terms of distraction of the president's time and attention in having to assist his lawyers in preparation of a defense, attend court proceedings.

because unlike civil cases, there's less flexibility in criminal cases and particularly criminal trials in terms of when witnesses are called or when matters are scheduled. So there would be these distractions on the president's time and attention. And also those opinions talk about the opprobrium, the stigma that would attach to having pending criminal charges sort of hanging over the president's head that would get in the way of sort of

public support and the president's ability to conduct both domestic and foreign affairs with this stigma of criminal prosecution hanging over his head. And so for all of these reasons, in addition to sort of a separation of powers concern, that it would be inconsistent with our constitutional structure to have the

courts, Article III courts, which grand juries are part of and the courts are part of, essentially controlling the body of the presidency, exercising control over the president even during the duration of the trial. And then if there were a possible sentence of imprisonment, that it would be, again, inconsistent with the constitutional structure to have the president, who is this singular authority in our constitutional structure, being constrained by

by a co-equal branch, which is the judiciary. And so that's the rationale for why the Department of Justice has since 1973 taken this position that they cannot prosecute a sitting president and also opined they couldn't even indict a sitting president because that charge would be hanging over the president for the duration of their presidency. So two questions now, does that rationale apply to a president-elect?

It's never before been extended to a president-elect. And then the question will be with respect to the New York case, does the same rationale apply to a state prosecutor? And I think the answer is going to be clearly yes. And secondarily, would a sentencing, especially one where there was no carceral sentence imposed,

would that impose the same burdens on the president described in the OLC memo? And last thing I just want to say is that before dismissing the cases in D.C. and in Florida against Trump, the special counsel reached out to the current people at the Office of Legal Counsel to ask whether they thought that that memo applied in this situation to preclude moving forward

on the federal cases against Trump, and the OLC said it did. And so Jack Smith confirmed that this was still the guidance from the Office of Legal Counsel that had applied in this situation, and that's why he moved to dismiss. It had nothing to do with the merits of the charges.

We know a lot about what happened on January 6th because of the House investigation and also because of documents that the special counsel had already produced. But presumably there's still stuff out there that we've not learned about that we would have only learned about had the case gone to trial. Since this has now been dismissed,

are we going to get some sort of conclusive report on what the special prosecutor did uncover during this entire investigation that led to an indictment? We may. The special counsel regulations that govern Jack Smith's office require that the special counsel, upon the conclusion of his work, write a report that

explaining his prosecution and declination decisions. That's a confidential report that is submitted to the Attorney General of the United States, who then has the authority to determine how much of it, if any, to release to the public. Attorney General Merrick Garland has pledged transparency with respect to such reports. And in fact, he has issued them to the public. For example, the Robert Herr report that got a lot of news about the

hers investigation of President Biden and his retention of classified information after he left office. Garland released that to the public. So Jack Smith's required to write this report. He sends it to Merrick Garland. Merrick Garland determines how much to release. There will probably be some redactions for grand jury material, which can't be made public. There'll be a review by the national security and intelligence agencies to see if there's any classified information that can't be released to the public.

But other than those two categories, and also perhaps redacting names of some people who have not yet been identified in indictments, it should be, I would imagine, released to the public. And it may include some details that we do not yet know. That said, it's entirely up to Jack Smith and his discretion how much detail to include in the report. Given that we've had these voluminous speaking indictments, that there have been briefings that's extensive, it's not clear how much more would be in this report.

Or if he might just say, see my previous indictments and my previous briefing, I don't have much more to add. Today's podcast is brought to you by SelectQuote. In an uncertain world, life insurance can provide just a little bit of certainty. SelectQuote is one of America's leading insurance brokers with nearly 40 years of experience helping over 2 million customers find over $7 billion in coverage since 1985.

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Because businesses that grow, grow with Shopify. Start your success story today. Sign up for a $1 per month trial period at shopify.com slash 538. That's the numbers, not the letters. Shopify.com slash 538. We've mostly covered Trump's criminal liability, but he also faces some significant civil liability to the tune of hundreds of millions of dollars. So,

If we go back to New York for a minute, in February, a judge ruled that Trump owed $355 million plus interest for inflating his company's assets, and Trump ended up appealing. Where does that case now stand? I mean, is he on the hook for $400 plus millions of dollars?

That case is on appeal to the intermediate court in New York State, the Appellate Division First Department. They heard argument on that, I think now several months ago. And so at any moment, we could have their decision on whether they're going to uphold that verdict. And then, of course, whoever loses can appeal that to the New York Court of Appeals, New York's highest court.

So stay tuned on that one. I mean, we could have a decision at any moment. As far as I know, Trump hasn't filed any motions to dismiss that case based on presidential immunity or his status as the president-elect, soon to be president. I think he did send a letter to the attorney general of New York this week asking her to voluntarily dismiss the case, essentially to bring unity to the country. And I think

nodding to some potential arguments he might make that it has to be dismissed legally for the same reason he's arguing that the criminal cases need to be dismissed or the New York criminal case needs to be dismissed. So I imagine he may make a formal motion to that effect as far as I know he hasn't yet made that motion.

I mean, based on your legal knowledge and understanding of New York state politics and courts, I mean, what do you think happens here? Well, I think we'll get a decision fairly soon from the appellate division. I'd like to think that. And then I think we'll see...

An appeal from whoever loses. And I don't think there's a good argument to dismiss it based on his status as president-elect. The case law thus far, right, the precedents are pretty clear that a president does not have...

Immunity from a civil lawsuit, although the president enjoys civil immunity from liability for official acts taken within the outer perimeter of his official duties in terms of actually having to attend a civil trial.

proceeding for based on unofficial acts, the courts have been pretty clear that there's no such immunity, right? This was before the Supreme Court in the Clinton v. Jones case, where then President Bill Clinton was facing a civil lawsuit against

Brought by Paula Jones, who had been a former Arkansas employee, alleging he had sexually harassed her, retaliated against her, defamed her. So she brought that lawsuit against him. And while he was president, he moved to dismiss it and said he shouldn't be involved.

held responsible. He shouldn't have to attend in any way or participate in civil proceedings against him, even if they were based on unofficial acts while he was president because it was too much of a distraction. And the U.S. Supreme Court rejected that entirely. So there's good precedent also

in the case involving the grand jury subpoena sent while the district attorney of New York, then Cy Vance, was investigating Trump. That was a criminal case, but there the Supreme Court also said that Trump had to comply with the grand jury subpoena for documents, that that wasn't too much of an intrusion on him while he was president. That was in the first Trump administration. So I think that precedents are very strong that Trump would still have to participate in civil lawsuits. Of course, the case...

brought by the attorney general has already gone to verdict. So that makes it even stronger that the burden on him wouldn't be so great to just participate in appeals going forward. So that case, I think, goes forward through the appeals process. And then, of course, there's also the cases brought in DC, brought by lawmakers and members of the Capitol Police who were injured in the January 6th riot against Trump and others, suing for damages based on those actions.

Those cases are also civil and are going forward. And that's where we may also see more accountability and also details brought forth about Trump's involvement in those acts, many of which overlap with the criminal charges that were brought by Jack Smith related to January 6th.

Rounding out those civil cases, E.G. and Carol was awarded $5 million and then $83 million in a case against the former and future president. That seems like it's been settled, but has it been?

So there were two separate verdicts, as you just described, against Trump in favor of E. Jean Carroll awarding her millions of dollars. Because they were two separate trials, there are two separate appeals. So Trump appealed the first verdict to the Second Circuit Court of Appeals, which is the intermediate federal court in that region. They have heard oral argument, but they have not rendered a decision.

And then for the second verdict against Trump in favor of E. Jean Carroll, I believe that one is on appeal, but I don't know that it's fully briefed yet and they have not heard oral argument on it. So it looks like Trump may still do

be on the hook for civil liability, even once he is president again. There are a couple legal questions that I still want to ask you while we have you here before we let you go. And the first is pertaining to the Supreme Court's ruling earlier this year that presidents have immunity for official acts. He's already used that in some of the cases that we have discussed here. And

I imagine that it may have some impact on what his second term in office looks like. Folks, you know, his critics will say he's going to be completely untethered from any bounds of, you know, criminal liability, et cetera, et cetera. From where you stand, I mean, how different could a second Trump presidency be because of that Supreme Court ruling? The Supreme Court in that immunity ruling? Yeah.

that there is a core of presidential activities, things that are entrusted to the president by the Constitution, such as the pardon hour or the appointment of officers of the United States, that are essentially beyond any review by a court. And then there's all these other official acts

that are not specifically entrusted to the president by the Constitution, but that the president takes within the outer perimeter of his official duties that are presumptively entitled to immunity from criminal prosecution, where there's at least the possibility that a prosecutor could charge crimes based on such conduct.

if they could show that it would not unduly intrude on the president's ability essentially to carry out his duties to bring a prosecution in those circumstances. But the language is a bit cagey. The court said with respect to those other official acts,

there's at least presumptive immunity that could be overcome, leaving open the door that it might later hold its absolute immunity, just like those things sort of at the molten core of the president's official duties. And so all of that leaves a lot of room for someone who is inclined to do so, to take this expansive view of their immunity from criminal prosecution and run with it without concern about criminal prosecution consequences to them.

That said, the immunity holding doesn't apply to other people other than the president. And so one has to imagine that you, to make this work, you know, a president who seeks to sort of run with this unfettered,

immunity would need the assistance of people who wouldn't be entitled to such immunity. And so would they be willing to commit crimes, what they deem to be crimes with him? They'd be potentially subject to prosecution. Now, I suppose one could say, spitting this out, well, then the president could pardon them, right, before leaving office. So they wouldn't have that theory.

But I choose to put more faith in people and that it's not simply about sort of what can they get away with. I hope that there will be people even in this administration who will take the oath to uphold the Constitution and their duty to the public and to faithfully carry out the law seriously. And that it's not all just about will they get caught? Will they get prosecuted? Would they get a pardon? My fear is really about the character of the people and the

their experience and expertise? And will they know where the red lines are? And will they uphold them?

So at the end of the day, criminal law, criminal prosecution, criminal responsibility is important as a deterrent. But at the end of the day, I think the most important factor in terms of how the presidency and the executive branch carry out their power is the character and expertise and training and professionalism of the people who hold those offices. Speaking of

pardons. You know, we recently saw that Biden pardoned his son, Hunter, and today he commuted the sentences of 1500 people, which is the most of any president in a single day. And

I don't think you can necessarily compare those two actions in any way. But I'm just curious, more broadly speaking, how norm breaking has Biden's use of the pardon power been particularly as pertains to Hunter? It is norm breaking. I don't think there's been any precedent for a president pardoning his own son. Bill Clinton, I think, pardoned his brother, but this is a president pardoning his son.

What I found most disturbing about the pardon of Hunter was the language that the president used in the statement that accompanied the pardon, in which he accused the Department of Justice of having been politicized. I understood as a human being and as a parent the pardon of his son, but I was distressed as someone who's concerned about maintaining the professionalism of

these institutions, including the Department of Justice, about that language. And in terms of norm breaking, as I said, it's unprecedented to pardon your own child. The language was disturbing. And I'm glad to see that the president is turning his attention now to other people who are not personally connected to him and to people who I hope have gone through the process. There's an official process for

obtaining a pardon or clemency. And so I think one of the things that's norm-breaking about pardoning your own child is not only that it's a member of your family, but obviously that person presumably has not gone through the process of seeking a pardon through official channels subject to the review of professionals who can be somewhat objective about whether or not the pardon or the clemency is warranted in those circumstances. Yeah, I mean, speaking of the professionalism of the department,

of justice. Throughout Trump's campaign, he said that he was the target of a weaponized justice system and that he himself will go after his political opponents. Now that he's headed back to the White House, how do you see this playing out? I mean, even most recently, he sort of threatened former Representative Liz Cheney. Is it as simple as a president says, oh, let's

Let's bring some charges against Liz Cheney. And charges appear like even if even if you don't have any respect for the independence of the Department of Justice, how does this play out?

Well, he would need the cooperation of prosecutors and FBI agents to actually bring charges. And the problem will be that there is unlikely to be any crime that they can actually charge, right? So that's a constraint. The first line of defense ought to be the prosecutors and the agents saying, this is politically motivated. And for that reason alone, right, I'm not going to pursue it. But an additional reason to push back would be,

There's no crime here to investigate. What's the crime? And even if they were to pursue it on...

information that didn't amount to a crime, at some point it would go before a grand jury if it was a case that required indictment by grand jury. Therefore, the grand jurors hopefully would say, "There's no crime here. We're not going to return an indictment." At some point, it would go before a judge and there'd be a motion to dismiss. If it survived that, it'd go before a jury. There are some constraints in the criminal system against unfounded charges.

The problem, of course, is that if you have people who are unethical and unscrupulous, they can make somebody's life hell before any charges are filed just by virtue of investigating them. And the person would have to retain counsel and it can be very expensive. And so that's a tremendous concern. And that's why people are talking about, you know, preemptive pardons for people who are on drugs.

the enemies list of Trump and the potential FBI director, Kash Patel. And I think that's a very, very difficult question. Yeah. I mean, it seems like some of the folks on that quote unquote enemies list have said, you know, I don't want to be pardoned because then it suggests that I did something wrong and I didn't do anything wrong. So if they're going to try this, you know, bring it and let's

let the system be tested. Do you think that's the likeliest outcome here? Or do you see Biden looking at that enemies list and saying, I'm granting pardons in advance, preemptively? I don't know how he's going to come out on this. I don't know if he's going to do it for a couple of select people who say they do want it. I really don't know how this is going to play out.

I have tremendous concerns about doing preemptive pardons, in part because it suggests people did something wrong. But I also do think in some ways it's norm breaking. And I don't know how effective ultimately it would be because there also could still be congressional investigations of some of these people. I don't think the pardon in any way stops that.

And where do you draw the line on who's on the list? And how do you write the pardon? I mean, one of the things that was norm-breaking about the Hunter Biden pardon was not only that it was for the president's son, but that it was so broad and it covered, I think, decades.

10 year period and essentially anything, any potential crime that Hunter might've committed, right? As opposed to just saying, I'm pardoning him for these two crimes or the crimes in these two indictments, these two cases that have already been litigated, uh,

And so how do you define it? And that troubles me because I think at the end of the day, it also undermines sort of trust in the system and the legitimacy of the pardon power. Yeah. And then, of course, you can't say anything when Trump on his way out of the White House in four years grants broad preemptive pardons to a whole bunch of people in his own administration, for example. Yeah.

You know, final question here, which is when we discussed the Supreme Court's decision on presidential immunity in the summer, one of the things we talked about was that it seemed as though the opinion was written with care, thinking about a potential future in which Trump wins the election and decides to go after his potential enemies, and in particular, Joe Biden.

Now that that has happened, and Donald Trump will be president again, and Joe Biden will be a former president, is this going to become a sort of tool that Joe Biden uses in his post-presidency to avoid any legal difficulty? I mean, do you see this actually coming to bear where that opinion by Roberts that seemed to imagine a future where people just start prosecuting the party that's just left power? How do you see that playing out?

Well, the way I read Robert's concern and the opinion was that he was trying to prevent the prosecution of a former president, right?

in the first instance. So by declaring this immunity as broadly as the court did, it would forestall a prosecution from being brought at all against a former president. So as opposed to Trump directing his Department of Justice to bring charges against Biden for acts committed while in office and then have Biden assert as a defense the immunity that the Supreme Court just articulated,

I think that what Roberts was trying to achieve was that the charges wouldn't be brought in the first place against Biden after he left office because of the breadth of the immunity doctrine.

So consistent with that, I don't foresee a Department of Justice, even a politicized one, bringing charges against Joe Biden for actions taken while in office. Maybe that is naive of me, but that's not what I see coming. The concern is instead charges brought against all those people who don't have immunity pursuant to the Supreme Court's doctrine and investigations brought of

those people, even if they don't ultimately lead to charges for the reasons I just explained, why it would be, I think, challenging to actually succeed on bringing charges. So that is the problem that's left is obviously all those people are left without immunity. And then we have this sort of unencumbered current occupant of the White House, right, in light of that same immunity decision.

All right. Well, I have a feeling this is not our last conversation, but thank you for enlightening me and our listeners for today. We're going to leave it there. Thank you, Jessica. Thank you. My name is Galen Druk. Our producers are Shane McKeon and Cameron Chortavian. You can get in touch by emailing us at podcasts at 538.com. You can also, of course, tweet at us with any questions or comments. If you're a fan of the show, leave us a rating or review in the Apple podcast store or tell someone about us. Thanks for listening and we will see you soon.

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