Randy Zelin: Cornell University law professor on the Supreme Court ruling former presidents have some immunity from prosecution

A historic Supreme Court ruling has expanded the scope of US presidential power.

The United States' top court has ruled six to three that former presidents can be granted immunity from prosecution over acts done in office.

This means Donald Trump's alleged role in the Capitol riots in January 2021 likely won't make it to trial before the election.

But Cornell University law professor Randy Zelin says the decision isn't as earth-shattering as it's being made out to be.

"The Supreme Court is saying - we're going to take it case by case, there may be a presumption that the President was acting in an official capacity, but that presumption can be overcome." 

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Episode Transcript

Speaker 1 (00:00):
Hither duplicy el.

Speaker 2 (00:02):
President Joe Biden has condemned the Supreme Court's decision on
immunity this morning.

Speaker 3 (00:07):
Today's decision almost certainly means that there are virtually no
limits or the president can do. This is a fundamentally
new principle, and it's a dangerous president because the power
of the office will no longer be constrained by the law,
even including the Supreme Court of the United States. The
only limits will be self imposed by the president of law.

Speaker 2 (00:29):
The U s. Supreme Court is ruled that presidents have
absolute immunity from prosecution for their official acts, no immunity
for their unofficial acts their non official acts. This means
Donald Trump will have significant immunity on charges of trying
to overturn the last election. Now Randy Zellen is a
Cornell University Cornell University law professor and with us now, hey, Randy, Hey,
is this as wild as it looks?

Speaker 1 (00:51):
No, it is not as wild as it looks. First
of all, President Biden himself should be thankful for the
Supreme Court or its decision today, because Donald Trump has
all but shouted from Mountain high that if he is
re elected as president, there's going to be retribution, and

(01:13):
certainly one of the prime targets of mister Trump's retribution
is sure to be Joe Biden, who he has consistently
claimed is responsible for all of these criminal prosecutions. So
if former President Trump cannot be prosecuted for official acts
while he was president, then right now President Biden wants

(01:34):
he's out of office, will not be able to be
prosecuted for official acts while he was in office. So
this sound by it sounds good now, but once President
Biden is out of office, I wonder if he'll be
singing the same to it.

Speaker 2 (01:50):
So, in a dissenting opinion, Justice Soto Mayo said that
this will basically make it possible for future presidents to
be able to order the Navy Seal Team six to
assassinate a political rival. Is that true?

Speaker 1 (02:02):
No, I think that's a bit dramatic the reality. From
my perspective, I think the Supreme Court looked down at
all of US citizens and said, you know what, guys,
we are not going to be your babysitters. You want
to elect people in office who haveous, dubious character and

(02:28):
do questionable things, well, don't come to us expecting us
to clean up your mess. So what we're going to
do is, like parents, we're going to set guidelines. We're
going to set rules. We can't cover every single eventuality,
we can't cover every single possibility everything you could do wrong.

(02:48):
We'll take it one step at a time, but we're
going to leave it to people below us to figure
out when you do something right and when you screw up.
So good luck, Randy.

Speaker 2 (03:00):
Is what is stopping the president if he was to say,
if it was Trump and he had I'm just saying,
you know, hypothetically, he had a potential rival he wanted
to take out, and he got the guy assassinated and
then said that was part of my official duties. The
guy was a three. What's stopping him from doing that
and escaping?

Speaker 1 (03:16):
Well, Well, what would happen is, according to the Supreme Court,
the president could be charged criminally. He would then raise immunity,
and it would be up to a court to determine
on a case by case basis whether or not what

(03:36):
the president did was within his official act as president
of the United States. Now, you have to keep in
mind that the Supreme Court in the United States said, basically,
there were three possibilities. There are those acts of the
president that are conclusive that we don't need to look
at it, and it's clear that that was an official

(04:00):
and therefore the president has absolute immunity. Then you have
those instances the polar opposite, which is, sorry, the president
was not acting in his official capacity. If the president
went in shoplifted at a seven to eleven, that's certainly
not acting in an official capacity. So it's the in

(04:24):
between that the Supreme Court is saying, we're going to
take it case by case. There may be a presumption
that the president was acting in an official capacity, but
that presumption can be overcome. So this decision I don't
think is as earth shattering and traumatic as it seems
to be. It's simply a matter of we never had

(04:44):
to be concerned about this because in our history one
other time maybe if you want to look at President Nixon,
and he was smart enough to resign before things got
too hot, and then President Ford pardoned him. So this
is the first time in our history that we're being
tested to this level. So it's uncharted territory, and I

(05:05):
think the Supreme Court did the best that it could
not to go too far one way or the other
and leave it to the trial courts on a case
by case basis to determine whether or not there's immunity.

Speaker 2 (05:16):
Randy, it's always good to talk to you. Thank you
so much for giving us some perspective. That's Randy Zellen,
Cornell University law professor.

Speaker 1 (05:22):
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