Trump's Trials - Supreme Court likely to deny blanket immunity but could limit scope of prosecution

Episode Date: April 25, 2024

For this episode of Trump's Trials, NPR's Michel Martin speaks to Chief Legal Affairs Correspondent Nina Totenberg, Washington Desk Senior Editor and Correspondent Ron Elving, National Justice Correspondent Carrie Johnson and former White House Counsel Neil Eggleston. On Thursday, the Supreme Court heard oral arguments over whether former President Donald Trump is immune from criminal prosecution. A majority of the justices appeared skeptical of blanket immunity. But some of the conservative justices hinted at the need for some immunity for certain actions taken while in office. The speed at which the court releases an opinion could determine whether the federal election interference case goes to trial before the November election. Topics include:- Justices' questions- Scope of immunity - Private vs official acts - Impact on federal election interference case Follow the show on Apple Podcasts or Spotify for new episodes each Saturday.Sign up for sponsor-free episodes and support NPR's political journalism at plus.npr.org/trumpstrials.Email the show at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

It's Trump's Trials from NPR. I'm Scott Detro. We love Trump! This is a persecution. He actually just stormed out of the courtroom. Innocent to proven guilty in a court of law. It has been a big day in the world of former president Donald Trump's legal battles. This episode is going to focus on the Supreme Court. We are about to drop another episode in the feed though that's all about the latest in Trump's hush money trial

that's underway in New York, as well as the latest indictments that came out of Arizona related to the fake electors plot in 2020. But first, the Supreme Court heard oral arguments for nearly three hours over whether Trump or any other president is immune from criminal prosecution. The justices appear skeptical of Trump's claim of blanket immunity for a sitting president,

but some of the conservative justices on the court did seem wary of disregarding immunity completely, suggesting that presidents should enjoy some level of protection from criminal prosecution. We will probably not get their decision on this until late June, which is a win for Trump because it only makes it more likely that the federal election interference case facing him will not go to trial before the November election.

Stay with us. When we come back, we'll have reaction to today's oral arguments. Hey, I hear you have a birthday coming up. Yeah, you. If you're listening to this, that means you have a birthday coming up eventually. And here at LifeKit, we want it to be a special one. Magic can happen and good luck can happen and serendipity can happen if we're open to it.

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Detro. And now, here's Michelle Martin. Michelle Martin The justices heard arguments for well over two hours. We have been listening here in the studio with NPR's national justice correspondent, Here's Michelle Martin. Michelle Martin, Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D., Ph.D, Kerry, let's just start with you. First of all, just give us your top-line takeaways. Kerry Sautner You know,

the majority of the justices that I heard seemed uncomfortable with giving former President Donald Trump for the first time some kind of blanket immunity. And the most outrageous and extreme hypotheticals his lawyer was suggesting, things like being able to assassinate a political rival, mount a coup, order the military to kill other people. At the same time, the conservative justices seem very concerned about the possibility of crippling future presidents and tying their hands, and also the concern they shared about potentially bad actors engaging in fruitless and groundless prosecutions of presidents and really tying their hands.

On the other hand, Michelle, there was commentary from liberal justices like Elena Kagan saying, hey, our founders could have created immunity in the Constitution. They didn't do it in part because they were responding to the country breaking away from a monarch who had that kind of all-encompassing power. Mr. Eggelson, what stood out to you? So what really stood out to me was the amount of time that was devoted to the issue of whether an act was an official act or a private act. And it had a lot of very interesting sort of ramifications to it.

First is that Mr. Sauer representing Mr. Trump, two of the justices, Justice Barrett and I think Justice Kagan, went through various portions of the indictment and asked him, was this a private act or is this a public act? On nearly all of them he said this is a private act. So let me be really clear what that means. What that means is he's agreed that most of what's charged in this indictment cannot be protected by immunity. There will be a case when this is over.

There may be more things happening as a result. I'll get to that in a second. But he essentially acknowledged as to most of it, I think, it fell within the category of private. Now, his argument was that official acts were absolutely immune, but not that private acts were absolutely immune. And so that's a significant difference. Remember, Mr. Trump sort of wins, if he will, on two theories. First, if he wins that official acts are absolutely immune, but second, he wins if he gets a delay.

And so what we, I think we saw Mr. Sauer trying to do a fair amount, and Mr. Grieman came back to it at the end, and I'll talk about it in a second, was to argue that there had to be a line drawn, that this court had to sort of make decisions about where the line between official and private was going to be. Then it had to go back to Judge Shetkin. Then it would have to go to the D.C. Circuit and presumably could at least be sought for additional review in the Supreme Court, all of which is sort of designed, I shouldn't say designed, but would have, if that process took place, there would not be a trial before the election.

The effect of, it would have the effect of, and, you know, we could speculate about motivations, which is what I'm going to ask. Ron Elvig, I'm going to ask, what stood out to you? It's clear that some of these justices are uncomfortable with the sort of summary judgment, let's call it, that I don't mean to use that term with a precise legal meaning that it sometimes has, but just the sort of dismissal of the Trump position that some had expected. Obviously, back in December, when the special counsel asked for the Supreme Court to take this up and just dismiss it out of hand, the idea that former President Trump could get away with anything that he might have done and that he didn't have any

kind of a prospect of a trial because he simply could not be tried on those charges. He wanted there to be some kind of quick resolution because Judge Shetken had already said, this doesn't fly in my court. And the court, that is the Supreme Court, said, we want to hear from everybody along the various stations of the cross. We want to hear from the trial judge, then we want to hear from the appeals court for the federal appeals level here in the district.

And they weighed in with a very strong opinion, very much supporting Judge Chutkin. But then the justice has said, no, we've got to take this on. Now, you can look at that in various ways. You could say it's an overwhelming sense of institutional responsibility. After all, as several of them said, we've never been able to resolve this question before. It's never been asked of us before. So you could see it that way, or you could see it as perhaps prolonging the process with an eye towards the supremacy of the Supreme Court. See it any way you like.

Danielle Pletka Very briefly, Kerry, there's a question about whether the public, the broader public sees this court as it would like to be seen, as kind of independent, independent-minded jurists who are just taking questions of the law. And there's a question about whether they are seen now as partisan actors. They're not, you know, as, you know, they are, of course, judges, this is the highest court in the land, but there is this concern that they are actually seen as partisan actors. Did you see any of the questioning that was meant to address that concern?

Maybe not meant to address that concern, but certainly that did address that concern. Remember, Michelle, Amy Coney Barrett, a Trump appointee, famously said a year or two ago that we are not partisan hacks. And Justice Coney Barrett was quite tough on Trump's lawyer, leading him through a set of facts the Justice Department alleges the former president engaged in, specifically with respect to fake slates of electors and other steps the former president took to try to subvert the 2020 election. Those questions came from a justice appointed by Donald Trump. Let's go to our colleague, Nina Totenberg, who has been in the court listening to these

arguments on site. Nina, welcome. Thank you. What stood out to you? Well, you know, you have to count heads. And when you count heads, I would have to say they look like there are five votes anyway to at minimum slow down this process so that there's not going to be a trial in all likelihood before the election or maybe even after the election.

Or in the alternative, there are five people who are at least interested in giving some sort of immunity to the president that is broader than conceived of, I think, by the prosecutors in this case. And where you draw that line is unclear, but when you, Thomas, Kavanaugh, probably the Chief Justice too. And the most dubious, the most doubtful of some of these assertions, I would say, was probably Justice Barrett. But even she, I think, has some greater view of presidential protection than the prosecutors would likely be comfortable with. Now, I'm not predicting this because, you know, these people are going to go back literally today and discuss what they just heard. And they will have to come up with some sort of a guiding principle for the future, as Justice Gorsuch said, for the ages. But you could see that many of the

people in the conservative majority have worked for presidents and watched them worry about the legality of what they do and be plagued by worries about the legality of what they do. So in that sense, it was pretty illuminating, I would have to say. Let's go to some of the key moments, and we can just start with a question from Justice Gorsuch who raised the point that a number of you have raised about whether this case should be decided on an expedited basis or whether it should go back to the DC Circuit Court to determine what is a personal or official action. Here's Justice Gorsuch speaking with Trump attorney John Stour about this. And that left open in that case the possibility of further proceedings and trial.

Exactly right. And that would be a very natural course for this court to take in this place. The court can and should reverse the categorical holding of the D.C. Circuit that there's no such thing as official acts, especially when it comes to... But you'd agree further proceedings would be required. That is correct. And let's talk, let's hear another moment of argument. This is from one of the more progressive liberal justices, Katanji Brown Jackson, raising

something that Carrie talked about, the concern that a lot of the progressives raised, or the liberal justices raised, which is that presidents would be unconstrained. Here it is. Why is it, as a matter of theory, and I'm hoping you can sort of zoom way out here, that the president would not be required to follow the law when he is performing his official acts. Everyone else, everyone else, there are lots of folks who have very high-powered jobs, who make a lot of consequential decisions,

and they do so against the backdrop of potential criminal prosecution if they should break the law in that capacity. And we understand and we know as a matter of fact that the President of the United States has the best lawyers in the world. When he's making a decision, he can consult with pretty much anybody as to whether or not this thing is criminal or not. So why would we have a situation in which we would say that the president should

be making official acts without any responsibility for following the law? And before we go back to the panel, I just want to play this exchange here that, Carrie, you referenced earlier between Justice Amy Coney Barrett and Trump's lawyer John Sauer. She was reading here from the special counsel's brief. This is a list of the things that President Trump is alleged to have done. And I want to know if you agree or disagree about the characterization of these acts as private. Petitioner turned to a private attorney, was willing to spread knowingly false claims of

election fraud to spearhead his challenges to the election results. Private? As alleged. I mean, we dispute the allegation, but that sounds private to me. Sounds private. Petitioner conspired with another private attorney who caused the filing in court of a verification signed by petitioner that contained false allegations

to support a challenge. That also sounds private. Three private actors, two attorneys, including those mentioned above, and a political consultant helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding. And petitioner and a co- helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding, and Petitioner and a co-conspirator attorney

directed that effort. You read it quickly, I believe that's private. I don't wanna. So those acts you would not dispute. Those were private, and you wouldn't raise a claim that they were official. As characterized, we would say, your honor, if I may, what we would say is official is things like

meeting with the Department of Justice to deliberate about who's gonna to be the acting Attorney General of the United States. Sure. Communicating with the American public, communicating with Congress about matters of enormous concern. Thank you. Thank you. Kerry, how important was this and what are you going to be looking for going forward?

I thought it was an important exchange, but I think it may have been slightly complicated by questions from other more conservative justices today like Samuel Alito, Neil Gorsuch, Brett Kavanaugh, really expressing misgivings. They wanted to run away from the facts of this case against the former president, Donald Trump, at least as alleged by the special counsel Jack Smith, and to speak more broadly to future presidents and potential constraints on future presidents and what future bad prosecutors might do in the federal government or the state government. And I think, Michelle, that means that we're going to get an opinion that takes a long time and could send this case back and key questions in it back to the district court judge, which would require

more work from her and make the likelihood of a trial before the election vanishingly small. You like us, and what about you? Final thought here? Sure. So what struck me is at least obviously among many of the justices, there seemed to be an interest in at least seeing whether there was a way to preserve some kind of immunity for official acts, which is contrary to what the DC Circuit had done.

I think as they think about what that rule is, they have to think about the various hypos that were presented and how they would protect against those. You know, the very first question from Chief Justice Roberts was, what about a president who's paid a million dollars to appoint somebody to be an ambassador to a country? Is that an official act or is it not an official act? Well, appointing an ambassador is an official act. And Mr. Sauer tried to kind of walk away from it, but the chief justice said, well, how do you ever if you can't prove that he made the appointment, you know, sir, how can you really walk away from this? You can imagine others. What about a president who were to say publicly, I will

pay, I will give a pardon for a million dollars per pardon, and I will pardon you for your underlying crime and for bribing me. That, you know, there are hundreds, if not thousands, of people who would pay a president a million dollars for a bribe. They talked about ordering the military for a coup. I think that as they think through what their rule would be, they have to be worried, as Justice Jackson said about the end, and I think Justice Kagan talked about this a little bit, is creating a free crime zone in the Oval Office.

Nina Totenberg? Well, they might be worried about it, but most of the conservative justices have served in Republican administrations at a time when Democrats often controlled Congress and, in their view, harangued and tortured the person they worked for. And that is, I think, reflect, that experience was reflected in the desire to walk away from, to rather embrace some kind of rather broad immunity for a president. And, you know, at the end, clearly, defense counsel, Trump's counsel, knew that all he could do was lose if he talked anymore. So when it came time for the rebuttal, he amazingly shut up and said, I have nothing

further, Your Honor. Danielle Pletka And Ron Elving, before we go, I just want to mention our colleague Scott Detro was outside of the court before the arguments and during the arguments, and notably, he tells us that there was almost nobody there, which I don't know how to read that. I mean, the line to get into here, the arguments was the same as it usually is a lot of students. There were some expected theatrics, people dressed up in kangaroo heads or whatever. So how do you think this is going to be received by the public? I mean, people who have time to watch these things and to take it in.

I suspect many people will have their previous judgments confirmed. If the court should decide to prolong this process in the way we've been describing it, if it goes back to the district court, if a lot has to be expunged, then that has to be reconsidered by the circuit level, then it has to come back to the Supreme Court. We're well into next year. I think a lot of people are going to see that as whitewashing Donald Trump. Now, the justices said over and over, we're not talking about this case, we're talking about the future, we're talking about the ages. Well, all right, but what most of the public thinks is that we're talking about Donald Trump right now.

And many people are going to have their preconceived notions of all of this confirmed if the justices put it all off. And we've already seen the Supreme Court take a lot of a major hit in its approval from the public, 20 points worth, over the Dobbs decision. So this isn't going to bring any of that back if they choose not to, if you will, move the process along in the prosecution of Donald Trump. Danielle Pletka Kerry, what else is on the table here for President Trump legally?

Kerry Sautner Well, you know, he's currently on trial in New York City, where he addressed this case today, saying the case at the Supreme Court was not about him, it was about future presidents. And what else is on the line, Michelle, is he's got two other prosecutions, one in Florida over classified documents and another in Fulton County, Georgia, over alleged election subversion. And so if President Trump wins this election and the federal cases have not yet been tried, it seems likely, then he could make those cases go away.

Thanks for listening to Trump's Trials from NPR. Keep an eye out for more episodes like this whenever big news happens. And we'll be back later this week with our rake of a show on Saturday. I'm Scott Tetreault. There are a lot of issues on voters minds right now. Six big ones could help decide the election. Guns, reproductive rights, immigration, the economy,

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