Advisory Opinions - Indictment Watch: Supreme Court Hears Trump’s Immunity Case

Episode Date: April 26, 2024

The Supreme Court this week heard oral arguments for Donald Trump’s immunity case, and David has thoughts. However, he was too sick to join today so Sarah had to go solo (Ruminant style!), recapping the legal and political implications of the case, assessing the strength of the arguments and their significance for the future of our political system, and trying to imagine where we go from here in this bizarre election cycle. The Agenda: —Good and bad news for Trump —What presidential acts are immune? —Impeachment and conviction —Going through the specific charges —Can Trump stage a coup? —ANSWER THE HYPOTHETICALS! —Defining official acts —The effect on Trump’s other cases —The effect on SCOTUS as an institution Show Notes: —Bonus Collision newsletter Learn more about your ad choices. Visit megaphone.fm/adchoices

Maple Syrup, we love you, but Canada is way more. It's poutine mixed with kimchi, maple syrup on Halo Halo, Montreal-style bagels eaten in Brandon, Manitoba. Here, we take the best from one side of the world and mix it with the other. And you can shop that whole world right here in our aisles. Find it all here with more ways to save at real canadian superstore ready i was born ready Welcome to Advisory Opinions. I'm Sarah Isger and, oh, no, it's just me today.

You guys must know how sick David French has to be in order to miss not only just our regular advisory opinions, but this is a special episode on the Supreme Court's last argument of the term Trump's immunity from criminal prosecution. So here's what we're going to do instead. A little cross promotion. I have a newsletter at the Dispatch called The Collision with Mike Warren, where we write about the collision of politics and legal issues in this election cycle. And I wrote a special newsletter on how that argument went. So I'm going to read y'all chunks of the newsletter. I'm going to answer some questions that I've seen online, and we're just going to see how this goes. And don't worry, for the next episode, David will have hopefully stopped vomiting by that point and not be curled up in a little ball. And we will

talk about the spending clause and abortion that was part of the previous argument this week, where the Supreme Court was deciding whether Idaho could have its own abortion laws when it comes to emergency rooms. So more on that to come. And you know what? I think we'll also have to do some refresh on time, place, and manner restrictions under the First Amendment, because frankly, there are people who are wrong on the internet, y'all, and we can't have that. But today for this special episode, we're talking about immunity. So remember, this is Jack Smith, the special counsel, his January 6th election interference federal case against Donald Trump in D.C. The D.C. district judge said Donald Trump did not have immunity from prosecution, even though he was president at the time that these events took place. The D.C. Circuit upheld that with this incredibly broad, absolutely no immunity for any official acts decision. That was always strange. And if y'all

remember, I took a lot of grief when I said that this opinion just didn't work. It couldn't stand. It was so out of line with everything else the Supreme Court has said, every bit of history of the United States. Presidents enjoy full immunity from civil lawsuits for anything that they do when they're president that could even plausibly be seen as an official act. And really, the D.C. Circuit didn't have a great explanation for why criminal prosecution would be so wholly different. The constitutional interest, the separation of powers interest, the functioning of the executive branch. And so the Supreme Court took the case. That really annoyed people who wanted Donald Trump to be tried before the election.

to be tried before the election. And again, here I am out on an island saying, well, unfortunately, the election timing is not legally relevant to, you know, getting the law right on this. So the Supreme Court held arguments on this question on Thursday morning, John Sauer arguing again for Donald Trump and Michael Dreeben arguing for the special counsel's office. First up, by the way, when you argue a case before the Supreme Court from the solicitor general's office representing the Department of Justice, representing the United States, it's funny because they wear costumes. I don't know if we've talked about this before, but they wear morning suits. Let's see, how do I describe a morning suit? It's those like British things with tails and these have tiny little pinstripes and everyone at the solicitor

general's office has one. They in fact have a whole little separate closet if you need to borrow one because sometimes other people at the Department of Justice go and argue cases. So it was notable that Michael Dreeben showed up in a regular suit. This, in fact, prompted a question from Justice Alito where Justice Alito asked, are you here representing the special counsel's office only or are you representing the Department of Justice? And Dreeben said, I'm here representing the Department of Justice and the United States of America. OK, but then why aren't you wearing your morning suit, dude? Small issue, but I'm curious how that conversation went, because I promise it was a conversation

with the Solicitor General of the United States, where Michael Dreeben has worked for a very, very long time. Okay, so Donald Trump had some wins and losses at the Supreme Court for sure. And we haven't even seen an opinion. First, when the DC.C. Circuit held categorically that former presidents enjoy no immunity from criminal prosecution for any official acts taken while in office, under my theory at least, the Supreme Court had no option

but to take the case and further delay Trump's election interference criminal trial. Why? Well, first of all, the Supreme Court, sure, they take circuit splits, and there wasn't necessarily a circuit split here. But another part of the Supreme Court's cert grants are issues of national importance. And if you don't think that whether someone can charge a president with a crime for something they did as president while in office is an important national question. I'm sorry, you've just got your partisan blinders on too thickly. This is going to come up many, many times during the arguments, all the examples of other potential crimes that previous presidents or future presidents could commit. So I just don't think they had a real option of whether to take the case. And frankly,

the question is just too important. This is what the Supreme Court does after all. And the lower court's reasoning flew in the face of the Supreme Court's decade old precedent that former presidents have absolute immunity, at least from civil lawsuits. The two month delay put Donald Trump two months closer to election day without a federal criminal trial. Obviously, that's a win for Donald Trump. That's what he wanted. In another victory, it's important to remember that the Supreme Court decides questions, not cases, as I've said many times on this pod. No matter what the opinion says, the decision will send the case back to the lower court to apply the Supreme Court's rule to the facts of this case. Another delay, another win from Trump. In fact, I saw a tweet from a reporter that I really like, Susan Glasser from The New Yorker, and she said, seeing a lot of freaking out right

now among SCOTUS expert types that the court is going to delay Trump's federal trial till after the election by keeping this immunity case going. What? I'm confused by their confusion. Because the Supreme Court decides questions, not cases, once they agree to take this case two months ago, the case was always going to be sent back down for the district judge to rule on the specific charges against Trump. Anyone who was saying otherwise on Twitter was by definition not a Supreme Court expert. Oh, Twitter. Okay, so that's another delay. That's another win for Trump because, again, the Supreme Court's going to set out a rule in the opinion and the lower court's going to have to apply it that's gonna be

another hearing but it wasn't all good news for trump in the nearly three hours that the justices discussed whether this is the question presented 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, it was clear that nobody thinks that Donald Trump is absolutely immune from federal prosecution for all of his actions in the run-up to January 6th. Not even his own lawyer. At the same time, it also seemed almost certain that all of the justices also agreed that at least some official acts of a former president are immune from prosecution. The question isn't whether the president is above the law. Everyone agreed from both sides that the

president is subject to prosecution for all personal acts, just like every other American can be prosecuted for their personal acts. The question is what to do about the acts the president takes as president in his official capacity, things that the rest of us can't do because we're not president. But what are they? How do we define them? And what should be the test moving forward? And I'll be honest, there were nine different tests thrown out there. So I'm going to give you all some of the questions from the argument. I'm not going to quote. I'm just sort of paraphrasing in my own words. And then, and we'll see where that takes us. Should judges try to determine whether the president, but what are they? How do we define

them? And what should the test be moving forward? So I'm not going to quote everything from the oral argument, but it's felt like there were maybe nine different tests being tossed out there. So I'm not going to quote everything from the oral argument, but it felt like there were maybe nine different tests being tossed out there. So I'm going to run through some of the questions and these questions are trying to come up with a test to define which official acts are immune from criminal prosecution and which official acts are not immune from criminal prosecution. What is that test going to look like? So I'll throw out some of those questions that we heard. from criminal prosecution? What is that test going to look like? So I'll throw out some of those questions that we heard. Should judges try to determine whether the president was invoking a core presidential authority, something only a president could do? But if the president orders

the military to stage a coup or sells our nuclear secrets, those are clearly things only a president could do, and they seem like things we might want to prosecute someone for. Perhaps trial courts could try to determine whether the president's actions were for the public good, like killing terrorists who turned out to be American citizens, or whether they were for private gain, like trying to help one's own chances of re-election by lying about the true effects of a policy. But if political advantage is evidence of an improper purpose, doesn't the exception swallow the rule and every president is back to being charged with crimes after leaving office? All official acts can be seen through a political lens, right? It's kind of called being president, at least a first-term president. Should presidents be immune

if their attorneys general told them it was legal and they relied on that advice this was interestingly the exception brought up by the government like by the department of justice which i thought was crazy that would just incentivize presidents to appoint unscrupulous attorneys general or fill their ag's time with perfunctory sign-offs for every single thing the president does. It would also, frankly, elevate the power of the attorney general to almost a co-president sign-off role that I think would be very questionably constitutional. If presidents pardon themselves before they leave office are they immune this was an interesting thing to come up at the argument again coming up from the department of

justice but if self-pardons are constitutional and that has never been said one way or the other then every president will sign one the day before they leave office and Trump is just the last chump who didn't and the government somehow pushed back on this um and said like no no that they won't sign self pardons all the time but if I'm White House counsel frankly I'd be committing malpractice for my client if I didn't just have a form self-pardon to sign on the way out why would you run the risk that your client is tried with a crime? That would be really weird, bad lawyering. You should get disbarred if you don't do that, if that's the rule moving forward. If it's so clear that presidents can be charged with crimes for actions they took while in office, why was an FDR charged for interning Japanese Americans during

World War II, a clear violation of 18 U.S.C. Section 242, which makes it a crime for an official to deprive someone of their civil rights. This came up very specifically in oral argument, as did LBJ lying about things about the Vietnam War, obviously President Obama with the drone strike, killing two American citizens. I mean, the list went on and on. But I found the FDR one the most interesting because, frankly, it's the most clear violation of a federal criminal law. And I think that the answer to that actually is going to get us to what I think the test will eventually be. And spoiler alert, it's going to have to do with common law qualified

immunity. So let's put a pin in the FDR example and come back to it. All right, moving on. But if the founders intended presidents to be immune from prosecution, why didn't they just say so? Several states did in their constitutions, as Elena Kagan pointed out. Isn't that evidence that the founders had every intention of allowing presidents to be charged? On the flip side, should there have to be a clear statement rule that it's not that they didn't say

presidents couldn't be charged, but they needed to say presidents could be charged? And wait a second, didn't they? If the constitution says that a person who is impeached and convicted, quote, shall nevertheless be liable and subject to indictment trial judgment and punishment according to law doesn't that actually very much envision presidents getting charged with crimes yes is the answer to that but does

that mean that a former president can only be charged if he's first impeached and convicted as donald trump's attorney offered at the Supreme Court argument. He really pressed that one at the DC Circuit, and I found it laughably implausible. He backed off of it quite a bit. He offered it here at the Supreme Court. He stood by it, but it was not a major part of his argument because there's huge problems with that so first of all this to me is like where the rubber meets the originalist textualist road so the constitution of the united states in the impeachment clause which applies to the president says that even after being impeached and convicted an official shall nevertheless be liable and subject to indictment

trial judgment and punishment according to law okay so definitely the president is included in being charged with a crime after he leaves office for something he did while in office that he could have been impeached for okay so we know that presidents then do not have absolute immunity from all criminal prosecution. Check. Next up, though, this idea that they'd have to be impeached and convicted before being charged with a crime after leaving office also seems odd because nobody argues that someone other than the president would have to be impeached and convicted to be charged with a crime after leaving office. So John Sauer, the president's lawyer, was left with arguing this very needle threading thing yes presidents can be charged with a crime after leaving office for something you know an official action um but

they must be impeached and convicted first but that only applies to presidents. So like the vice president doesn't have to be impeached and convicted. And that comes from vibes, mostly vibes, really. So nobody was buying that argument. As several of the justices pointed out, they aren't making a rule for Donald Trump. They're making, quote, a rule for the ages, as Justice Gorsuch put it, one that has to apply to good presidents and bad ones, Republicans and Democrats, high-minded prosecutors and partisan ones. It can be easy to focus on, quote, the needs of the moment, as Justice Kavanaugh said, but that can make really bad law. Bad facts make bad law, anyone? And here's the fear.

If they give presidents too much immunity, the White House turns into a, quote, crime center, as Justice Jackson put it. Is that referencing something or did she just come up with crime center? Too little immunity and there's an endless partisan cycle of prosecutions. The ability to find some vague statute will, quote, be used against the current president or the next president, Justice Kavanaugh argued, and the next president and the next president after that, he said. So how will this all shake out? Obviously, I can't say for sure. Oral arguments, even two-hour and 40-minute ones, can only tell you so much.

But I predict this will be a unanimous ruling instructing the district court to determine which of the charged acts were clearly outside the authority of the president, whether it was an official act or not. So if it was personal conduct, signing false election fraud allegations in a lawsuit against the Georgia governor, which by the way, Trump's attorney acknowledged during oral argument was personal conduct. The charge can move forward. If it was official conduct that was plausibly lawful, considering whether to replace the attorney general, then it has to get tossed out. And interestingly, by the way, Dreeben, again, arguing for the special counsel, tried to make the argument that, in fact, the more official the act was, the worse it was,

the more you should be able to charge it with a crime. So, for instance, considering whether to replace the attorney general, a core presidential appointments clause function, he said should be even more able to face criminal charges if it was for the bad reasons or something. And it reminded me so much of the arguments under the Adams administration about defamation. So remember, our defamation rules are that truth is the ultimate defense, right? If you can prove that what you said was true about someone, then you didn't commit defamation. Well, in the Alien and Sedition Acts, the Adams administration made it a crime for someone to criticize the government, members of Congress. It was long and very unconstitutional, but their argument was that if it was true, it was worse because the true things will bring

those elected officials into even more disrepute than the false things so this kind of reminded me of that that like if it's a core presidential function and he did it for a bad reason then it's extra criminal that seems to turn the whole thing on its head i mean again you would now be able to look into every appointment that a president made to determine whether they did it for sort of their own personal gain, own personal benefit. I think we have too rosy a view of presidents if we think that it's not usually for their own personal benefit who they appoint for their cabinet or for their own, not personal benefit, maybe that's the wrong term, political benefit. No one's arguing that this was for Trump's personal benefit. It wasn't

a bribery case or something like that. It was for his political benefit to get reelected. How in the world would you separate out sort of okay political benefit from bad political benefit? okay political benefit from bad political benefit. Okay, so just to be clear, personal conduct, charge can move forward. Official conduct that was plausibly lawful, appointments clause stuff, anything like that, it has to get tossed out. But if the president orders SEAL Team 6 to assassinate a rival, that is official conduct. Anytime the president gives a military order, he is acting as commander-in-chief. But it is so clearly unlawful. Any reasonable person holding the office would know that it wasn't legal, that that president would not be immune from criminal prosecution. So that's the rule that I think we'll get closest to. And now we're going to go back to that FDR example and apply it to that

because it's interesting to me. If today a president tried to intern every Japanese American or pick your group, every Palestinian supporting American, it would be so obviously in violation of 18 usc 242 deprivation of civil rights that i think it would violate this rule that i am suggesting the supreme court will land on um but during fdr's, it wouldn't have. And obviously that's not good, but the fact that FDR claimed that it was for a national security reason, in today's world, we would say that that was so pretextual. There was no national security threat that was reasonable or plausible even. But at the time, of course, we know that it was viewed as reasonable. So a reasonable person in the office of the president would have thought that it served a real national security reason.

Obviously, we know that because the Supreme Court agreed in Korematsu. So, could FDR be charged with a crime? Not at the time. Could today's FDR be charged with a crime under this rule? Absolutely yes. So where does that leave Donald Trump? with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy-to-use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame.

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plus free shipping on their best-selling frame. That's A-U-R-A-Frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. As I've said many, many times, there's four charges in this. And one of them is about that DOJ conduct, thinking about replacing his attorney general with someone who would be more amenable to his fake election fraud claims. That to me is a core presidential power that is plausibly legal. A reasonable president would think that replacing his attorney general with someone who would support his political goals was legal. I think that one gets thrown out.

One of them is about his calls within Georgia, the find me 11,800 votes. I think that's either personal conduct or not plausibly legal. And then, you know, we've also said a big problem is that they have a list of facts and they have a list of charges. And frankly, they never connected the two. And I'm not here to assume that I know which ones go with which. But I think for the most part, most of the charges against Trump would stand under this theory. But you'd have to go prove that he knew the fake elector scheme was fake. Things that, frankly, I don't think are very hard to prove. But you would need to show that a reasonable person would have known that that wasn't legal conduct. So how does this relate to qualified immunity?

Because remember, right now under qualified immunity, you have to show that there was a constitutional violation and show that the constitutional rule was clearly established. And we've talked about how this is a hot mess because courts often just skip to that second one. So we never hold whether there was a constitutional violation. It's like, if there was a constitutional violation, it wasn't clearly established. But by not saying that there was one, it then never becomes clearly established. And on and on we go with people maybe violating your constitutional rights forever and ever. And on and on we go with people maybe violating your constitutional rights forever and ever. And we've talked about how the Supreme Court seems unhappy with current qualified immunity doctrine, but also they keep not taking all of the cases that the circuit courts are teeing up for them on this, presumably because they don't know what the majority, what five justices would agree is the new test.

what the majority, what five justices would agree is the new test. And as I mentioned before, husband of the pod in his first paternity leave during COVID wrote a law review article published in the Stanford Law Review on qualified and absolute immunity at common law, basically before Congress passed the Civil Rights Act of 1871. And I mean, I'm not going to, don't worry, I'm not going to read you the 64-page law review article. But the point was something like, yeah, you look at the intentions and you look at this objective analysis of what a reasonable person think

that they were breaking the law. So both the person's intentions and a subjective and an objective analysis, it'll be very interesting, obviously, from the Donald Trump perspective, what the Supreme Court decides. But this could apply to a whole lot of state officials out there who have been shielding themselves let's say behind qualified immunity whether you're a teacher a school administrator um a police officer all of these folks who are accused one way or another of violating someone's constitutional free speech rights um search and

seizure rights uh um forcible arrest excessive force type stuff. Whatever rule the Supreme Court comes up with could very, very much apply in that context as well down the road. And it could signal to us where they're going to go because qualified immunity and absolute immunity are two sides of the same coin. The Supreme Court has said that presidents, for instance, have absolute immunity from civil lawsuits for claims arising from official acts while they were in office. But I'm telling you,

they're not going to find absolute immunity for all official acts for criminal prosecution, which means this will be a form of qualified immunity. Yeah. So this opinion is going to matter. And it's why those who are upset that the Supreme Court took this case because of the timing issue, I think are being incredibly short-sighted, not being true to what the Supreme Court is actually supposed to be doing here, this actually matters what rule they come up with. And it matters for the next president and all the presidents after that. It matters for the proper functioning of our government that we don't just have this tit

for tat escalation. And it matters for every other state official where qualified immunity is going to be affected by this. So this idea that the Supreme Court could just leave in place the D.C. Circuit's decision, whether it was right or wrong, this is an issue of national importance. That's what the Supreme Court does. Yes, it affected the timing of a trial based on an election, but that is not legally relevant to this. Interesting notes from the argument that I thought were worth bringing up. One, Justice Kavanaugh comes in hot on the executive branch prerogatives. And remember, Justice Kavanaugh served in the White House. He was staff secretary for George W. Bush. He'd served in the Department of Justice as well. He'd served in the Department of Justice as well. And I just found it fascinating, his focus on this bad facts make bad law problem. So his questions to the government, to the special

counsel's lawyer, Michael Dreeben, were really focused on Morrison v. Olson, which if that was on your bingo card, good for you because it was not on mine. Morrison v. Olson is a Supreme Court case from the 90s that upheld the constitutionality of the independent counsel statute. This is like the Ken Starr thing. Justice Scalia dissented from that. Consider one of the sort of worse but not consequential opinions of the Supreme Court, right? There's like bad and deeply consequential opinions. Think Dred Scott, Korematsu, Buck v. Bell. And then there's like wrong but it doesn't matter that much opinions. Morrison v. Olson, I think for most people, would have fallen into that bucket. The idea that you could have an independent council,

the idea that you could have an independent council independent of the executive branch um created by congress doesn't really seem to fit into our constitutional structure very well but of course this is during the clinton administration and everyone's kind of like yeah but this guy seems shady so we should probably have an independent council the independent council statute then lapses on its own, and it's simply not repassed by Congress. That's how we ended independent counsels and now have special counsels, which I've also pointed out the many, many problems with special counsels operate, their sort of singular focus, as Justice Kavanaugh sort of said, this, you know, find me the man and I'll find you the crime type problem. But that's way more true for Morrison v. Olson. And so what Justice Kavanaugh was saying is, what I'm worried about is that we will have another Morrison v. Olson opinion, that we relax Article 2 for the needs of the moment, meaning Trump seems really bad. What he did seems outrageous. January 6th was awful. But if we come up with this rule

to make sure that Donald Trump can be tried criminally, are we creating another Morrison v. Olson problem because we're looking only at the facts in front of us. Just an interesting insight into, I think, both Brett Kavanaugh's experience before coming on the court. And he says Reagan, the Clinton, and the Bush administrations were really hobbled by special councils investigating them. And while this isn't the same in terms of like being investigated or special independent councils, it's the same idea of not wanting to let a president off the hook in the moment and creating a rule that then actually hurts the separation of powers in the constitutional structure. structure. One more question that I saw online that I actually really enjoyed was, I believe Justice Sotomayor asked John Sauer, Trump's lawyer, whether he believed a president who orders the military to stage a coup was engaging in an official act. And John Sauer answered yes, basically, giving the military an order is an official act. And there were people online saying, why aren't there consequences for

giving an answer like that? And I take the question really at face value because if you take that snippet out, it makes it sound like Trump's lawyer is saying that a president with total impunity should be able to order the military to stage a coup. So let's break this down for a second. One, I complained just this week about lawyers who don't answer the hypotheticals, not because they're being stubborn or they don't want to give away the game, but because if you don't show us the logical consequences of your argument, you're actually really undermining your argument because we're going to assume the logical consequences are so bad or that you haven't thought about them. But the Supreme Court is not going to create a rule that we don't think about the logical consequences of. So first of all, I want lawyers

to answer the question, even if the answer is bad for their side, for the country, for whatever else, because we need to know where their arguments lead us. So when John Sauer is defining official acts, Sotomayor is arguing that maybe an official, you know, a thing a president does with presidential authority for a bad purpose or for an illegal purpose isn't an official act. Now that definition becomes really circular, right? purpose isn't an official act. Now that definition becomes really circular, right? An official act is whatever you do that isn't illegal. And if it's illegal, it's not an official act, but okay. Anyway, and so she's giving this example of something that we all feel is fundamentally wrong, but Sauer's point is that like, well, yes, it's an official act, but then craft a rule so that some official acts aren't immune.

So that's the qualified immunity argument. And that's the rule that I think in the end, the Supreme Court will adopt, which is you have this bright line rule between official acts and personal acts. You, I don't know, steal a loaf of bread, hit your wife. Those are things people can do whether they're president or not Those are personal acts official acts are things you do with the authority of the president. Don't mess up that line You know don't adopt the sotomayor rule where the purpose changes whether it's an official act or the motivation changes whether it's official act I think that creates a stew of problems

so instead I think that creates a stew of problems. So instead, have the bright line, very objective test between official and personal acts, but then within the official acts, now divide up what is actually immune from prosecution and what's not. So Sauer's answer, first of all, even if that were just like, yep, and I don't think presidents can be prosecuted for that, I would still want him to give that answer because I think it's important to know where one's argument goes. We shouldn't punish lawyers for giving truthful answers based on their theories of the law. But in this case, of course, it actually goes to the heart of the whole argument and the rule we're trying to come up with. Yes, we need to come up with a rule where a president who orders the military to stage a coup is not immune from consequences. So I guess the big takeaways there are don't judge

an oral argument or even an advocate by a question and answer you see on Twitter, if you don't know the whole context. What other questions do I need to answer about this oral argument? Okay, so to recap on this case, I think it'll be unanimous on, you know, presidents don't have absolute immunity from criminal prosecution. I mean, they can't. Remember the impeachment clause? But the presidents do have some immunity from criminal prosecution for official acts. Now, whether it's unanimous on defining that test, harder to say, maybe not. Part of the reason that I thought it would be unanimous, by the way, is that while the argument was two hours and 40 minutes, the argument time

for Trump's lawyer was actually under an hour. So the chief justice, if you remember how oral arguments go, each advocate gets 30 minutes of freewheeling time. That includes a two-minute introduction where they don't get interrupted. And the chief justice is pretty good at holding people to almost identical times for that. So both advocates got 30 minutes of their freewheeling hot bench question and answers. Justices throw out answers. If two justices ask at the same time, the more senior justice gets to go. They're all incredibly polite as they step on each other. That's one of the more fun parts. You get those little glimpses into relationships and personalities in those moments. So after that 30 minutes, the questions then go seriatim through the justices in seniority.

So Chief Justice goes first, then Justice Thomas, then Justice Alito, then Justice Sotomayor, then Justice Kagan, then Justice Gorsuch, then Justice Kavanaugh, then Justice Barrett, then Justice Jackson. The justices during those seriatim questions aren't really limited in their amount of time. So it's very interesting to me that for Trump's lawyer, that was just 30 minutes. But for the government's lawyer, it went much longer, almost an hour. But then for the government's lawyer, that seriatim time went from one hour and 10 minutes. Now, just those times alone wouldn't tell you, I don't think, who's doing better and who's doing worse. You can imagine a situation where the justices stop asking one guy questions because they don't care about his answers. The answers either aren't good enough,

the person's not prepared enough. That's not the issue in this argument, though, aren't good enough the person's not prepared enough that's not the issue in this argument though and i think the justices were more concerned about the implications of the government's test again the idea that for instance um this these were different things the government threw out that the more official the act is the worse it is the more prone to criminal prosecution it should be. That advice from attorneys general would give a sort of advice of counsel equitable estoppel, they said at one point, the self-pardon example. So that took a lot longer. And I guess to me, what that signaled was they kind of went in knowing that they weren't doing the absolute immunity part, all nine. And then the nine are trying to grapple with what that test is going to be. And that's where they

get stuck on the government. Okay. So that's where that leaves us on this case. But where does that leave us on all of Trump's cases? And remember, there's four criminal cases. There's the one in New York going on right now having to do with the run up to the 2016 election and Trump paying hush money through Michael Cohen

in a catch-and-kill scheme with the National Enquirer. None of those allegations involve him as president. Therefore, the outcome of this case is irrelevant to that case. He can't claim any immunity as being

a presidential candidate at that point. Next up, we have the Florida classified documents case. So remember, none of those charges implicate Trump as president either. He leaves the White House, those charges implicate Trump as president either. He leaves the White House, he takes the documents with him, then the FBI, the National Archives, I guess, asks for the documents back, then the FBI comes and gets them back. That's all after he's president. So same thing. The outcome of this case does not implicate anything in the federal classified documents case down in Florida. But now, of course, we have this case, the D.C. Federal Special Counsel case. Obviously, it will affect that. There's also, though, the Georgia case that's about the same time period and many of the same allegations, in fact, under Georgia state law, all dealing with

Trump as president. Very much the outcome of this case will affect that Georgia case as well. Again, I think there's going to be plenty left for the Georgia case to move forward. Despite, for instance, Justice Kavanaugh's concerns about a Morrison v. Olson bad facts make bad law, certainly some of the conduct that we're talking about was personal. Again, you have even John Sauer, Trump's attorney, acknowledging that, for instance, filing that lawsuit against the Georgia governor was not done in his official capacity as president. That was clearly personal conduct. So we're not even getting to how to have that qualified immunity about official conduct.

Personal conduct, everyone agreed, was subject to prosecution. So the rule here will affect two out of the four Trump criminal cases moving forward. So that brings us to the timeline. I've already said that because the Supreme Court decides questions, not cases. Okay, so that brings us to the timeline. I've already said that just by virtue of the Supreme Court taking this case, not only was it going to be the two-month delay to the oral argument to get the case briefed up and allow the advocates time to prepare,

but also there's going to be delay on the back end because they're going to come up with a rule for the trial court to apply, then the DC circuit to apply. And then of course it can be appealed back up to the Supreme court. If one side or the other feels that the rule was not applied correctly. Now, do I think the Supreme court will take it a second time on those grounds? Unless the DC Circuit looks like they're intentionally ignoring the rule of the Supreme Court, no. I think when this comes back up again, the Supreme Court from either side will probably ignore that and deny cert, for instance. But regardless, we're talking about

a pretty lengthy time to then apply the rule down at the lower courts. This case is not going to trial before the election. Now, when will they actually release a decision? Well, that's interesting because, again, the timing and the sense of whether the case will go to trial before the election now doesn't really matter. And so instead, this was added to the merits calendar. It's the last day of oral arguments. So it could come out in June with the other hit parade cases. They could try to get it out earlier. As I said, the fact that the argument for Trump's attorney was so much shorter made me think that they came in with some idea based on taking the case in the

first place, that they kind of know where the justices are all landing on some of the questions. I think you have the concerns of making a rule for the ages, as Justice Gorsuch said, not having another Morrison v. Olson, as Justice Kavanaugh said. They're going to be very, very careful in the way that they write this. And that just takes time. And you've got a lot of other big cases pending on MIFA Press Stone, on Idaho's abortion law, on multiple gun cases. They're all writing these at the same time. So my guess, they try to get it out sooner than the last day of the term type June cases, but not by much. They just won't be able to get it done. Okay, so then let's talk about what happens if trump wins because right if trump loses then it's just exactly what it is now none of the

timing of this matters and he'll stand trial in all four cases eventually barring death but if he wins the presidency we're left with quite a few questions here. So first, all criminal prosecutions, including state prosecutions, will be put on hold during the pendency of his presidency. Then there's the constitutional question about self-pardons. Does the president's pardon power extend to the president himself? Nobody. There is no consensus on this question. There's no constitutional answer to this question. There's historical facts on both sides, frankly. I feel like constitutional scholars are pretty split 50-50, and it's not really an ideological split.

And again, if presidents are found to be able to pardon themselves, I think we've got a huge problem because on the last day of every presidency, the White House counsel is gonna put in front of the president any number of papers, as they do at the end of the presidency, to sign. And one of them is just going to be a blanket self-pardon. And that will mean that this case didn't matter at all,

except as it applied to Donald Trump, because you're never going to be able to try another president for a federal crime again. But of course, presidents can't pardon anyone for a state crime. So whether they can pardon themselves or not, they wouldn't be able to pardon themselves for a state crime, meaning the Georgia case and the New York case could continue after they leave the White House. They can't be a sitting president. But regardless of the self-pardon power, if it exists, you know, yes, those practical consequences are a pretty good argument against the constitutionality of a self-pardon. But there's a little bit of stupid but constitutional. If you can find, I think, clear evidence that the pardon power did apply to presidents then it's not really our job

to determine the consequences I think the better question though is do you demand sort of a clear statement that there is the power to pardon oneself or do you demand a clear statement that there isn't a power to pardon oneself it's like where does the burden of proof lie? And my guess is, for most of the justices, the burden would be on the self-pardon side to show that the pardon power was intended to apply to oneself. I mean, that's going to be a hard burden to overcome. All right, so last thing on this, we've talked about all the political consequences for Donald Trump, the, you know, election, the timing, the self-pardon, what goes on pause, what moves forward, all of that stuff. But there's another part of the political

consequences of the outcome of this case that are pretty relevant, especially to this podcast. And those are the political consequences on Article 3, on the Supreme Court itself. Because while I know listeners of this podcast care a great deal about process and understand that whatever rule the Supreme Court comes up with has to apply to everyone, not just Donald Trump. So if you really hate Donald Trump, you should still want a rule that can apply to Joe Biden and Barack Obama. And if you really love Donald Trump, you should still want a rule that can apply to Joe Biden and Barack Obama. And if you really love Donald Trump, but think Joe Biden should be in jail or Hillary Clinton or whatever, then you should want a rule that's going to apply to them as well. Unfortunately, you are basically alone in this belief. And so whatever rule the Supreme Court comes up with,

I think could have big institutional consequences for the Supreme Court comes up with, I think could have big institutional consequences for the Supreme Court. Now, if it's a convoluted enough rule, like the one that I've suggested, I think they'll come up with, then I don't think either partisan side is going to really get their grappling hooks into why the Supreme Court needs to be torn down and why it's a terrible institution and all these things. But someone will, and it will take hold among some corner of the political world. And potentially that could lead to more calls for court packing, for impeachments, for term limits, for all of the things that were part of that Supreme Court commission that Joe Biden had at the beginning of his presidency.

court commission that Joe Biden had at the beginning of his presidency. I don't think in this case that those concerns will animate any of the justices in terms of how they're going to come out in this case. And, you know, I've obviously talked about that institutionalist axis and part of that institutionalist axis is being concerned for the health and well-being of the institution of the Supreme Court itself. But it's kind of helpful, I guess, when 50% of the people are going to hate you no matter what, because then there isn't really an institutional answer to the question at all. And in that sense, yes, I think it will affect the institution, the politics will affect the institution, but I don't think it will affect the justices within that institution when it comes to figuring out the outcome of this case. And you could just really see that in all of the questions at oral argument. All of the justices

at one point or another said, stop talking about this case. I don't want to think about the facts of this case. I want to think about how this applies in the future. It was, I don't know, it was sort of the justices at their best, actually. I think the advocates did a fine job. I wouldn't put it in the top or the bottom of any of the oral advocacy I saw, but the justices clearly felt the weight of history on their shoulders that this is going to be a decision that affects every future president and those sort of partisan moments going forward each side trying to get the other side an exact revenge in an endless cycle and the supreme court's trying to come up with a rule as sort of the adults in the room that's constitutional

that can be easily and fairly applied so it can't be too convoluted um these are the days that you don't envy being a supreme court justice Shop with Rakuten and you'll get it. What's it? It's the best deal. The highest cash back. The most savings on your shopping. So join Rakuten and start getting cash back at Sephora, Old Navy, Expedia, and other stores you love. You can even stack sales on top of cash back. Just start your

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