The BIGGEST Issue With Trump’s SCOTUS Immunity Case

Former president Donald Trump is battling multiple legal challenges. But everything could change if the Supreme Court rules that he has full presidential immunity. However, there’s a big issue. Former Assistant U.S. Attorney for the Southern District of New York Andrew McCarthy joins Glenn to explain why he believes the Court may NOT grant Trump full immunity. Plus, Andrew weighs in on whether Trump has a chance of moving his trials away from New York and Washington, D.C. and why former presidents haven’t been taken to court before.

TranscriptBelow is a rush transcript that may contain errors

GLENN: Andy McCarthy, a National Review contributing editor, the Institute's Senior fellow, and a former chief assistant US attorney general. We won't hold this against him.

He was a former US attorney in the -- in the district of Manhattan.

So we'll just leave that alone.

Andy, how are you?

ANDY: Glenn, I'm doing great. How are you?

GLENN: Very, very good.

So let's start with the big story. I think, and that is the Supreme Court.

And what they were arguing last week, can you give me your honest take on what -- what this is really about for the future. Beyond Donald Trump. And how you think this will affect what is happening with Donald Trump.

ANDY: Glenn, I think it's important that you frame a question that way. Because it seemed to me.

And I reread the transcript over the weekend.

After listening to the oral argument.

The court is a lot more concerned, about the presidency, than about Trump.

GLENN: Sure. Should be.

ANDY: Yeah.

And it's -- it's an important point make. Because a lot of the coverage, has been this hysteria over whether, you know, the Trump packed Supreme Court is in the tank for him.

And they're going to get rid of Jack Smith's prosecution.

I don't think that will happen at all.

It's possible that Smith won't get his case to trial.

Depending on what the court does.

What I think the court is going to do, is send the case back to judge chuck in. Who was the trial judge in Washington. With instructions to sort out what things in the indictment against Trump are what you would call official acts, that might arguably be immune from prosecution, because they go to the core responsibility of the presidency.

And what are private acts or private wrongs. That he would not have immunity for, even though they have been enduring his presidency.

But the -- the upshot of the questioning, of the lawyers. Including Trump's lawyer, and this is particularly by Justice Barron. Justice Kagan. Trump's lawyer admitted that there's a lot of conduct charged in the indictment, that is private conduct, that really wouldn't be covered by an immunity claim.

Even though Trump has been saying a lot of stuff about absolute, complete immunity. And I think the concessions he made in the argument, that is John Sauer. Trump's lawyer, would be enough. If Smith was willing to tailor his indictment, down to the things that Sauer conceded, they could go ahead with the trial on just those acts.

He would lose a lot of evidence, but he probably should.

GLENN: So what are some of the acts that could fall under -- you know, private, and so you could prosecute. And what are the acts that are the president, and you don't prosecute?

ANDY: Yeah. So the one bright line that we can take away from this. Is that there seems to be consensus, that there is a -- a divide between office seeking, and the carrying out of the duties of an office.

So if something is purely in the nature of trying to get reelected. That's deemed to be private. Because it's not part of the duty, of the presidency.

It would be the same for anyone who was seeking office. Whether that person was an incumbent or not.

And then there were other things, that are clearly presidential.

So just to give some solid examples. That came out of the argument. Trump's lawyer conceded, that if Trump made a private scheme with private lawyers to get electors, designated for him and to supply documents to the Congress. Suggesting that they were the authentic, actually slate of electors, designated by the state.

That would be private conduct.

Because it's -- it's purely office seeking. And he carried it out, only with private lawyers.

On the other hand, there's an allegation in the indictment, that Trump tried to use the justice department. To signal to states, that there were serious concerns about fraud. And consider both removing the attorney general, when he got pushback. And considered sending a letter, that they never sent from the Justice Department to the state of Georgia, to tell them, you know, that they needed to do more scrutiny over what happened in the popular election. Trump argued very strongly. And I think the court will probably go along with this. That that is the president's control over the Justice Department, is -- is purely a presidential act, that has no part in a criminal prosecution.

GLENN: Correct.

ANDY: On those are the kinds of things that they are talking about sorting out.

GLENN: When Trump sat another group of electors, or tried to. That's what -- that's what the friends of Dershowitz did. I don't remember all of the attorneys. In the 2000 election.

That's what they were recommending, to be done. You have to do that. Or you have no case.

ANDY: Yeah. Well, let me just be clear, Glenn. They're not saying that Trump wouldn't have a defense at trial.

What we're talking about now is purely immunity. That is who he got the trial from happening in the first place. I think there's significant defenses to the fraudulent electors playing. Beginning with the fact that the electors themselves, didn't think they were fraudulent. They thought they were contingent.

They thought they were basically sitting in as a slate of electors, in the event that Trump prevailed either in the state courts or in the state legislature, to throw out the popular election. Then that would activate.

But they weren't trying to fool anyone into saying, that they were the actual electors that had been certified by the state.

GLENN: Can you get a fair trial on that? If indeed he has to go to court?

ANDY: Well, I think it's tough for him to get a fair trial, in Washington.

GLENN: Why isn't -- why can't someone make the case here?

Why can't his people make the case? That you can't get a fair trial, with the jury pool in New York, or in Washington, DC.

ANDY: I think Trump's problem is he's too famous in some ways.

The problem is that unlike almost any other defendant, he goes and says, one of the things that they can always says about him. He's the most famous guy in the world. And no matter where you have the case, you have the same pretrial publicity problems. And they kind of reject out of hand, the thought that because a jurisdiction votes substantially against Trump as a political matter.

That means they can't be fair to him as a legal matter.

You know, you can -- you can debate that all you want. About whether that's a sensible distinction to draw or not.

But it's a distinction the courts draw.

GLENN: Okay. What do you think is come downtown pike on this?

Based on -- go ahead.

ANDY: Yeah. I think they will send the case back to Judge Chutkan with instructions to go through the indictment and figure out, what's a public act and what's a private act.

If Smith wants to fight on that, then he's never going to get to trial, prior to Election Day. Which, of course, is his aim.

Because this would still be a live immunity claim, and immunity is one of the few things that you can actually appeal pre-trial. So I don't see how he would get to trial. But I do think Smith, if he wants to. And if it's that important to him to get to trial, quickly. He could say, you know what, I will dispense with all of the acts that you say are immunized, official, presidential acts. And we will just go to the trial on the private stuff.

It would be a weaker case for him.

But it wouldn't be an unwinnable case.

GLENN: And what is the punishment?

ANDY: Well, that's an interesting question. Because that may depend on another Supreme Course case this term. The one they argued, a week before on the obstruction statute, that is key to Trump's case.

That obstruction statute has a 20-year penalty. And it's the two main counts in the indictment against Trump.

The other two counts only have five-year penalties. So if the Supreme Court says that it rejects the way the Justice Department has been using the obstruction statute. Which it might. Then that would require probably a big overhaul of Smith's case. Because those charges are very important to him.

But if the court upholds that statute. Which it also might. Then you are looking at a potential of, you know, 40 years imprisonment.

Now, he won't get 40 years. But statutorily, there would be 40 years imprisonment.

On those charges. And I think ten on the other two. The other two are fraud on the United States. And the civil rights charge.

So he would be looking at, you know, statutorily 50 years imprisonment. Which would indicate, under the sentencing guidelines, that he would get, I would think. You know, four or five, six years.

Of a sentence. If he gets convicted on those charges.

GLENN: Unbelievable. You know, last week, the Biden administration was making the case, well, Donald Trump is the on me one that has ever broken the law. That's why we've never had this before. That's such crap, and we all know it.

Why haven't we had this problem before?

ANDY: I think a lot of the criminal -- the potential prosecutable criminal conduct has come up, late in presidential terms. Like, for example, with Clinton.

The pardon scandal happened as he was going out the door. And I was in the Justice Department, at the time.

There was -- there was over a year of pretty intense debate within the Justice Department, about whether he ought to be charged with bribery or not. In connection with those pardons.

But I think there's -- maybe this has changed now.

But there's always been a current of like, when a new administration comes in. Particularly if it's a new administration of a different party. They don't want to revisit what happened, with the last guy.

They want to just go ahead, on their own stuff.

This whole idea, we're looking forward. We're not looking back. That certainly had a lot to do with why the Bush Justice Department didn't prosecute Clinton.

And I think with Obama, there was a lot of rhetoric, during the 2008 campaign, about war crimes against Bush and all that stuff.

But when they got into power. They not only weren't interested in prosecuting anyone on war crimes. They reopened the CIA investigation. But then they closed it.

But they actually ended up adopting a lot of Bush/Cheney counterterrorism.

You know, I think, there's a lot of rhetorical campaign stuff about how, you know, lock her up.

And we will put these guys in jail.

But it doesn't come to pass. I actually think Trump is serious about it, this time. Because they've seen what they've done to have.

That's why I thought it was amusing in the Supreme Court argument. For the government lawyers to get up and say, you know, you don't have to worry about this.

This is just generous with Trump, it will never happen again.

And in the meantime, Trump is ahead in the polls. And he's running as the retribution candidate. He's promised he's going to do this stuff, right?

So -- so it's an amazing time to be alive, right?

Andy, tell me about how Alvin Brag's doing, so far.

ANDY: It's a terrible case. I think -- I wrote a column about this today, called How Judge Merchan is Orchestrating Trump's Conviction.

And I was reminded of, you know, the fact that Trump when he was a young guy, learned a lot about litigation from Roy Cohen.

And, you know, what Cohen used to say, his first principle of hardball litigation was, don't tell me what the law is, tell me who the judge is.

And I think Trump knows that. He knows it very well.

And as I'm closely watching the rulings. That are being made. And the arguments that the judge is allowing to be made. It's clear, that he has allowed Bragg. And just, so the people understand, this case is indicted as a falsification of business records, that occurred in the months of February through December of 2017.

Those are the only charges in the indictment. The case is being presented to the jury, as a conspiracy from 2015 through 2017, to steal the 2016 election by violations of federal campaign finance law, which Alvin Bragg, as a state prosecutor, has no authority to enforce. And that's the way the case has been framed by the prosecutor.

Based on orders from the judge. And that is the way that they are proceeding, and judge -- and Judge Merchan is allowing the state to prove, that Michael Cohen, pled guilty to two campaign finance offenses. And that David Pecker, the AMI guy, who ran the National Enquirer. That they had a non-prosecution agreement from the Justice Department.

And then paid a fine of $180 of the Federal Election Commission.

For violating federal election law. Now, those -- it's a black letter principle of law. That one person -- let's say person A. His guilty plea is not admissible evidence against person B. Even if A says, A and B acted together.

It's absolutely improper for these -- for this evidence of what Michael Cohen and David Pecker was thinking about the federal election laws. The fact that they made deals with the government. None of that stuff should come in. The judge is letting it in.

And he's not letting Trump explain to the jury, that he, Trump, was not charged by the justice department or the FEC. And the reason is obvious.

Actually expenditures that were cognizable under the federal law.

And he's also not letting Trump call an expert witness to explain campaign lay to the jury.

So what the jury is going to hear about campaign law is going to come from Michael Cohen and David Pecker.

So it's a farce.

GLENN: How is this a fair trial?

If you can't call people -- and you can't let the -- the jury know. Truly, the other side of it?

TRENT: Yeah. Look, it's even more fundamentally unfair than that.

In the United States, under the fifth amendments of the Constitution.

You are entitled, that you will be charged with a felony.

It has to be on the basis of an indictment returned by a grand jury, that explicitly says what the charge is.

The indictment in this case, talks about false bookkeeping in 2017. A case that has been presented to the jury, is a conspiracy to violate the he federal election laws.

It's mind-boggling, that it's being permitted.

GLENN: Wow.

Andy, thank you so much.

I appreciate it.

This would definitely lose in a higher court, don't you think?

ANDY: I do. But I think it will be -- I mean, Harvey Weinstein's conviction just got reversed last week. That was three years.