Advisory Opinions - Trump Is ‘Absolutely Immune’ ... Kind Of

Episode Date: July 1, 2024

Sarah and David break down the Supreme Court decision in Trump v. United States. The Agenda: —Unanimous decision on Moody v. NetChoice —SCOTUS stat pack —Three buckets of immunity —Immunity takeaways: yes, no, and maybe —Presidential immunity and accountability —The role of the electorate in holding presidents accountable —Does the Constitution prevent despots and tyrants? Show Notes: —David's NYT op-ed on SCOTUS and the pro-life movement Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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fresh lemons. The perfect balance of sweet and sour with a crisp, sesty edge. Welcome to the Garage, the place of refreshing hard lemonade. Available at the LCBO. Must be legal drinking age. Please enjoy responsibly. Ready? I was born ready. Welcome to a special July 1st edition of Advisory Opinions. That's right, we have the Trump immunity decision. It is 6-3 holding that presidents do enjoy some absolute immunity,

some presumption of immunity, and no immunity for some acts as well. We're gonna dive into all of that. But David, we also got the NetChoice social media decision and the CornerPost decision. Just very quickly on those, CornerPost is on the statute of limitations of when you can challenge an agency action. That was also 6-3 along these ideological lines.

We'll definitely talk about that decision later because it may have more impact on the country than any of this other stuff. Net choice, we got that choice wrong. So first of all, a unanimous decision, but it's much weirder than we thought it would be. Yes, so bottom line, we got it wrong. But at the same time, I'm reading Kagan's opinion

and I'm thinking she's totally with us on our analysis of it and sort of the underlying constitutionality of the idea of the government coming in and telling social media companies how to moderate, but she doesn't like the way the facial challenge worked out. So it's a very weird case in the sense that it feels like it just telegraphed how all of this has to turn out, but you didn't get from A to Z the right way. So go back and reach the inevitable results in a different way.

It's kind of how it felt to me. Yes, they basically held that the lower courts, but the 11th circuit and the 5th circuit had not analyzed this correctly as a facial challenge, meaning the law is unconstitutional in all or nearly all of its applications because both courts really were only looking at, you know, Facebook feeds, Twitter feeds, things like that, and not some of the other products that they offer

and whether the law even touches those products, but then also went out of its way to say, the 5th Circuit though, especially got this wrong. And remember, the 11th Circuit had struck down Florida's law. The Fifth Circuit had upheld Texas's law. I don't know, David, it sort of reminded me of the Idaho abortion case in a few ways. We're sending this back. We're not deciding it now, but in the meantime, we're definitely striking down your law, as in your law will not be in effect while this whole thing percolates. Maybe they're just waiting for the political system

to sort of cool down with the culture wars in an election year and hoping they don't actually have to make law on this. But in Idaho, right, Idaho's abortion law is not in effect. In Texas, Texas's social media law is not in effect. Yeah, and that's, I'm glad you're highlighting this because I wrote about the Idaho situation on Sunday and one of the, you know,

there generated a lot of back and forth on it. Was I reading too much into it? Was I reading too much into how Barrett discussed it? And I don't think so because the way the case ended up with the district court's decision still in effect, which was blocking the law. Similarly, with Kagan, I'm glad you compared that to Idaho. I felt like Barrett's concurrence in Idaho and Kagan's concurrence in NetChoice, both

provide, I mean, Kagan's opinion in NetChoice, both provided a roadmap going forward that here's what you got to do going forward that's going to result in a particular outcome virtually inevitably. But you just didn't get there in the right way yet. But let's not kid ourselves, we're going to have to do a lot of time on the Net Choice opinion because, yes, the opinion was delivered from Justice Kagan, joined by the Chief Justice Sotomayor, Kavanaugh, and Barrett in full.

Jackson joined most of it. Barrett filed a concurring opinion. Jackson filed a concurring in part, concurring in the judgment. Thomas filed an opinion concurring only in the judgment. Alito filed an opinion concurring only in the judgment in which Thomas and Gorsuch joined. So there was definitely some three, three, three alignments

going on in this as well. We will return to net choice on another day because we have that Trump immunity case. And just real quick, David, before we do that, I do want to give the final SCOTUS stat pack for this term. And I'll tweet some of this out and probably write it up for the dispatch just for other people to have it. But this is a very different term than last term. So 78% of the decisions had one liberal justice in the majority. That's much lower than the 89%

that we saw last term. There were 31 non-unanimous decisions, meaning a slight majority of decisions were not unanimous from the court. And in terms of the justice, most likely to be in the majority, we have a new champion after Justice Kavanaugh. Was that justice since he joined the court? This term, it was the Chief Justice,

who was in the majority 97% of the time, followed by Justice Kavanaugh, who was 95%, followed by Justice Barrett, who was 92% of the time. The three justices least likely to be in the majority were the three liberal justices. And boy, David, if you only look at the non-unanimous opinions and run those same numbers, the three liberal justices were not in the majority, the majority of the time. So for instance, Justice Sotomayor was dissenting 58% of the time in those non-unanimous cases.

Yeah, yeah. It's interesting, cause we talked about this paradox a little bit because it did seem like a much more partisan court, but at the same time, there were multiple decisions that were really quite consequential that did not work out sort of the way, you know, that what we've referred to, or maybe I've only referred to them as like right-wing reach goals, sort of the defunding mechanism of CFPB or expanding standing to get to MIFA Prestone or a number of cases where, or the Murthy case where it's like, wait a minute,

we need to really expand the ability of people to challenge government interaction with private entities, that there were a number of things that the court rebuked sort of the larger right, so to speak. But at the same time, it was obviously a more just, I mean, partisan is maybe the wrong word, but a more ideologically divided court. So there's kind of a paradox here. Okay, well that brings us then to the Trump case. So David, I will say that I feel like I got the holding right and the vote count just very wrong.

It was a six, three decision, sort of my nightmare scenario of having the chief justice right, the majority opinion, and the three liberal justices in really strong dissent. But in terms of the holding, yeah, it's pretty much what we thought. The court says, yes, there's core functions that are going to be immune from prosecution. We don't quite know where these factual allegations

fall along all of that, and we're going to remand it for the lower courts to figure that out. Now, a lot more detail than that that we need to get into, but David, just top line, this just reads very politically charged at some points, and that made me sad. It really does. You know, so a couple of things. One, I think when you say, like, we knew going in that there were going to be elements and we talked about this. So for example, if you invest the pardon power in the president,

you cannot pass a law that says if you exercise that power, you can be criminally prosecuted. Okay, so that's the easy case. That's the easy case. But what if you pass a law that says But what if you pass a law that says if you take a bribe, you have the pardon power, but you can't be bribed into exercising it? Now, me going into this, my thought was, the court would not say that you can be bribed. The court was, and in fact, there was a lot of discussion of bribery in the oral argument.

And my thought was, yeah, there's going to be a zone of absolute immunity, but it really has to be when Congress is actually criminalizing the function itself, not all of the ways in which the function can be exercised. And here it seems like they're saying, wait a minute, if the criminal statute touches on the function, on a core function, it just can't be enforced, period. And that's broader than I thought it would be. I did not think I would see a situation where bribery, you cannot prosecute a president

for bribery. That's how I read it. I'd be very curious if you read it the same way. Bribery in the course of an official function. So if I'm bribing and paying a million dollars for pardon, I don't think he can be prosecuted for that. And similarly, you know, we all said the SEAL Team Six hypothetical, come on. But it looks to me like the SEAL Team Six hypothetical is a real thing.

And that, in fact, if he did order a airstrike in clear violation of American laws of war, that he can't be prosecuted for that. So in this sense, there was a funny tweet and it says, so Biden can't forgive student loans, but he can order a drone strike on the loan collectors. And the answer to that seems to be, yeah, yeah, I think you just kind of nailed that. And so that's what is interesting to me about this is they took this extremely broad view of what it means to impact the core power. And then that is now the standard. And when you have the, well, we can walk through it more,

but that is the thing I did not anticipate. I did not anticipate that incredibly broad view of the zone of protection around those powers. Okay, so let's break it down. Basically, in the Chief Justice's majority opinion, he says that there's gonna be three buckets. He does not use the term buckets, don't worry. Bucket number one is going to be core constitutional functions. And so the court uses this Youngstown framework. This is back from the Truman administration

about whether Truman could nationalize the steel factories during the Korean War. And the court in a footnote actually sort of breaks up when the president's acting alone, is he acting in his core powers, is he acting with Congress, or is he acting against Congress? That's kind of how they're going to analyze this in some ways, here Congress of course being the one criminalizing the conduct. If the president is acting in a core executive presidential power. Think your pardon power, like you mentioned, David, then he's absolutely immune.

I.E., like you said, Congress can't criminalize something that is solely within the power of the president. Now, I mentioned the pardon power. It's kind of important what else is in that. Removal power. So while you have to have the advice and consent of the Senate to appoint officers of the United States if you're the executive, you don't to remove them. And the court has been really consistent over 100 years that the president has sort of the sole and total removal power.

So that's also a core power. And that's going to be important because that's going to be the DOJ charge that I've said all along. The court had to take this case because they had to toss out the DOJ charge because the DC Circuit didn't analyze that really at all. I thought it was a huge mistake for Jack Smith to include it in the first place. David, just to think that we can circle back to at the end, if they hadn't included the DOJ charge, I don't know that this entire opinion turns out the way that it does. It was such an overreach by the special counsel. That's the only charge, by the way, that the majority is actually going to throw out of the indictment. The rest of it's all going to get remanded. So this bucket number one, core constitutional powers are absolutely immune. Bucket number two is going to be

all other official acts to the outer perimeter of the president's power. That's going to have a presumption of immunity. But, and this is now quoting from the Chief Justice, the president must therefore be immune from prosecution for an official act unless the government can show that applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the executive branch. Now, David, that's much closer to your bribing pardon example. You know, if the pardon power weren't a core function,

then obviously, bribing for a different official act would not intrude on the authority and function of the executive branch because you're accepting a bribe. So this is the main bucket when we come to Jack Smith's indictment that's getting sent down. And don't worry, I'll get to some of the specifics of that because the Chief Justice does as well. But just to be clear, bucket number three is unofficial acts, not immune, no interlocutory appeal on that. But they do have to actually define in the indictment which are the official acts and which are the unofficial acts

and which are the core executive function acts. So those are your three buckets, absolutely immune for the core acts, not immune at all for the unofficial acts and for all of those other official acts, maybe. So then the chief is gonna walk through each of these buckets. So unofficial acts he defines.

In defining official from unofficial conduct, courts may not inquire into the president's motives, nor may courts deem an act unofficial merely because it allegedly violates a generally applicable law, which would be totally circular. So that's really the only guidance he's going to give on unofficial acts when they send this back down. Now, on the discussions with Justice Department officials,

investigative and prosecutorial decision-making is the special province of the executive branch, and the Constitution vests the entirety of the executive power in the president. For that reason, Trump's threat and removal of the acting Attorney General likewise implicates conclusive and preclusive presidential authority. As we've explained, the president's power to remove executive officers of the United States whom he has appointed may not be regulated by Congress or reviewed by the courts. So absolutely immune on that charge. Next, this is the charges related to Trump pressuring the vice president to reject states'

legitimate electoral votes. Again, quoting from the chief. Whenever the president and vice president discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which members of Congress count the electoral votes is a constitutional and statutory duty of the vice president. The indictments allegations that Trump attempted to pressure the vice president to take particular acts in connection with his role at the certification proceeding

thus involve official conduct. And Trump is at least presumptively immune from prosecution for such conduct. The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the vice president presides over the January 6th certification proceeding, he does so in his capacity as President of the Senate.

Despite the Vice President's expansive role of advising and assisting the President within the Executive Branch, the Vice President's Article 1 responsibility of presiding over the Senate is not an Executive Branch function. So, the government may argue that consideration of the President's communications with the Vice President concerning the certification process does not pose dangers of intrusion on the authority and functions of the executive branch, but it is ultimately the government's burden to rebut the presumption of immunity. That sounds pretty bad for President Trump. And then next, the remaining allegations involve Trump's interaction with persons outside the

executive branch, state officials, private parties, and the general public, Chief Justice. As the government sees it, these allegations encompass nothing more than Trump's private scheme with private actors. On Trump's view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity and proper administration of the federal election. Of course, the president's duty to take care of the laws be faithfully executed plainly encompasses enforcement of federal election laws passed by Congress. And the president's broad power to speak on matters of public concern does not exclude his public communication regarding the fairness and integrity of federal

elections simply because he is running for reelection. Ooh, jump ball on that one. And then lastly, Trump's conduct in connection with the events of January 6th itself, Chief Justice. Most of a president's public communications are likely to fall comfortably within the outer perimeter of his official responsibilities. There may, however, be context in which the president, notwithstanding the prominence of his position,

speaks in an unofficial capacity, perhaps as a candidate for office or party leader, to the extent that maybe the case objective analysis of content, form and context will necessarily inform the inquiry. Okay, so David, just looking at the three buckets, looking at the Chief Justice running through these charges, how's Trump actually doing? Well, it's a really good question, Sarah, because in one way he's not doing as well as you might think. Because the Supreme Court is very clearly, and this went all the way back to the oral argument.

If you go back to the oral argument, page 28 of the transcript, Justice Barrett has this back and forth with counsel for Trump. And she walks through a bunch of things. And so for example, she says, "'I wanna know if you agree or disagree "'about the characterization of these acts as private.'

"'Petitioner Trump turned to a private attorney "'who was willing to spread knowingly false claims "'of election fraud to spearhead his challenges "'to the election results. "'Private, Mr. Sauer.' "'As alleged, I mean, we dispute the allegation, "'but course, and then he says, that sounds private to me. Sounds private, says Justice Barrett. Here's another one. Petitioner conspired with another private attorney who caused the filing in court of a verification signed by petitioner that contained false allegations to

support a challenge. Private? That also sounds private, this is Trump's lawyer says. So no one should think that this means that as a legal matter, the case against Trump is in jeopardy in its totality. There are counts that are in jeopardy, certainly in some that are now out. But the prosecution of Donald Trump in many ways, actually, Sarah, I think has been streamlined by this as a practical matter, but not in the timeline. Not in the timeline. So what's going to happen is this will go back to the court. It will work through the various disputes over the official acts.

Meanwhile, the private acts are just still standing out there, not part of this argument. And so the private element of the prosecution could, you know, the private element is intact. It's clarified, it's clear, it's intact. That Trump can still be prosecuted for that. But the public, the official acts element of the prosecution is all up in the air. But we can't equate those two things, the private acts part of the prosecution,

viable, ongoing, et cetera, public acts. But the bottom line is we're, in many ways, really truly on Trump's case, we're where we thought we'd be, which is this thing's gonna be tried after the election. There are viable claims against him, maybe not all the ones that were initially charged. So therefore if he loses, he's still in criminal jeopardy.

If he wins, obviously he's gonna end to the case against him. So in the Trump case part of this, we're kind of just where we were beforehand as far as whether Trump can be ultimately prosecuted. I'm much more concerned actually about the rule going forward. There's, what does this mean for presidents in the future?

And, you know, for example, I wrote about the Insurrection Act months ago about how you have this statute on the books that gives the president immense authority on their own discretion to put troops in the streets. You combine the Insurrection Act with now absolute immunity for the orders you give the troops in the streets. And you could see how a very, very bad person can get away with very, very, very bad things. And so that's the rule going forward.

But on the actual Trump case itself, he's still in tremendous legal jeopardy. It's just on which of the counts, some of them for sure, how many of them we don't yet know. And we'll take a quick moment to hear from our sponsor today, Ethos. Protect your loved ones in minutes with Ethos. It's affordable life insurance that's quick, easy, and all online with no medical exams. Just answer a few health questions for a quote

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Because while the conduct, sort of the underlying conduct, if you will, the hush money payments and all of that was pre-election, the actual indicted conduct was while he was president. Is there any argument that that was official to the outer perimeter presidential conduct? I don't think there's any credible argument that that sort of lying in your books and writing reimbursements to your private counsel counts as official conduct. No world. So this affects the New York convictions, not at all. All right. Not at all. Next up is the classified documents case

brought by the special counsel. All of that also is post presidency this time, but are they going to have to rely on evidence from during his presidency, for instance, and this becomes relevant because elsewhere in the chief's opinion, he says use of evidence about such conduct that would have immunity,

even when an indictment alleges only unofficial conduct would thereby heighten the prospect that the president's official decision-making will be distorted. Therefore, the chief's point, and by the way, this was actually only a five-four decision because it appears that Amy Coney Barrett broke off from this part of it, is that you can't use evidence that you couldn't charge in short,

even if you're charging only unofficial conduct. So David, how, if at all, do you think this is affecting the Florida case? Um, mild, mild. Just essentially what you were talking about, how much of the official, of his official actions as president can be used as evidence in the prosecution for the private acts post presidency is, that's relevant. But the bulk of this, especially, for example, the obstruction charges against him, then the obstruction charges to me seem to be wholly unaffected by this. SONIA DARA, D So, for instance, he's not charged with taking the documents from the White House. That would be an official act and it would, I think, likely have that presumption of immunity that would be hard to rebut. But he's not charged with that.

He's charged with not giving them back as a private citizen and then of course obstructing. So I don't think any of those charges are affected, although the president has a pending motion before Judge Cannon, she was waiting for this decision, which that's not crazy to me. She should wait for this decision before making a call on that.

But what I think it does affect, they're not going to be able to introduce evidence about how the documents left the White House. All of those communications that the president had with his aides, you know, pack up this, don't pack up that, throw it in the box with my underwear, whatever, that probably can't be used. I'm just not sure how necessary any of that evidence was actually going to be, because the stuff ends up at Mar-a-Lago. I don't know that we care how much, how it got there. Right, and as we've said from the beginning, the obstruction counts are the strongest elements

of that case, of the documents case, and they're just not impacted by this in any really material way. It's really interesting, Sarah, if you look at both the documents case. And they're just not impacted by this in any really material way. It's really interesting Sarah, if you look at both the documents case and the January 6th case, in hindsight you would say, well, here's the, there was a super clean path

in both cases that was more simple. And that was only prosecute for the most private of the acts in the spectrum and then only prosecute for obstruction. But I honestly think in the January 6th case, that still wouldn't have sped it up enough because there still would have been an immunity argument where they would have said even those things that you're claiming to be private were not actually private. There would have likely been an argument along those lines. There would have been a fight at the margins

of what's private and not private no matter what in the January 6th case. See, yes and no. Yes, there would have been a fight over it, but I think if Jack Smith had narrowed the indictment to only the submission of the fraudulent electors, so not communications with the vice president, not trying to remove the attorney general,

not his tweets or his speech on the mall on January 6th, none of that is part of the indictment. Yes, there could have still been a fight over whether the fraudulent electors were core or official, but outer perimeter or unofficial acts, but I just don't think the Supreme Court would have taken the case in that case because it would have been so narrow. Really? it would have been so narrow and really, presumably the explanations by the DC circuit wouldn't have been so broad that the Supreme Court

couldn't have let that stand. I do think part of the reason the Supreme Court had to take this case was the DC circuit's opinion was untenable. This idea that you can prosecute a president for whatever you want, whenever you want, by whomever you want, this is all fine." That was insane. So if there hadn't been all these steps leading up to it, and you know my thought on this, super, super, when he included removing or even he didn't remove, when he included

a president thinking about removing his attorney general and indicted that because the motives for removing him were bad, this always was going to be a huge problem. And once the Supreme Court took it, you weren't necessarily going to like the law that they made because they were going to have to make a very broad law. And in this case, by the way, I feel like a fair reading of this and tell me if you think I'm wrong is basically, yep, the Supreme Court has made it incredibly onerous at minimum to prosecute a former president for anything but the most egregious and clearly private conduct.

And that I know everyone has their partisan hats on right now, but that by and large, we're probably going to be pretty happy with that. Oh, I strongly disagree with that. But I do think that I don't, it's hard for me to imagine an immunity argument being made in the first ever criminal prosecution of a president in the Supreme Court not weighing in on that. Even if it was a narrowed, now I could imagine them, I can imagine them weighing in perhaps on a faster timeline on it being a simpler quicker opinion. I think imagine them weighing in perhaps on a faster timeline, on it being a simpler, quicker

opinion, I think. But them not weighing in on an effort to establish immunity for a, on an effort for them to establish immunity, it's hard for me to see them not weighing in before the trial. But David, if this had been the narrow, the very narrow, just the fraudulent electors, also if the Supreme Court took it, they would have actually just ruled on whether the elector piece, this only piece of the hypothetical indictment was or was not immune, which means there wouldn't be this remand. You wouldn't have to then delve into all of these facts and separate it all out.

So like to your point about it being quicker, yeah, because we would have just gotten the thumbs up, thumbs down if it had been a rifle shot indictment, but it wasn't. No, I agree with that, but I don't agree that the Supreme Court would not have taken the case. That's my disagreement. I think it would have been more streamlined. I think that's a reasonable take.

I think it's a close call of whether they would have taken it, but I think that the DC Circuit's opinion in that case had been narrow and correct. I just think there's a chance they would have sort of, you know, stamped it. I think a principle that says you can write checks to a president for pardons is something that is destined to end in tears. I'm just.

I don't like that part. And so let's get to your SEAL Team Six example. And here actually, this gets to the dissent point. So I want to read now from the dissent from Justice Sotomayor. This gives former President Trump all the immunity he asked for and more. Looking beyond the fate of this particular prosecution, the long-term consequences of today's decision are stark. The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding.

This new official acts immunity now lies about like a loaded weapon for any president that wishes to place his own interests, his own political survival, or his own financial gain above the interests of the nation. The president of the United States is the most powerful person in the country and possibly the world. When he uses his official powers in any way, under the majority's reasoning, he now will be insulated from criminal prosecution. Order the Navy's SEAL Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power?

Immune. Takes a bribe in exchange for a pardon? Immune. Immune. Immune. Let the President violate the law. Let him exploit the trappings of his office for personal gain.

Let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority's message today. Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the president and the people he

serves has shifted irrevocably. In every use of official power, the president is now a king above the law. And here I will then read the chief's response to the dissent. As for the dissents, they strike a tone of chilling doom that is wholly disproportionate to what the court actually does today, conclude that immunity extends to official discussions between the president and his attorney general, and then remand to the lower courts to determine, in the first instance, whether and to what extent Trump's remaining alleged conduct is entitled to immunity.

Like everyone else, the president is subject to prosecution in his unofficial capacity. But unlike everyone else, the president is a branch of government, and the Constitution vests in him sweeping powers and duties, accounting for that reality and else, the president is a branch of government and the Constitution vests in him sweeping powers and duties. Accounting for that reality and ensuring that the president may exercise those powers forcefully, as the framers anticipated he would, does not place him above the law. It preserves the basic structure of the Constitution from which that law derives. The dissent's positions in the end boil down to ignoring the Constitution's separation of powers and the court's precedent and instead fear-mongering on the basis of extreme hypotheticals about a future where the president

feels empowered to violate federal criminal law. The dissent overlooks the most likely prospect of an executive branch that cannibalizes itself, with each successive president free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next. For instance, Section 371, which has been charged in this case, is a broadly worded criminal statute that can cover any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government. Virtually every president is criticized for insufficiently enforcing some aspect of federal law, such as drug, gun, immigration, or environmental laws. An enterprising prosecutor in a new administration may assert that a previous president violated

that broad statute. Without immunity, such types of prosecutions of ex-presidents could quickly become routine. The enfeebling of the presidency and our government that would result from such a cycle of factional strife is exactly what the framers intended to avoid. Ignoring those risks, the dissents are instead content to leave the preservation of our system of separated powers up to the good faith of prosecutors. David, I think these are both really strong cases and the American experiment was hurtling into one of these directions, but I think it's really in the eye of the beholder of which one you think is the greater threat.

You know what's so missing from both of those? Text of constitution. So this is one of the elements of this case that's been most annoying to me and was also quite annoying about the 14th Amendment. Okay, here we have an originalist court, whether it's text, history, or tradition, text is supposed to be the core discussion here. And this idea that essentially says,

well, if the text gives them the pardon power, it therefore excludes any kind of restriction at all, even related to what, to any level of corruption and criminality, according to any definition of corruption and criminality, seems to me wildly atextual and highly pragmatic. And so what's happened is you have pragmatic argument number one says, although there's only been one prosecution of a sitting president for actions, for official acts during the entire American Republic.

We want to be as a bulwark against the next one and the next one and the next one, which you think might come down the pike, and versus a, wait a minute, if you establish this really broad rule, we could have other events just as bad as January 6th. But they're just clearly immune going into it. That going into it, you can have a president behaving just as badly as Trump behaved in the run-up to January 6th with confidence that he or she is immune. Both of those are very pragmatic arguments.

And as you know, when we've talked about these cases, Pragmatism is not divorced entirely from originalism. But this sort of idea that investing the executive power in the president has a necessary implication of protecting lawless exercises of executive power, corrupt exercises of executive power, to me is a textual bridge way too far. I, you know, my friend and former national review colleague, Charlie Cook said it really well when a lot of the, after the oral argument, he was really chagrined at how little actual conversation there was about the text

of the constitution. And while I think there's good policy, there are policy arguments for saying, okay, we need greater or lesser zones of authority for a president. To take from this that executive power is invested in the president and to pull from that, that that therefore means he has impunity for war crimes, for bribes in certain contexts. That strikes me as way outside of a fair reading of the text. Certainly there's a policy argument that you can make, and there's a policy argument you

can make in the opposite direction. Where's the constitutional text here? And it seems to me the majority is stealing a real base here because we're going well beyond, well beyond text to establish an almost sovereign view of immunity that I think is a little, more than a little disturbing. David, and the dissent brings this up, there is one textual hook for indicting former presidents,

and I'll read it to you. Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States. But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law. So obviously the dissent makes the point that like, okay, see, they did very much contemplate this in the text of the Constitution itself. And then of course, they point to other history where there was discussion over including some kind of presidential immunity.

It never happened. There was never any real discussion that was recorded at that point, even though other state constitutions already had that. So they're using that as sort of a negative inference as well. And the majority's point is that like, yeah, and you're, it doesn't say what type of actions though. So, yep, you're still subject and liable to indictment, trial, judgment, and punishment for your unofficial acts. And this is where I think I'm with you that I think it's hard to square that.

If they meant indictment only for unofficial acts, that wouldn't have been very hard to do. The founders were pretty clear on types of immunity. They could have included that in Article II at any point. I do want to mention Justice Thomas's concurrence, which raises an interesting point that I wanted to get your read on because it Basically, he kept trying to bring it up. He kept trying to make Fetch happen

Boy fetch just never happened. So this is a concurrence. He wrote by himself. Nobody joined it and it's about the special counsels unlawful appointment potentially so the appointments clause in Article 2 reads, the President shall nominate and by and with the advice and consent of the Senate shall appoint ambassadors and other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not here and otherwise provided for in which shall be established by law. But the Congress may by law vest the appointment of such inferior officers as

they think proper in the President alone, in the courts of law, or vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments. So what's the special counsel? Here's Justice Thomas's point. If the former, that he's an officer of the United States, his appointment is invalid because the special counsel was not nominated by the President and confirmed by the Senate as a principal officer must be. And if he's an inferior officer, the attorney general could appoint him without presidential nomination and Senate confirmation only if Congress by law vested the appointment in the attorney general as a head of department. But there's no such law because the, you know,

independent counsel statute lapsed, for instance, and hasn't been repassed. And that's not the power under which the attorney general claimed to appoint the special counsel. He pointed to a DOJ regulation. Now, there are some arguments that maybe there is some lawful authority that Congress has passed, but David, were you at least a little surprised that no one else wanted to get in on this? Maybe the indictment's invalid because the special counsel wanted to get in on this, maybe the indictment's invalid because the special counsel doesn't exist as an officer of the United States, obviously, but also, he can't be an inferior officer

without an act of Congress? I'm actually a little surprised nobody that the G stands alone, so to speak. Right? I mean, Jack Smith is, you know, like, the special counsel is a private citizen who's indicting the former president? Maybe we should, you know, dot our eyes and cross our t's on that one, constitutionally speaking.

I you know, it's interesting, like, that felt like as something a Gorsuch would, you know, let sort of the you know, one of our less consequentialist justices like a Gorsuch might jump in on that one as well. But I know, no, didn't want to touch that. Well, it wasn't, you know, the Trump team didn't really follow it through. They had sort of briefed it initially

and then dropped it by the time it got to the Supreme Court. So it was not the question presented. So it wasn't really briefed. And obviously an oral argument that kind of punted on it and said it's not really before the court. But still, like Justice Thomas, it's a very short concurrence, but he certainly raises some points that perhaps DOJ should look into when it comes to all these special councils that keep running around and indicting people.

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Buy a stick in store at Costco, Walmart, Amazon, and other Canadian retailers. Wherever you're going, you better believe American Express will be right there with you. Heading for adventure? We'll help you breeze through security. Meeting friends a world away? You can use your travel credit. Squeezing every drop out of the last day? How about a 4pm late checkout? Just need a nice place to settle in? Enjoy your room upgrade. Wherever you go, we'll go together. The other concurrence is from Justice Barrett. It's an interesting concurrence, David.

I was wondering if you had thoughts on it. I'll just read one portion of it. She says she would not have phrased it as an immunity issue. Instead, she would say, the Constitution does not insulate presidents from criminal liability for official acts, but any statute regulating the exercise of executive power is subject to a constitutional challenge, sort of a separation of powers challenge. And she would use a two-step analysis considering first whether the statute applies to the specific conduct, and then whether its application to the particular facts is constitutional.

Maybe it's a little circular. I don't know. Did you find it persuasive? And also, it didn't really matter because she wasn't the fifth vote. She was the sixth vote. Yeah. Yeah. I mean, I thought as a conceptual matter, it was interesting, but.

Would you feel better if we weren't using the term immunity right now? No, no, no, no, no, no, no, I would not. I would not. It is interesting, I think, I'm so glad you brought up the dissent, bringing it back to the text with impeachment, that it really does strike me that the dissent here

is actually taking the more textual approach than the majority. They have more textual support for their position than the majority. They do text history and tradition. Yeah, I know. And then the interesting thing is, okay, if you normally in cases,

you have a parade of horribles, or often you'll have two hypothetical parades of horribles. So you'll have you're challenging one side with a parade of horribles down their position, you're challenging the other side with the other parade of horribles. In this circumstance, we actually have, we don't have to have a hypothetical parade of horribles to talk about how bad a president can get. So in this circumstance, we had a president who actually instigated an effort to try to overturn the result of a lawful election

that ended in the storming of the Capitol and now is gonna be immune for part of that. Not all of it, because as we talked about some of it, the official acts will, the special counsel will be able to bear his burden probably and get some of these official acts charged, the special counsel will be able to bear his burden probably and get some of these official acts charged and the private acts will be charged. But it strikes me as if you've got two Parade of Horribles and Justice Roberts is talking about a Parade of Horribles that's never happened and Justice Sotomayor is immediately standing

in the, a few years after the tear gas is cleared from the Capitol on the other parade of horribles, one of them strikes me as more credible than the other, to be quite frank. See, when you have, you know, one of the candidates running on how he's going to indict the current president, I don't think that the chief's parade of horribles is that far-fetched.

They're saying they're gonna do it. The fact that they haven't done it yet, you know, I don't think that the chief's parade of horribles is that far-fetched. They're saying they're going to do it. The fact that they haven't done it yet. You have to decide this case before you know the answer to the question. So just if the chief were right and that Trump indicted Biden when Joe Biden left office, what would you say then about the balance between these two? Well, the odds are, well, what's he indicting him for? Not the odds, except my hypothetical, for not enforcing under the same section that

Trump's been indicted for, but this time for not enforcing the law at the southern border. Well, so he's filing in federal and US district court. it's DC circuit, a challenge. Yep, it's section 371. It's a conspiracy to obstruct the lawful function of the Department of Homeland Security of enforcing Congress's immigration laws at the border. And he's indicted down in Texas or whatever. And just accept my hypothetical. So then what would you say if that was fine to move forward under the Supreme Court's tests? I think if a Supreme, if a president's conduct is encompassed by a generally applicable,

otherwise constitutional statute that is criminal, that he can be prosecuted after he leaves office. And his defense is a defense against the elements of the crime. It is not a defense based on status, unless the crime that is charged is the crime of actually exercising the power, as opposed to a crime that would otherwise meet the elements of a federal criminal statute. So if you have-

Okay, so assume Biden is, again, this is a very broad statute. So if you have- Okay, so assume Biden is, again, this is a very broad statute. So it's any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government. So Joe Biden's indicted under that. He is convicted, because you're saying he can't raise any immunity defense

on the front end, obviously. He's convicted. The Fifth Circuit upholds the conviction because the law is super broad. We're just okay with that. And then how does that affect the presidency moving forward? So if it is a constitutionally valid criminal statute, otherwise constitutionally valid,

I do not see a constitutional basis for exempting the president. And so, yes, I agree with you, Sarah, that there are dangers to that. You deal with those dangers by statutorily or a constitutional amendment because we don't have the option of saying, reading the Constitution of the United States and saying, what is my preferred outcome for presidential autonomy here? That's not how you read the Constitution. No, but there's a separation of powers concern. And that's what the majority is getting at.

It's like, yep, you're right. There's no text here to really guide us. But there's no text about the separation of powers either. We read it into the Constitution, both horizontal and vertical separation of powers. And so this is one of those separation of powers when the president has a core function, for instance, Congress can intrude on that. And anyway, they can't make laws about it, and they can't make criminal laws about it either. That, again, I don't see any textual support for the idea that the separation of powers becomes that extreme. So for example, if you have a constitutionally valid

criminal law, it has been passed by bicameralism and presentment that accounts for the separation of powers. It has been upheld by courts, perhaps even including the Supreme Court on the underlying constitutionality of the statute. Because again, what we're dealing with here is this idea that this actual Supreme Court holding here is that, I mean, I think this is fair, Sarah.

I don't wanna go too far. I don't want to go too far. I don't want to necessarily credit everything that Justice Sotomayor says in the Parade of Horribles because it was very obvious to me that both sides were kind of sniping at each other here. But I don't see any other way of reading this other than I can write a check, well, I cannot write a check for a million dollars,

but if I could, that a president could say pardons for sale, pardons for sale. And there's no, now they could be impeached, of course, and convicted in impeachment, but a president could literally say pardons for sale. And I can't square that with the text of the Constitution, original public meaning of the Constitution. It's just, I don't know how we get there, and we're there though.

I agree that I guess I don't see the way out of the pardons for sale problem. Yeah. And I'm surprised because I think there were ways out, basically you just don't need to have bucket number one. You can always have this sort of quasi balancing test, if you will, which is the one that they set up for the non-core official acts. Basically, the president must therefore be immune from prosecution for an official act, unless the government can show that applying a criminal prohibition to that act would pose

no dangers of intrusion on the authority and functions of the executive branch. pose no dangers of intrusion on the authority and functions of the executive branch. So why shouldn't that sentence stand alone rather than except for core official acts? Because that takes care of your SEAL Team 6 problem. It takes care of your bright. It takes care of all of the parade of horribles. So why carve out the official acts at all? I don't know. Because I think you and I could probably agree on what that sentence was as a balancing act on official acts.

Now, we may disagree on interlocutory appeals, whether you get to appeal it before your conviction or after your conviction and those things. Happy to thumb wrestle over that, but frankly, we wouldn't be arguing over that much in the grand scheme of things. Your point is well taken though, unlike why have absolute immunity for core official acts from criminal prosecution, which I think is very different than the absolute immunity that the Supreme Court has held adheres to civil liability? Because we're just not that concerned about civil liability that, you know, there is absolute immunity from civil liability for official acts, even to the outer perimeter. That's because literally anyone can bring a lawsuit.

So you're also talking about just a much bigger problem, a much more obvious problem. Although to push back on your point, David, a little bit, remember that they didn't even have to rule on that until quite recently. So this idea that like, oh, it's never happened in history before, well, yep. So our recent history has been pretty bad on this.

So we had to establish the absolute immunity for civil liability. And then we have to answer the question about criminal liability for the first time, which I think it undermines the narrative of like, well, we've never said that presidents were immune from criminal liability in the history of our country. We've never been asked the question before.

So that's not a good sign for the health of the Republic one way or the other. True. And I think you raise such a good point, because my core problem with this case is the absolute immunity ruling, not the presumptive immunity element. Because it is very easy to say, for example,

that if you're talking about the portion of the test where it says, unless the government can show that applying a criminal prohibition to that act would pose no danger of intrusion on the authority and functions of the executive branch. A bribery statute. A bribery statute, come on. And then I wanna go to-

And maybe in a specific application, we get to bribes versus gratuities and all of that, fine. But the presumption of immunity in that balancing test, I think would solve a lot of those problems. And by the way, would still end up exactly where wherever this case is gonna end up. Under that, you know, doesn't intrude, you would still have to toss out the DOJ charge

because obviously that intrudes on the powers of the executive branch to be able to remove executive branch actors. And on the other side, of course, we'd still end up, I'll read here from Justice Barrett's concurrence where she takes on the more specifics of the Arizona related charges. She says, for example, the indictment alleges

that the president asked the Arizona house speaker to call the legislature into session to hold a hearing about election fraud claims. The president has no authority over state legislatures or their leadership, so it was hard to see how prosecuting him for crimes committed when dealing with the Arizona House Speaker would unconstitutionally intrude on executive power.

Great, so under just that one test, David, we've tossed out the DOJ claim that I think is a real constitutional separation of powers problem and we've indicted him for the Arizona claim because it doesn't pose any danger to his executive branch function. So why include the core function thing? It's a problem. Thank you, Sarah. Yes. Yes. Yes. That's so exactly right. And so for example, let's just play it out with you have this test that we're both saying

is the better test. I want you to go Mr. Attorney General, Acting Attorney General, because you're not carrying out my directives. Okay, that's, if you say we're gonna prosecute a president for that, that's getting super close to core. Right, that's getting super close to the- We're getting into motives of the president

for removing his- Right, his functionaries. And there could be mixed motives. What if 90% of the motives were fine, but then 10% were actually because he wouldn't do, you know, like that's a mess. But here's another one. Um, Mr. President, I'm going to wire $15 million to your bank account to make me attorney general. That, that's a different deal, man. That's why that element of the absolute immunity strikes me as just dangerous. It's just, and let me deal very quickly

with the war crimes element of this, the drone strike element of this. Cause I think a lot of people get a little bit, they don't know what a war crime is. they don't know how they're prosecuted, they don't know anything about this, and then they say, well, Obama could have been indicted for the, you know, Anwar al-Awwaki strike in Yemen. No, he could not have. No, he could not have. Where were the indictments for the drone operator in that case?

If that was a war crime, where are the indictments for the drone operator? What you often have in the war crimes argument is people arguing about what war crimes are and are not from a philosophical standpoint when we actually have a code of laws in the United States of America that defines these things. And so a lot of this sort of, well, we really have to protect the president or he's going to be indicted for individual airstrikes or indict... No, no, no, no, no, no, no.

This is not the way that works. And so a lot of this is some of the parade of horribles about the limitations on presidential power are linked to failure, just complete misunderstandings about sort of even the laws of war themselves, which as you and I both know, Sarah, from all of our conversations around October 7th is just incredibly widespread. But again, that just, why do you go to the absolute immunity? Why can't you have this test that says that the test that's being applied to the outer perimeter being applied to the absolute immunity? Why can't you have this test that says,

the test that's being applied to the outer perimeter being applied to the whole perimeter? It's very interesting to me. It's interesting. I wonder, you know, justices are people, right? Yeah, yeah, for sure. Justice Kavanaugh, the Chief Justice, both worked in the Department of Justice.

Justice Kagan did as well, obviously, as Solicitor General. It's an interesting, you know, we have the Reagan administration, Bush administration, and Obama administration represented on the court. And I'm probably forgetting Justice Alito at one point worked, but I forget which administration. They have a really firsthand view of the executive branch in a way that's sort of interesting that we don't have

congressional interests represented on the court. executive branch in a way that's sort of interesting that we don't have congressional interests represented on the court. And I do feel like this was a what's your greater fear for the functioning of the executive branch and asking people who almost all at one point or another have worked in the executive branch. Right, exactly. No, it's fascinating. And branch. Right, exactly. No, it's fascinating. And let me, you know, this is one final thought for me. I don't know if you have additional thoughts, but this is sort of like, I'm still processing it in real time. And so we'll have more thoughts. But here's one last thought. The bottom line, what the Supreme Court is telling us here and with the 14th Amendment case, it's really truly, it's up to y'all, to the American people. That's what the Supreme Court is ultimately doing,

is they're saying the actual backstop for the integrity of the president and the actual backstop for the honor and virtue of a president is the American people. And we're not going to erect too many additional backstops at all. The 14th Amendment is essentially gone as a backstop in the absence of congressional action.

He's gonna have a lot of immunity. So it's just really up to you, American people, which only makes the events of the last week all the more disconcerting when you look at what we, the choice that we're confronting right here, which is more grim than we even thought a week ago. It's also interesting, David, along those lines, because the Supreme Court, as we said in the last episode, has been reigning in executive power through all of these other administrative law decisions. And this is a very different decision than that. It was

interesting because I heard one legal commentator talk about how this was evidence that the Supreme Court had no interest in reigning in Trump's power in a second Trump administration. And I was like, wait, what? We have plenty of examples from the first Trump administration. And then you have all of these cases that just were this weak that have been criticized as reigning in executive power too much. It seems to me like this doesn't follow a long line of cases. That's the very issue in some ways,

is that the court has repeatedly through, I mean, again, whether you want to talk about student loans or the census question or jarkacy on jury trials or any of these others, curtailing executive power vis-a-vis both the courts and Congress, except here. Yeah. Yeah. No, you're right. You're right.

It's very interesting, and I'm glad you brought that up as well, because it is inconsistent with so many other elements of what this court has done. I mean, it has been probably the most anti-presidential power court in my lifetime until this very moment. And you and I are pretty anti-presidential power.

I guess, if I were to try to square the circle, I would say they're stripping power from the executive branch and from the president. But for that power that remains, they're trying to make sure it is executed, you know, fearlessly and without sort of partisan rancor, which, and to your point, and that it's up to the people of the United States to elect people who don't commit crimes. That unfortunately the Constitution is not going to prevent despotism, tyranny.

It's really not made for that. It was made to make it unlikely as possible that the American people would elect a wannabe tyrant, a demagogue, whatever you wanna call it. But that at the end of the day, if they do, the Constitution isn't really going to be a bulwark against that once it's happened. Well, I would put it this way,

the Constitution has a lot of barriers against despotism, but they all can be broken by the people. That's what I mean. Yeah. At the end of the day, it's sort of like the Titanic. It's made to be as unsinkable as possible. But if the bad thing, you know, if you breach hull number one that flows into two, three, four, five, six, seven, eight, nine, ten, you breach all of them, then yeah, the ship just goes down.

The Constitution doesn't then have like buoys that shoot out and keep the thing afloat. So let me can I can I read, can I read from John Adams? Love, love. That curmudgeonly bastard. Because we have no government armed with power capable of contending with human passions unbridled by morality and religion,

avarice, ambition, revenge, or gallantry would break the strongest cords of our constitution as a whale goes through a net. Our constitution was made only for a moral and religious people. It is holy and adequate to the governance of any other." Now I would highlight moral here in that sentence, more than religious, because we know a lot of religious people are quite immoral. But this was made for immoral people. It is wholly inadequate to the government of any other. And I think that we are learning that afresh.

Well, David, I think we should leave it there and pick up with NetChoice and Little Corner Post. We've got Purdue Pharma, bankruptcy to get to. We're going to talk about the trends of the court as a whole from my stat pack. But for now, I think that's exactly where we want to end this podcast. The end of the Supreme Court's OT 2023 terms. Thanks for listening. That's a good pod. Great pod. And by the way, I just love doing this pod. I love you, David. It's such the best. Sarah, this is just the best. All right, go. I'm glad we're in constant communication.

Bye, friends. Alright, see ya.