Trump's Trials - Supreme Court to hear oral arguments on presidential immunity

Episode Date: April 24, 2024

For this episode of Trump's Trials host Scott Detrow speaks with NPR Justice Correspondent Carrie Johnson. On Thursday the Supreme Court will hear oral arguments on whether former President Donald Trump is immune from criminal prosecution. Trump is charged with four counts related to alleged efforts to overturn the 2020 election. But he is claiming since he was president at the time he cannot face prosecution. If the Supreme Court sides with Trump, the federal election interference case is dead. If they side against him, the case moves forward, but the likelihood of it going to trial before the November election is slim. Topics include:- Immunity arguments - Why did the Supreme Court take this case- Potential trial timeline 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. Since we have launched this podcast, we have talked about this interwoven mix of criminal trials taking place up and down the East Coast. Tomorrow, we will see the most dramatic example of that yet. In New York City, former President Donald Trump will be in a criminal courtroom listening to the first week of witness testimony in his hush money trial. And about 200 miles south, the U.S. Supreme Court will hear oral arguments on a crucial question — whether or not a sitting president has criminal immunity. And that is what we are focusing on in today's episode.

The court's decision will have big implications on the rule of law in this country, and it will also have more immediate implications for one of Trump's other pending criminal trials. Remember, Trump is charged with four federal felony counts related to alleged efforts to overturn the 2020 election. And as he has tried to delay that trial or get the charges dismissed, he has argued that since he was a sitting president at the time of the alleged crimes, he cannot be criminally prosecuted.

This argument was heard by a three-judge panel in the D.C. appeals court earlier this year. You might remember this moment from oral arguments. Could a president who ordered SEAL Team 6 to assassinate a political rival who was not impeached, would he be subject to criminal prosecution? If he were impeached and convicted first. So your answer is no. My answer is qualified yes. And that panel of federal judges unanimously ruled against Trump, writing, it would be

a striking paradox if the president, who is charged with upholding the Constitution, were the sole officer capable of defying those laws with impunity. Trump then appealed to the U.S. Supreme Court, who agreed to take up the case, and here we are. If they side with Trump, the federal election interference case is dead. If they side against Trump, the case moves forward, but the path to a trial before the November election is pretty narrow. So big stakes to say the least. After we come back, NPR Justice correspondent Carrie Johnson joins us to get you up to speed

for Thursday's Supreme Court oral arguments. On It's Been a Minute, we're keeping you in the know when it comes to culture. I break down the latest trends and the forces behind them and introduce you to the creatives who think deeply about how we live today. Come for some good old cultural analysis and have a few laughs with me. Listen to the It's Been A Minute podcast from NPR. And we are back with NPR justice correspondent, Kerry Johnson. Hey, Kerry. Hey, Scott.

Do we expect similar arguments to what we heard back in January for this appeals court hearing on this? Mostly similar, but with a twist. What we're likely to hear from Trump's lawyer, John Sauer, is that prosecution or the threat of prosecution presents a mortal threat to the presidency, that a president can't function if he's subject to prosecution once he leaves office. And this whole idea could incapacitate presidents in the future. He's also going to argue that the Supreme Court has recognized some form of immunity for presidents in the past with respect to civil cases and money damages, and that that immunity in his view should also flow in the criminal context.

Finally, this is a bit of a new argument for the former president's team. They're arguing that these four federal charges filed by the special counsel Jack Smith in DC, that these criminal statutes do not apply to the president himself. Now as for the special counsel, we're going to hear again and again as we have all along the idea that no person is above the law, a president, a former president, no one. And that what happened on January 6th was an unprecedented assault on the democracy and that this was a private action that Donald Trump allegedly undertook with private lawyers, people like Rudy Giuliani and John Eastman, names you know, to a private end, toward a

private goal. And that private goal was clinging to power even after he knew he lost to Joe Biden in 2020. And so that's going to be the push and the pull. And what the special counsel is also going to argue, and I think Michael Drebben, a longtime Supreme Court advocate working for the special counsel, is going to be the guy making the argument tomorrow. Drebben is going to argue that, remember, former President Richard Nixon accepted a

pardon back in 1974, and that was considered to be an acceptance with some guilt involved. And so there is some precedent here for applying the law, the criminal law to a former president. I'm curious as we talk about arguments being different or similar to that previous hearing, that moment that we heard at the top of the podcast that got so much attention about SEAL Team Six, do you expect that to be revisited by a justice

or alluded to in either way, given that that seemed to dominate the conversation about the appeals court hearing? Boy, did it ever dominate. And Trump's lawyers have said in court papers that it was basically like off the wall hypothetical issues that were more heat than light and things like that. But I have to tell you, there were three friend of the court briefs filed with the Supreme Court on this issue of, of military service members and their obligations. And two of those briefs were largely in support of arguments the special counsel is making,

basically saying that if you give a former president immunity, then my goodness, service members are gonna be stuck between a rock and a hard place. Do they follow the commander in chief or do they obey the law? Kerry, do you get a sense, you know, a few weeks ago we talked to retired justice Breyer

on this podcast, and he wrote this book all about how the court needs to grapple with the practical outcomes of its rulings. But on this question, he kept not wanting to answer. Do you get the sense that justices are thinking about the real world implications that this ruling is going to directly affect a presidential election that is months away. On the timeline question, on the scope of this criminal case that Trump is facing, and all these other factors. You know, these people exist in the world, even though they're somewhat insulated from

the pressures of the world. They do read the newspapers. I think some of them do listen to NPR. And it's inescapable that this is now the third case dealing with former President Donald Trump. They've had this term. But the speed with which they've dispatched this case is notable, or rather the lack of speed. Remember the special counsel asked the Supreme Court to take this up back in December in a speedy way. They said no.

And then they scheduled argument when they finally did take the case for the last argument day of the term. And now it's not clear how long it will take them to issue a ruling. And every day counts when it comes to a possible DC trial happening, or at least starting before the November election. Has the legal world come up with like a clear reason why the court didn't just defer to this unanimous applauded on all sides, lower appeals court ruling on this. Like it seems like a pretty, like as decisive

as you can get in terms of the wording and the conclusion. And yet the court is now revisiting the question. Yeah, you know, the opinions vary about this among lawyers I've talked to. And one answer seems to be that scholars of presidential power say that the way one answers this question could affect future presidents. You know,

would a president be subject to certain kinds of criminal laws after he or she left office? And that may be what at least four of the justices wanted to debate tomorrow in taking this case. But the special counsel and most of the friend of the court briefs that line up alongside the special counsel say, this really is not a hard question. Look at the circumstances here. This is not some kind of use of American military power in the context of a war or foreign diplomacy. This is an effort by someone who has lost an election to cling to power and to engage in at least three alleged conspiracies to act as an office seeker, to act as somebody who wants to keep that office even after he likely knows that he lost.

And so in that context, it isn't a hard question. And in fact, it affects relatively narrow sliver of cases. And we've never had a case quite like this one before. I'm going to skip ahead to the main question we will all have tomorrow once the arguments are done. And that's timing. Do you have any sense? Is there anything we can listen for tomorrow to get a sense of timing? Is this, you know,

I feel like if it's this or any other Supreme Court case, I would go, okay, I assume we hear the decision in June because it's the time of year where all the big cases come at the end of the term. How should we think about timing here? Well, remember when it comes to the issue of whether Colorado could have disqualified former President Trump from its primary ballot, the justices issued that decision in favor of Donald Trump 25 days after argument. So if they followed that pattern with this immunity case, that would be May 20th. I think it's very unlikely they get a decision out to us by May 20th.

I would be surprised. And if it doesn't come before the end of June, remember, it's also possible that these justices could send the case back with some homework for the trial judge, Tanya Chetkin, basically asking her to figure out which of Donald Trump's acts in 2020 and 2021 were presidential, official acts, in which were not official acts of a president. And so it raises a whole bunch of homework for her to do. It's possible that this trial could not get even started before the election because Trump,

depending on what the high court does here, could have an appeal right even after the trial judge does some of that homework. I think the last time Trump was in front of the Supreme Court, there were some surprising moments and oral arguments, I think, especially people who aren't as living in the expert world as you are, we're surprised at how much the traditional liberal justices were asking similar questions as conservatives with skepticism about that Colorado case. What are you going to be listening

for during Thursday's arguments? I'm in particular going to be listening for what Amy Coney Barrett and Brett Kavanaugh do and say. These are two of the newer Trump appointees to the court, but Kavanaugh in particular has written a lot about executive power in his life. He earlier in his life worked for the independent counsel, Kenneth Starr, on the Whitewater investigation, and he also served as secretary to former President George W. Bush. So he knows how White Houses work, and he knows how White houses work and he knows how executive power works.

And the question in my mind is whether he's going to consider this question a relatively narrow one involving an attempted coup or whether he's going to view it more broadly as an attempt to constrain the power of the presidency. And the kinds of questions he and Barrett may ask could be really instructive along those lines. That's NPR Justice correspondent, Kari Johnson. Kari, thanks as always. My pleasure. NPR will again carry these oral arguments live. You can listen on your local public radio station. And then later in the day, the Trump's Trials podcast will have a full

recap of what happened, as well as any key developments you need to know from the criminal trial that is going on in New York. I'm Scott Detro. Thanks for listening. We will be back in your feeds soon. 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.

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