Inside Scoop with Breitbart News - Ken Klukowski

Episode Transcript

(00:01):
A six on a Tuesday, It'stime to get the Bright barg Insides Goop
book market, d R E It v A, RT dot com.
You're glad you did reporting on thingsand great reporting. It is things you
will not find in the mainstream mediain very very important subject matters, including
legal opinions and analysis. And todayreturning the fifty five Kerssey Morning Show,

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Bright Bart News legal expert Ken Kolkowski. Ken, good, you have you
back on the program, and ahappy Tuesday to you, sir. Hey,
thanks so much, Brian, it'sgreat to be with you. Well,
you'd think after the Supreme Court immunitydecision presumptive immunity under the sixty to
three decision, that the president ofthe United States of America could go ground
murdering people, which is literally whatsome of the elected officials are saying in

(00:41):
the aftermath of that uh and eventhree of the Supreme Court justices seem to
be of that mindset that is inno way shape or didn't they read the
opinion? Ken? I mean well, not only did they not read the
opinion, there was actually in theMake us Break file by former combat Generals
by America First Policy Institute AFPI thatactually was solely dedicated to explaining how that

(01:08):
cannot happen under military law and underfederal civilian la. They just went like,
step by step through Now, bythe way, you don't need to
worry about like a president murdering peoplebecause and they walked through it step by
step, and none of that showsup in this dissenting opinion. They don't
cite to the brief, they don'tdiscuss it. I mean, it's so

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what they said was just like,and I say this with all due respect,
it was an uninformed, counterfactual commentary. They were describing a fantasy world.
They were describing an alternate reality,one that does not exist in this
universe. And so it was justthe bizarrest thing. It was like something
from a movie. And again,if it was something that wasn't even presented

(01:53):
to the justices, then you wouldsay, well, it'd be nice if
they would actually do their own researchon this, because this is a big
deal. But to have a briefdirectly on point that actually walks you through
every aspect of this to show whyit's not the case, and then just
to put in the dissenting opinion,Hey, this is a problem not just
ciding to that brief, not doinganything to like rebut the points in that

(02:15):
brief. I'm honestly wondering whether thejustices clerks like never even read the brief.
It's just bizarre to me, absolutelybizarre, or ken read the majority
opinion. Roberts had a copy ofthe Descent and he even went back to
dissent and Roberts wrote in the majorityas to the descents, they strike a
tone of chilling doom that is whollydisproportionate to what the Court actually does today,

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coming up short on reasoning, theDescent repeatedly leveled variations of the accusation
that the Court has rendered the presidentabove the law. That is not what
the Court did. And they evenpointed out it's you know, this just
illustrates without any question how who Imean, who the politicized folks on the
Supreme Court are. I mean,they put that in there to give talking

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points to the left, and Ithink, obviously which has served the left
well because it took away everybody's focuson Joe Biden's cognitive inabilities on full display
last Thursday. Here's a distraction theevil Supreme Court and the end of democracy
and now presidents can go murdering people. I guess this is what they're saying.
Yeah, I have I'm an officerof the court, and I have

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an active practice in front of theUS Supreme Court. I won't so I
won't question the thinking or motives behindany of that. I certainly, certainly
people who do not have practices beforethe Supreme Court, can, you know,
can first whatever opinions they like theso I'm not sure how they got

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there, it is. I mean, you know, I read as I
read dissenting opinions almost daily, andsometimes I agree with you know, there
are many descents that I agree with. You know, there are many of
them. I'm like, well,this dessent should be the majority opinion.
But so of course, so oftenyou're reading the dissentient opinion and you're like,
well, I mean, it's areasonable position, but it's just wrong.

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It's not even closed. It's deadwrong. But at least it's reasonable.
This one isn't even reasonable. Andthat, for the life of me
and I hear what you're saying,I do not know what drove such a
dystopian you know, they're describing somemad mac scenario or some hunger games type.
You know, it's like, allright, this is not you know,

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the United States of America in theYear of Our Lord twenty twenty four,
like on planet Earth in reality.You know, it's none of that
stuff is happening, nor is iteven on the table, but it is
set aside the Supreme Court. Itis certainly, you know, you get
a block of the party that's currentlythe ruling party, the party in power,

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where they are saying these utterly insanethings and it's whipping people up.
I mean, this really shows thestakes of the election in November, because
it seems like our very form ofgovernment is being put at risk when you
get political leaders who are denouncing thelegitimacy of a coequal branch of government,

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the branch whose role is to protectus against a majority or those in power
who actually cross the line of ourconstitutional rights. I mean, it's like
the courts are the final recourse ofpeople who do not currently hold office.
It's it's it is the safeguard ofour freedoms against government overreach. And you

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know, but that only works sofar as the consensus of society is that
this third branch of government, youknow, has a role under the supreme
law of the land that must berespected and adhered to. Well, let
us talk about brtit Bart News legalexpert Ken Kolkowski the impacts for Donald Trump.
Specifically, this opinion transcended Donald Trump. It was the presidency as an

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office and what needs to be deemedwithin the core plenary powers and therefore immune
from anybody's sort of hindsight going afterhim and those that are outside of the
core powers of the executive. So, looking at the underlying charges against Trump,
it looks like the Supreme Court isalready whittled away a couple of them,
but has remanded the case back downto the trial court level to see

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if these official of these were officialacts outside of or within the core acts
of the presidency. So where arewe on that component? Yeah, that's
right. The Supreme Court pretty muchsays that every act that a president takes
while in office falls in one ofthree buckets. One is his core constitutional
official duties and that's a short list, and that things within that are just

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totally off the table. They cannever be used as part of a prosecution
against them, they cannot be introducedas evidence against them, And they specify
a couple of things. They're likewhen the president decides to recognize a foreign
nation. So for example, thatwould been President Trump moving the US embassy
from Tel Aviv to Jerusalem in twentyeighteen. That would be an example of

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that power. One that they giverelevant to the facts of these prosecutions is
they say, when a president speaksto his attorney general, that is exercising
a core constitutional prerogative that is totallyoff the table. Then they say,
then you have the second bucket,which are official acts, and anything that

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is within the outermost perimeter of hisofficial acts a president enjoys is presumed.
You start with the presumption that heis absolutely immune, and that presumption can
only be overcome by a prosecutor.So the burden is on the prosecutor for
a prosecutor to show it's not anofficial act. You can criminalize this without

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impairing the authority of the executive branchor the function of the executive branch.
And then you have the third bucket, which are non official acts, like
private acts. Like if a president, any president is walking down the street
at an event and just punches someguy in the mouth, well, he's
not immune from that. After heleaves office, because that was not any
part of his being president. Youknow, any any grown man could could

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have thrown a punch. So itwas a purely private act and there'll be
no immunity that attaches to it whatsoever. So the Supreme Court said, you
have those three buckets specified several thingsin that first category that are totally off
there. They are totally off thegrid. Can't touch those. Then for
the rest, the majority took seriousfault with how the lower courts have done

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this, that they've not developed therecord, that they were in a sprint
to take this to trial. Andthe Court really took him to task both
both the d C. District Court, which is, you know, the
trial judged there, and the DCCircuit Appeals Court in terms of how they
reviewed it. So they said,we're vacating everything, meaning for the non
lawyers listening to us, that they'restriking from the books everything that's been done

(09:09):
in this regard. They are remandingit back down to the trial court for
evidentiary hearings that will go fact byfact through all the facts in the indictment
again aside from the ones that theSupreme Courts say are in that first category,
like anything about Trump talking to hisag. You don't even bring that
up. That is just off limitsfor all of these others to go fact

(09:31):
by fact through it. Because theysaid whether it's an official act or not
official. They say whether it's aspeech, something he says in a speech,
or a tweet that he sends out. Some of them can be official,
some of them aren't. It willdepend both internally on their content and
externally of their context with surrounding facts. And it's going to take a lot

(09:56):
of work by the trial judge.And then this is key that all of
this must be done before trial.And then whatever those rulings are as a
package, the president has the rightto interlocutory appeal to an immediate appeal before
trial, even all the way backup to the US Supreme Court a second
time to have all of that reviewed. And all that would have to happen

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before Donald Trump ever has to sitfor another trial. And that is a
long time. I mean someone whohad a long time as a litigation for
sixteen years when I was actively practicing, and it's a long time. What
you just said that right, You'relooking at that and you're like, okay,
not only is that not November oftwenty twenty four. I'm not sure
how you're going to get there byNovember of twenty twenty five, I know.

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Okay, So all that being said, Ken, I've been remissing my
obligations here to not give you anopportunity to talk about what would have happened
had the Minority Provision or Minority Justicesposition prevailed. What would this have opened
any future president up to or evenmaybe the blind administration? Oh sure,
and we can give a couple reallife examples of how this would totally blow

(11:05):
up the institution of the presidency.It's where Harry Truman dropped two nuclear bombs,
two atomic bombs on Japan, killedhundreds of thousands of noncombatants, including
women and children. If Harry Trumanwould have been subject to like two hundred

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thousand charges of murder for that,I mean, it's not an issue of
what would you have been convicted?Is it military necessity? Can you be
charged with it? Can you spendthe rest of your life going trial after
trial at risk of life, imprisonmentor the death penalty for it to come?
Much more recently, just a coupleof presidents back Barack Obama ordered the

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airstrike against anwar al Alaki, anda sixteen year old boy was killed as
part of that, who was aUS citizen, who was a non combatant,
who had no ties to terror,just happened to be in close proximity
to someone who was a sixteen yearold American citizen was killed by order of

(12:11):
the President of the United States withno due process, no court proceedings,
etc. Now, stuff like that, Terrible things happen during military operations.
That's part of what a president ascommander in chief has to order when they
are making proper military decisions, notthis crazy stuff about assassinating your rivals.

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That's a whole separate conversation as tohow bizarre that was and how you know,
unrealistic. But I mean a presidentmaking actual military decisions, you know,
an innocent person could be killed likethat, including even American citizens.
No president would be able to performthe duties of their office if they knew
that for the rest of their life. Once they leave office. On any

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given day in a county with closeto three thousand county secutors and the whole
federal government that may be controlled bythe other political party, that's every day
for the rest of your life.You may be brought up on selling new
charges for countless things bring the Officeof the Presidency to a screeching halt,
and that's exactly what the court wasaddressing. Ken Kolkowski. It's always a

(13:15):
pleasure to talk with you. Iappreciate your legal analysis and I recommend my
listeners read what you have to writeat brightbart dot com. Definitely bookmarket and
Ken, I look forward to havingyou back on the program real soon.
I wouldn't help you have a wonderfulIndependence Day. Thank you, sir,
you as well, God Bless appreciateit. Take care. It's eight nineteen,
coming up at eight twenty if youhave cares to detalk station coming up with the