Trump's Trials - Supreme Court: Trump immune from prosecution for 'core' acts as president

Episode Date: July 1, 2024

For this episode of Trump's Trials, All Things Considered host Ailsa Chang speaks with University of Baltimore law professor Kim Wahle and later, NPR senior editor and political correspondent Domenico Montanaro.In a 6-to-3 decision, along ideological lines, the Court ruled that presidents have absolute immunity for their core constitutional powers, and are entitled to a presumption of immunity for other official acts. But they also ruled that presidents do not have immunity for unofficial acts. The decision will affect the federal election interference case and the Georgia election interference case. Topics include:- Supreme Court immunity decision- Federal election interference case- Georgia 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

The Supreme Court rules that former President Donald Trump, as well as other presidents, have absolute immunity for certain official acts. From NPR, this is Trump's Trials, I'm Scott Detro. This is a persecution. He actually just stormed out of the courtroom. Innocent until proven guilty in a court of law. We have been waiting for the answer to this question for months. Is former President Trump immune from criminal prosecution?

And the court's answer is, sort of. In a six to three decision, which broke down along ideological lines, the court ruled that presidents do have absolute immunity for their core constitutional powers, that they're entitled to a presumption of immunity for other official acts. But the court ruled that presidents do not have immunity for unofficial acts. So what does this mean for the federal election interference case, which has been on hold for months as this question has worked its way through the federal courts? Well, it means more hearings to establish when Trump was acting in an official versus

unofficial capacity. We'll have to wait and see how this plays out, but the reaction from the liberal justices can be summed up in this line from Justice Sonia Sotomayor's scathing dissent. In every use of official power, the president is now a king above the law. A lot to get into, and when we come back, my colleague Elsa Chang will speak with constitutional law expert Kim Whaley. Later on, we will hear from senior political editor and correspondent, Domenico Montanaro. Support for this podcast and the following message come from WISE, the app that makes

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Listen to new episodes on your favorite podcast platform now. You're listening to Trump's Trials. I'm Scott Detrow and now here's Elsa Chang. Before we get into the guts of this ruling, just first give me your initial reaction to the court's decision here. Well I'm not surprised that the court ruled for immunity. They wouldn't have taken this case and they wouldn't have framed it so broadly if they weren't going to manufacture what, you know, a new part of the Constitution essentially. But I was surprised at how close to the line of absolute immunity. It's very hard to see what is still left of criminal liability in the rule of law for presidents

moving forward under the very loose test that the court established in its majority opinion today. Very interesting. Let's talk more about that because this case, I mean, the whole reason it ended up before the Supreme Court is because Trump had tried to get one of the indictments against him dismissed based on presidential immunity. We're talking about the four federal counts related to his alleged attempts to overturn the 2020 election.

So what does this ruling mean for the justice department's ability to even proceed with this case against Trump? Well, the court not only set out that test, but it had a few caveats. One is that the immunity doesn't just mean dismissal of the counts, the immunity goes to the actual evidence. That is that the immunity doesn't just mean dismissal of the counts. The immunity goes to the actual evidence. That is, the jury cannot hear evidence that falls within the scope of immunity. So, for example, the justice has said, for sure, communications

with the Department of Justice are absolutely immune. So I think Jack Smith's team have to now go back and look at all the evidence that it gathered to support the four counts and that it submitted to the grand jury and decide if you take the stuff off the table that the Supreme Court said is now immune, do we still have enough to go forward? If they decide they do, then it would go to Judge Chutkin, the district court judge, to decide

of that remaining evidence, what of it is actually also immune, with Donald Trump arguing that it's probably all immune because he was still president when he took these actions, and then that would be appealed. The other, I think, big wrinkle is the court said that motive is irrelevant. So the scope is very broad in that it's official if it's technically taken as president, rather than say, okay, I'm talking to my Justice Department to direct them to investigate a political rival, that would be a motive, versus I'm talking to my Justice Department to direct them to investigate a political rival. That would be a motive versus I'm talking to my Justice Department to have them investigate terrorism,

which would be within the scope I think regular people would think is legitimate. State of mind is not relevant. Okay, so what about the case against Trump brought my prosecutors in Fulton County, Georgia, because that case is also about election interference. How much is that case going to be impacted by this ruling? I think because he was still president, the evidence relating to Donald Trump's speeches about upending the election, his communications with state officials and others, the court said maybe communications with state officials could be unofficial.

But I think that is all going to be now parsed. It has to be parsed by the prosecutors and that would have to be parsed by the judges in Georgia. And I think ultimately, the Supreme Court has given itself the authority to decide on a later appeal what falls within and outside the scope of this new immunity doctrine that it just created for Article 2 of the Constitution. I mean, the larger question is, you know, whether a president even enjoys immunity is based on whether the actions of that president are considered official or unofficial, right? So how much did this court lay out?

Where is the line between official and unofficial acts exactly? Well, they said if it's specific in the Article 2 of the Constitution, then it would be core. So it talked about the pardon power, which is my next book that comes out in September. They said, okay, if you pardon in exchange for something that maybe even is illegal, the court suggests that would still be immune from any prosecution. It talks about, as I mentioned, communications with the Justice Department. Says pressuring Mike Pence to not certify an election that would be immune and official but to the extent to which what Mike Pence was doing was Senate oriented legislative maybe it's unofficial so

also this is a real quagmire the court you know opened up a big can of worms that these these trial judges are gonna have to resolve and I think what it creates down the line is a chilling effect it's such a complicated scenario scenario now that even if a president really does do something that shocks the conscience, prosecutors are going to have to say, hey, is this even worth bringing, even if we're absolutely sure this is the kind of thing that should be prosecuted because this immunity doctrine is so hard to overcome now. It's not even just the line between what is official and unofficial. There's also the question of what is, what does this presumption mean? This ruling says a president has presumptive immunity for official acts, including acts

within the outer perimeter of a president's official duties. How difficult do you think it will be for prosecutors to overcome a presumption of immunity? How do you overcome that presumption? That's not entirely clear. Sure, yeah, presumption means you get the benefit of the doubt. We're going to treat the president as acting in good faith. And the justification for doing that, the majority says, is we cannot assume prosecutors will act in good faith.

We need to give the president this benefit of the doubt because otherwise they'll have rogue prosecutors. But generally under the law, presumption means you have to have super duper evidence. You have to really show that this is not official conduct. And I think there's an argument that pretty much anything a president does, so long as they're still technically president and in the Oval Office and talking to other federal government officials, that is off limits for any kind of legal accountability. So Justice Sotomayor's dissent, sort of saying this creates a king

in the White House, I don't think is hyperbole. Let me talk about that dissent because Justice Sotomayor imagines scenarios like future presidents ordering assassinations of political rivals, organizing military coups, taking bribes in exchange for presidential pardons. What do you make of those hypotheticals? Are they far-fetched or there's a glimmer of possibility there? Yeah, I do think there is a glimmer of possibility. I don't think they're far-fetched. The majority sort of says they're far-fetched. But remember, you know, we've gone this far in our constitutional history without immunity for presidents. It hasn't had a chilling effect. Presidents

know there are boundaries, there are lines. The court created it in response to January 6. Essentially gave a you know a reward for January 6 for that kind of activity. So I think what we can see logically is something more egregious down the line. It's now green lighting presidents to cross boundaries and so long again, so long as you're doing it officially, which is a lot of power, as long as you're doing it officially, which is a lot of power, as long as you're using the massive powers of the office, it's going to be very hard to challenge that or even as I said, to use that evidence to create a case. It's a very, very pro presidential power ruling and ultimately pro Donald Trump ruling.

That is Kim Whaley. She's a law professor at the University of Baltimore. Thank you so much. Thanks for having me. The court's decision could have major consequences for the 2024 presidential campaign. And to talk about those, we're going to bring in now NPR senior political editor and correspondent, Domenico Montanaro. Hey, Domenico. Hello, Elsa. Okay, so what do you think this ruling will mean for the federal election interference case

against former President Trump and also for the election ultimately? Well, first of all, it's a huge win for Trump, but just by the fact of the timeline, because it now means there's no chance of a verdict in this case before the election. And this was seen as a case at the heart of the criticism against Trump with what happened on January 6th. It's consequential politically because voters have been saying in polling that they could move at the margins perhaps away from Trump if he was convicted of these crimes that have been investigated against him.

There were four criminal investigations into his conduct. Trump was convicted in one of those cases, the New York State fraudulent business practices case related to the 2016 election. And we saw the polls move a bit in Biden's favor after that felony conviction. And that was seen as the least potentially consequential of the cases. But now voters won't have the context of whether Trump is guilty in this January 6th case before they vote in the fall. Well, I imagine the Trump campaign must be pretty happy about this outcome at the Supreme Court. How are they reacting specifically?

Yeah, definitely. I mean, the Trump team is, you know, sent out a victory lap fundraising email minutes after the decision. And we know these cases have been a fundraising boon for Trump. Trump called the decision a quote, big win. And all of how he's reacting really kind of pulls from the Trump playbook from past years declaring victory, even when the truth isbook from past years, declaring victory, even when the truth is a bit more nuanced, you know, like the Russia interference Mueller

investigation when he said he was exonerated, when Mueller explicitly said he was not. It's how he reacted after he was impeached twice and a majority of senators voted to convict him, but not the two thirds that's required for removal from office. And Trump declared exoneration then too. Trump has been able to insulate himself really with those tactics with his voters, suffered little consequences politically because of it, and his legal team has largely succeeded, except for that New York case, as I said before, in trying to dismiss, delay, and distract.

Okay. Well, meanwhile, how is the Biden campaign reacting to all of this? Well, they're ripping from its own playbook too, and dismissing the significance of what a court says. Like after Trump's New York conviction, the Biden campaign released a statement saying in part, quote, Trump's ruling doesn't change the facts of what happened on January 6th. They also said that Donald Trump, quote, snapped after he lost the 2020 election and encouraged a mob to overthrow the results of a free and fair election. And they noted that voters rejected Trump once and that, quote, Joe Biden will make

sure they reject it for good in November. Of course, the president has his own problems in trying to recover from his shaky debate performance last week, which Democrats fear is really hampering his ability to strongly make the case against Trump. But these legal issues are core to why Biden says people should vote for him despite concerns about his age because of the two very different kinds of things that these men want to do for the country. Sure. But I mean, regardless of what people think about this particular Supreme Court decision,

you have people in both parties right now who do not trust this particular Supreme Court, particularly among Democrats in recent years. Can you just talk about how the court factors into this election more broadly? Well, the Supreme Court, no doubt, is going to be a central part, is a central part of the campaign already, not just because of decisions like this one, but also principally because of abortion rights. They also happen to be the two things that the Biden campaign is running most strongly on. Dobbs, the Dobbs decision overturned Roe v. Wade,

wouldn't have happened if not for the justices Trump appointed. It's likely this decision and what it could mean for the presidency likely wouldn't have either. You had all three liberal justices dissenting in this case, most strongly by Justice Sonia Sotomayor, who said this decision makes a president, quote, a king above the law. Foreign policy and judges are really things that presidents, you know, can control more than a lot of other things, but people don't seem to vote on them. You know, and as we're seeing though, the Supreme Court can really affect generations

of American social policy in this current court's case in a way conservatives love and in ways that people on the left loathe. That is NPR's Domenico Montanaro. Thank you, Domenico. You're welcome. 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

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