Deep Dive
Shownotes Transcript
Hi, welcome back to Prosecuting Donald Trump. We are back the second time this week. It is Leap Day, February 29th. Yesterday was quite a big day yesterday afternoon in the Supreme Court. And so, Mary, welcome back for the second episode.
Good morning. We guessed we might be back a second time this week, and we are. I wish we had better news to bring, though. So let's dive right in. I'm going to start by just reading the part of the Supreme Court decision yesterday. It's just one page. Order. Let's just call it an order, not a decision. You're right. It is a certiorari granted. And
And then we're going to talk about the substance, meaning what we think the court could do. And Mary, I know you have some really good ideas on that.
And then we'll talk a little bit about timing issues. So we're going to cover both of those. But let's start. I'm just going to read the pertinent parts. As you said, it is an order, not a decision. It's a certiorari granted in Donald J. Trump versus the United States. The application for a stay presented to the chief justice is referred by him to the court. That means that the entire court was referred this application. And
And the application was for a stay. Now, the special counsel's request to treat the stay application as a petition for a writ of certiorari is granted. And that petition is granted limited to the following question, meaning that they have treated the request for a stay as a full application for a sort of a stay and for the court to hear the case all at once. And they only granted it as to this one question, quote, well.
The court then directed the Court of Appeals to continue its stay of the trial court and
And so the Supreme Court didn't actually have to decide its own issue of a stay. It just directed the Court of Appeals to withhold issuing the mandate pending its decision in the Supreme Court. And then finally, it dealt with scheduling. And it said that briefs would be submitted back and forth from both sides. But it said it would hear this case the week before.
of April 22nd, 2024. In other words, almost two months from now, which is about a month longer than the request, the sort of backup plan B request by the special counsel.
who'd asked for the court not to take the case or if it were going to take the case to hear it essentially in the March term, not at the end of the April term. So, Mary, I know that in our discussions that you have some ideas about what the court could do.
Obviously, there are a whole variety of things, but take us through some of your thinking, because there's obviously best case scenarios and worst case scenarios, but there's also some intermediate scenarios on the substance that I know you have really interesting ideas about. Yeah, thanks.
I think it's important to step back and remember how this got to where it is in order to understand that question that the Supreme Court has indicated is the question it is going to take up on appeal. Listeners may recall that when Donald Trump first made the argument that his indictment in the D.C. case, the January 6th related case, should be dismissed on the grounds of
presidential immunity. His argument was based on essentially an argument that I, Donald Trump, should be immune from criminal prosecution for any actions I took within the outer perimeter of my official acts as the president. And
And he was basing that on a civil case, a line of civil cases where the courts have held that for civil liability, a president has immunity for things done within the outer perimeter of his official acts. That civil immunity has never, ever been held to apply to criminal prosecutions.
But he argued everything I am alleged to have done in the indictment was within my official acts. Things like reaching out to state legislators and state legislatures, you know, and talking to them about fraud in the election, reaching out and talking about electors for me going ahead and voting in the Electoral College on December 14th because they needed to preserve the option
in case I would win in those states after litigation found that there was fraud in the election. Communications with my own vice president about what he could do on January 6th. All of these things, he claimed, are within the scope of his official acts as the president
to raise issues of election fraud. So that was his argument. That and an argument with the Supreme Court did not take, which is that at any rate, I cannot be as a former president charged with a crime or prosecuted for a crime unless I have first been impeached by the House and convicted in the Senate. And here I was acquitted. Therefore, you simply can't charge me criminally. That issue, the Supreme Court did not take up. Right.
So listeners will recall that when Donald Trump first moved to have his indictment dismissed in the district court, this is the January 6th related indictment. His argument was that he could not be prosecuted for criminal acts that were arising from things he did within the outer perimeter of his official acts as president.
That is called official act immunity, and it is based on a legal principle developed on the civil side that gives presidents immunity civilly, like from damages liability, right, for a civil suit for actions they take within the outer perimeter of their official acts.
That has never been applied to criminal prosecutions or criminal liability before by any court until this case. And so it's always been unclear whether a president could or could not be held criminally liable for things he does while he's in office. So Mr. Trump argued everything I'm alleged to have done in this indictment are things that I did within the outer perimeter of my official acts, right? My communications with the public, with state legislators,
with my own vice president about fraud in the election is within the scope of my official acts as president. And therefore, I cannot be criminally prosecuted for those things because I have immunity that arises from principles of separation of powers. He also argued it arises from the impeachment clause within the Constitution. And he based this loosely on double jeopardy principles that I can't be prosecuted criminally unless I have been impeached and convicted in the Senate
And I was acquitted in the Senate for conduct based on the same, you know, acts that are alleged in the criminal indictment. Therefore, I can't be criminally prosecuted for these things. When this case was before the district court, the district court, rather than deciding whether anything he was alleged to have done was within the scope of his official acts as a former president, said, I don't have to be prosecuted.
And in fact, Judge Chutkan spent a whole paragraph deciding this. She said specifically,
The court expresses no opinion on the additional constitutional questions attendant to defendants' assertion that former presidents retain absolute criminal immunity for acts within the outer perimeter of the president's official responsibility. She says, even if I were to accept that, there's all kinds of questions I would have to decide, including whether the president's duty to take care that the laws be faithfully executed includes within its outer perimeter accountability.
at least five different forms of indicted conduct, because there were five different aspects of the scheme that were included in Jack Smith's indictment. She says, I would have to decide, but I am not going to decide whether inquiring into the president's purpose for undertaking each form of that allegedly criminal conduct is constitutionally permissible in an immunity analysis. And I also would have to decide, but I am not going to decide whether any presidential conduct
was so intertwined with otherwise constitutionally immune actions that it would receive criminal immunity. And she just concludes, because I'm concluding former presidents don't possess absolute federal criminal immunity for any acts while committed in office, I don't have to reach these issues.
OK, she then went on, of course, to reject this argument that he would have to be impeached and convicted in the Senate before he could be criminally prosecuted. When this went up to the D.C. Circuit, they did the same thing. They said, because we conclude today that former President Trump is not entitled to categorical immunity from criminal liability, even for assertedly official acts, it is
unnecessary to explore whether executive immunity, if it applied here, would encompass his expansive definition of official acts. They do say, it is doubtful, we think, that all five types of conduct described in the indictment constitute official acts.
So why do I raise all this? Yeah, Mary, I see where this is like a heat seeking missile because you're such an appellate lawyer that I know where this is going. Because let me just see if I can make sure I'm following you and everyone is, which is that the district court and the Court of Appeals basically went big.
They said criminal immunity just does not apply for official acts. And in various footnotes and comments, they have sort of not even dicta saying, you know, we don't have to reach the sort of more thorny issue of are there any circumstances where official acts could be immunized versus could be prosecuted because we just find criminal immunity just doesn't exist with respect to former presidents. I think I've said that right. Yeah. Okay. So that's...
So the issue is, obviously, the Supreme Court could say there's total criminal immunity. There's no criminal immunity, which was what the Court of Appeals and the district court said. But this is where I think you're going to go. Go to where the other thing they could do. Right. And
And I don't think they'll say there's total immunity for everything a president does, because that's inconsistent even with the question that they say they're limiting to. Remember, they're asking whether and if so, to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office? So they could, as you just indicated, affirm the D.C. Circuit and say, we actually reject
that there is criminal immunity for official acts. Remember, whether and if so, to what extent. So if they get five votes... On the weather part. That's right.
Five votes on the weather part. Nope, you're not immune. Then it's done. It goes back. Then we can talk after the break about whether by the time it goes back, there's time enough to get this to trial before the election. But if they were to decide, we do think that there is some form of immunity for official acts or for conduct within the outer perimeter of the official acts.
That doesn't necessarily mean they will decide in this case whether the allegations in the indictment allege things that are within the former president, Mr. Trump's official acts when he was in office. Ordinarily, the Supreme Court would not rule on issues that the lower courts hadn't already passed on.
ordinarily they would say, we'll send this back and have the district court decide in the first instance, were these things, the things that Judge Chotkin specifically said, I'm not deciding, right? Is this conduct that is charged in the indictment, is it even arguably within the official acts of a president? And so if the court were to do that,
We are buying into a whole lot more time, right? Because then we're not even going back for a trial. We're going back for Judge Chutkin to now answer all those questions that she said she didn't have to answer. We then have a question of are these just purely legal issues, whether the allegations in the indictment involve official acts or would we actually need some factual finding potentially by a jury on some of these issues? I think there's a lot of legal aspect to it.
We'd also have Judge Chutkan at least applying in some part the D.C. Circuit's decision in the civil case against Mr. Trump, which we talked about several weeks ago, the Blassing Game case. This is a case where police officers, Capitol Police officers and Metropolitan Police officers and others have sued Mr. Trump for damages for the physical and mental injuries they suffered as a result of the attack on the Capitol. And this is a case where Mr. Trump also
had sought immunity from the civil liability, which again is based on whether these things are within the scope of his official acts. And the D.C. Circuit said at this stage of the civil case, there is a difference between acts you take as president and acts you take as a candidate for president. And at least based on the allegations in the complaint in that civil case,
These acts, if they were things taken, the things he did, if they were done in his role as a candidate, he would not have immunity for those because those would not be within the outer scope of his official acts. So they sent that case back down. That's still percolating in the district court.
So if the Supreme Court were to send this back to Judge Chutkan, she would be applying some of those principles probably about what did Mr. Trump do as a candidate, what did he do as a president? Now, the Supreme Court could, and I think we all hope it will, go ahead and if it were
to decide that there is some level of criminal immunity for actions taken within the outer perimeter of the official acts of presidents, we're all hoping it will go ahead and decide whether, in fact, the allegations here are within or with outside the official acts of a president. And I think
This is something that Jack Smith, in his opposition to the motion for a stay, said, if you do take this case, you don't have to address, is there ever any possibility that a president should be immune from acts done within the outer perimeter of their official acts? You don't have to boil the water. You don't have to play out every single scenario. You can just limit your decision to the facts in this case, where the allegations are about an effort to
actually overturn the votes of the American people and prevent the transfer of power under our Constitution. That's all you would have to decide here. That's outside the official acts of the president, limit it to that. And that's what we'll see him arguing, I think, when this gets up to the court.
So, Mary, what you're saying is one of the things they could do is essentially a decision that causes even more delay because they could send it back to Judge Chutkin for fact-finding the way that the D.C. Circuit in the civil context sent it back to Judge Chutkin for... Judge Mehta. The civil case was Judge Mehta. Yes. So that, of course, then could also be appealed. That's right.
This case is over in the sense. So we're really now going to slosh into the timing issues. And just to be clear on that, Andrew, the reason that could be subject to appeal again, if she were then to conclude outside official acts, you're not immune. Trump goes right up again. Oh, yeah, of course. I mean, the idea is that is sort of something he's going to say is there's an ability to have an interim appeal. Right.
So that's just a long way of us trying to explain that it's not a sort of all or nothing decision in the Supreme Court, that there's this sort of interim decision where they sort of say it depends on whether it is in fact an official act or not an official act with respect to what's charged here.
and all aspects of the indictment. And if that were to happen, it has huge implications in terms of timing, as if this granting stay doesn't already insert doesn't exactly. So this is probably a really good place to take a break. And then we'll actually talk about those timing issues, the ones that clearly exist right now, even leaving aside Mary's
Excellent point that I think has gotten no real traction so far on air in terms of people really spelling out all of the different options that the Supreme Court has and ways in which this could even be slower than people think. So let's take a break and then come back and talk about the timing issues right now that exist no matter what the Supreme Court decides. Sounds good.
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Welcome back. As promised, now let's get into sort of the practical consequences of the Supreme Court's order yesterday. And Andrew, I know this is something you've been thinking a lot about. And, you know, we just played out how there could be slow delay or really slow delay. It's like dumb and dumber. It's like slow and slower. So talk to us about what this means. Are we going to get slow?
to trial. Is there any hope of getting this case to trial before the election? Okay, so this is going to involve math. And as I think I've said, I don't usually do math in public, but I'm going to make an exception because it's necessary. I'm going to do a bottom line up front bluff. I think that while there is a chance that this could go to trial before the election, we are now talking about the sun and the moon aligning
And so many things have to go right for Jack Smith. I am going to talk briefly at the end about some things that Jack Smith may be thinking about doing if he's trying to get to trial before the election, which I'm sure he wants to do for a whole bunch of valid reasons what he might do. But let me first talk about the math here. So there's now continued speculation.
stay. What is important to note is that the time that the stay was first put into place by Judge Chutkan, 88 days remained between the time of the stay and the time of her trial date. So she issued the stay in December and the trial date was March 4th. Why is that relevant? Because she had given the parties about seven months to prepare for trial.
And so 88 days remained, and that meant 88 days when the case starts, if you were doing a one-to-one,
would be what the defense would be, quote unquote, entitled to to prepare. So when she and if she gets the green light from the Supreme Court, you have to tack on assuming, and I'll talk about that in a second, but assuming a one-to-one ratio, 88 more days that she would give to the defense because as she has said in connection with the granting of the stay, she is not counting any of the time during the stay against Donald Trump.
So what does that mean? It is possible for the Supreme Court, possible, I'm going to emphasize that word, for the Supreme Court to hear the case the week of April 22nd and issue a decision a couple weeks after that. That would be...
lightning speed because we're talking about a decision which by the fact that they granted the stay means that it is likely there is going to be internal dispute. The fact that it took them 13 days, right, to grant cert means they were talking. Yes. So that would be very, very fast. And none of the data points really suggest that they have a strong
contingent group there of moving fast. They could have taken this case directly. If you remember, Jack Smith asked the Supreme Court to hear the case from the district court to leapfrog the Court of Appeals, and they said no. They also, Mary, as you pointed out, took a couple weeks to even just decide this petition. And then the schedule, while it is
expedited. That's in air quotes. We're on a podcast. You can't see me like rolling my eyes, but I'm rolling my eyes. It's much faster than normal, but they went much faster than this in the 14th Amendment Section 3 briefing. This is three weeks per side, basically, for briefs. So they're not going to hear the case for two months. So there's not a lot of reason to think, oh, they're going to decide this case within two weeks of the oral argument. But if they did and
and you had a decision in May, you then tack on another essentially two and a half, almost three months to that. So where are we? May, June, July. You're now talking about an August start date. And that is kind of the earliest. As you mentioned, Mary, there's other ways that this could go in terms of how they decide it. They
They also could decide this case in the normal course, not within two weeks, but at the end of the term. The end of the term of the Supreme Court is at the end of June. And so imagine tacking on three months from that and then the case would begin. And that's assuming Judge Shutkin would think it's appropriate to have the case start in essentially September. Or even October, beginning of October. Right, exactly. So that's a long way of saying that this could be quite some time even.
even on the optimistic side where they don't do what Mary was saying as a potential option, which would really kill the case. So I think this is a case where when I think about it big picture, I think the Supreme Court is unlikely to find that all of the charges here are covered by presidential immunity and that a president can be held criminally liable. But
But de facto, they will have said that Donald Trump is immune from this case because it will essentially, unless Joe Biden wins the election, this case will go away because he will not be held to account because he's
He will become president and then he will be head of the executive branch and can order his Department of Justice to just discontinue the case so that they could end up writing a very flowery opinion that sounds great about presidents are not kings, etc. But in fact,
Right.
would want to clear his or her name. They would want to go to trial to have that opportunity. And they'd want it quickly, right? Clear my name quickly. Yes, before the election. And so here he wants to basically just be able to have the trial, in air quotes, in the court of public opinion, but not actually have actual facts made
matter, have that played out in front of a courtroom, in front of a jury and a judge to have a decision. Well, to that point, I mean, he's running on this. I mean, a pretty major part of his stump speeches is that he's being persecuted by a weaponized Department of Justice. Right. And he's just like Alexei Navalny. And, you know, he's a victim and he needs to become president to get retribution. So like the
need to hold him accountable, which I think is so critical to the rule of law, has actually been turned by him into a weapon to use as part of his campaign. So he fund-raises on this prosecution and he speaks constantly about it. It's so out of the ordinary of what, like you were, just the point you were making. Most people, if they were under this sort of cloud of an indictment, would want to quickly get it wrapped up and show to everyone as part of their campaign that they're innocent.
And this is quite the country. Yeah, I think we're going to hear a lot about that. So one quick thing just about Jack Smith and what his potential options are if there's a green light for Judge Chutkan to go forward. And essentially, it's got to be how do you cut down that 88-day period?
and how do you cut down the sort of estimate? He had said that he thought the trial would about four to six weeks, but tacking on jury selection and the defense case, the judge has said it's potentially three months. So those are the two areas where I see Jack Smith, if I'm trying to think about what I would do, is I'd be thinking about how do I make an argument to her about the 88 days now can be shorter? Because she's pretty on record saying that it's going to be one-to-one. And I
And I think the only sort of options for Jack Smith is to say he is going to do something, Mary, that's going to sound familiar to you, which is slim to win. Slim down his case. Exactly. I'm surprised I'm going to tell you an anecdote. But when I was doing the Vincent Giganti organized crime case with the wonderful prosecutor George Stamboulidis, Vincent Giganti was the head of the Genovese family. We are in front of then Chief Judge Jack Weinstein, a really famous jurist in the Eastern District of New York.
And we show up and he says, how long is your case going to be? And we said, it's going to be two months. And he said, no, it's not. Right. And we'd been in front of Judge Weinstein a lot. We had enormous respect. And so I remember George said, OK, Judge, how long is our case going to be? Yep. And he said, let's see, you said two months. Your case is going to be one month. And the best thing that happened to us was that.
Yeah. Forcing us to actually think about what do we need? Slimming down our case, cutting the fat. We got in and we got out. It's something you've seen, by the way, in the Manhattan DA's office when they tried the Trump organization case. It was lightning speed and they got a conviction. So this is a good strategy for experienced prosecutors. No slim to win. Yeah.
So what they could do is try and figure out how are they going to cut down this case, make it less voluminous to say to the judge, you know what, you had said 88 days with essentially a much fatter indictment and they could try and cut it down that way. Now, there are lots of arguments to that, but that's one way to do it. They could also then say so the trial itself will be shorter. And of course, although the judge is, of course, taking the defense at its word about the defense case, I cannot tell you
how many times, which would be every time, that the defense says, well, judge, our case will be the equal length. And it's, you know, how long the defense case is. A day or less. Exactly. I mean, at best, there's like a witness who testifies to the good character. And that lasts about a minute. And so, you know, it's a very, very short defense case. So those are some things I'm sure he is thinking about. He has an amazing team and
And certainly with Michael Dreeb and an amazing Supreme Court advocate. So lots to chew on. But I guess, Mary, I just wanted to hear from you, by the way. Do you agree? I'm pretty pessimistic that the case will actually go to trial before the election. Are you more optimistic? Please say yes.
I mean, it all depends. I mean, I laid out a path where there's no possible way it gets there. I mean, I hope the Supreme Court won't do that. And I mostly lay that out so that people will understand and we'll talk about these as the brief gets filed, why we're going to see Jack Smith saying, you don't have to answer all the big questions. You just have to apply right here. This can't be within official acts. I do think there's a chance it will go. I do think that there's a chance that the court will rule before July 1st. I don't think they're going to rule in two weeks. But
But every day is another day, right, when you're talking about how much time Judge Chutkan is going to get them to go. And I do think this is a judge who said my trial calendar is basically not going to be beholden to the other things you're doing, Mr. Trump, like campaigning. So I think if there's an opportunity for it to actually start before the election, the judge will try to start it.
But I mean, that raises questions that we're going to have to leave for another day. I mean, there certainly is not a policy. A lot of people say, isn't there a DOJ policy that you can't do something right around an election? Yeah, you don't take overt action in an investigation or bring an indictment. But this case has been indicted, right? This is the opposite. Exactly. You don't like put the brakes on and stop everything just because suddenly we're at an election. So anyway, we'll talk more about all these things.
I still have a glimmer of hope, but I got to tell you, you know, I think it's a long shot. Yeah. Final thought is, you know, many people thought they that the Supreme Court might be taking this case because they're going to rule for Donald Trump in the Colorado disqualification case and that this allows them to look even handed because they will say that there's no presidential immunity. I actually think what's going on is they're giving Donald Trump two
two wins, not one win, one loss. So that's my pessimistic note. And I do think what it means is people have to be very focused on the facts, who he actually is and make decisions based on that. Because it's
It's not something where it's going to play out necessarily in a court of law. It's going to be playing out in the court of public opinion. At the polls. Right. And the people who think they should not be president because he's not fit for office will be making their decisions arbitrarily.
on their own for the group of people who are subject to being influenced by what would happen in a courtroom, that's where the damage is done because they will not have that data point or that data set. Mary, I'm glad that you're slightly more optimistic than me because that causes me to rethink and have a sliver of hope. But great talking to you. I'm so happy that people got to hear your story
thoughts about various options the Supreme Court has, because I really don't think that people are thinking through all of that.
And it's great to be able to do this podcast to get that out there. That's why we have a podcast. It's awesome. Exactly. That and to give me a glimmer of hope. Yeah, well, we'll try. And so we'll have more to say on this and so many other things next week. Exactly. While we were doing all of this, there's a bunch of things that happened in Mar-a-Lago. So there's a lot of things to talk about. Some kind of good things. So, OK. Yeah, exactly. OK. All right. Take care. Bye. Bye.
If you've got questions, you can leave us a voicemail at 917-342-2934. Maybe we'll play it on the pod. Or you can email us at prosecutingtrumpquestions at NBCUNI.com. Thanks so much for listening again. We'll be back next week with much more.
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