Episode Transcript
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(00:00):
Just as Soda my r lost theirminds over this decision. She wrote extensively
the dissenting view on the court,and I wanted to flesh this out a
little further and joining us for afew minutes, here is John Malcolm,
Heritage Foundation, Vice President of theInstitute for Constitutional Government and Heritage. John.
Good morning, Good morning, Goodto be with you. Good you,
(00:22):
Bet, I appreciate you coming on. Can you just kind of lay
out the genesis of this case tobegin with, how it came to be
and how this ruling differs from whatwe've always done in this country. Well,
this is an unprecedent. You've neverhad a former president who's been charged
with a crime. So Jack Smith, the Special counsel, has, as
(00:45):
I'm sure all your listeners know,indicted Donald Trump twice. He's indicted him
in Federal District Court in Washington,d c. For the events surrounding his
efforts to overturn the election results andalso the events of January. He's also
indicted him in Florida on the classifieddocuments case. The genesis of this one
was the DC case. The Presidentsaid, Look, I took all of
(01:08):
these actions when I was president ofthe United States. I am entitled to
absolute immunity for any of the actsthat I undertook. Of course, if
they were truly personal acts, Iwouldn't be immune from those. But pretty
much everything I did as president that'salleged to this indictment he claimed were official
acts. So the court was askedto take this up. Judge Kanya Tuckkan,
(01:30):
the trial judge, said no,there is no immunity from criminal prosecution
for any acts taken by president whilein office. DC Circuit affirmed that Supreme
Court decided to hear the case.Donald Trump had argued that the only way
he could be prosecuted is if hewas first impeached by the House of Representatives
(01:51):
and then convicted and removed from officeby the Senate. The Supreme Court rejected
that argument, but it gave himninety nine percent of what he wanted.
It said, Look, if thisis an if the Constitution gives the president
exclusive authority in an area, that'sit. He's absolutely immune from prostitution for
(02:13):
any official actions taken in the courseof exercising those authorities. If he has
sort of coresponsibility, he still getsvery broad community for his official acts.
If his official acts were within theouter perimeter of his authority. He is
immune from that. He's presumptively immune, and it is the burden is on
the prosecution to prove that this wasthat this was outside the perimeter of his
(02:38):
official acts, and he can beprosecuted for his unofficial acts. But even
with respect to those, the courtsaid, you know, you can't use
his official acts to prove criminality forhis unofficial acts. You know, you
don't even get to sort of piercebehind the veil to see, you know,
his motives for the various acts.She said. He took okay,
(03:00):
let me, let me play Devil'sadvocate from moment, and what I thought
was justice soda, my ors ridiculousdissent talking about the president ordering the Seal
Team Sex to assassinate a political rival, and she said, well, he'd
be immune from prosecution. Let's takethat extreme example, John, what would
(03:21):
happen in a case like that.Yeah, I don't think there's anything in
the constitution that gives the president theauthority to order Seal Team six or the
Army, you know, any branchof the services to do that. You
know, so I the only waythat would be an official act is if
you did it at the level ofgenerality of saying, well, he has
the right to speak to the commanderof Seal Team six. I don't think
(03:44):
that that is what the majority hadin mind. I think you were talking
about what he ordered Seal Team sixto do. You couldn't look at his
motives, that is true, butyou could, you know, look at
this action and say, is thereanything in the Constitution or in a statue
it remotely gives him this authority.I think the answer to that is clearly
no, and therefore would be consideredan unofficial act done purely for his personal
(04:09):
benefit, and he could be prosecutedfor that. What did you make of
the President's statement last night, whichI took as an unabashed attack on the
Supreme Court by the executive branch.Well, look, Democrats have been attacking
the Supreme Court now for quite sometime, particularly Justices Alito and Thomas,
because they don't like a lot ofthe issue, you know, a lot
of the decisions that the Court hasnow made, and they never fail to
(04:31):
immediately note that three of those justiceswere appointed by Donald Trump. There was
a lot behind that statement, Imean, in addition to the fact that
he was mad. He's obviously tryingto recover from a disastrous debate performance.
He wanted to get out in frontof the public as quickly as he could
to show that he can strink togethera sentence. He also wanted to say,
See, I was trying to tellyou the other day during the debate
(04:53):
what a bad guy Donald Trump is, and here I get another opportunity to
do so. But of course there teleprompkter and didn't take any question.
I guess the president is immune fromthe Hatch Act restriction on campaigning in office
right in the White House. Yeah, I had been a while since I've
looked at the Hatch Hack. ButI think that that is correct, because
it's just not feasible for president ofthe United States to leave the White House
(05:15):
and go to a private area likethe Democratic National Committee's headquarters to make telephone
calls. Yes, so the vicepresident president are immune from at least aspect
of the Hatch Act, and Ithink that's correct. Finally, John,
is there anything about this decision that'sconcerning to you? Well, Look,
anytime you give somebody broad immunity,there is the potential that they will abuse
(05:39):
the authorities they've been given in somein some way, presidents are not saints.
But you know, people know thecharacter of the current incumbent and the
former incumbent. They can cast theirvotes accordingly. And I think that some
of these more far fetched hypotheticals arejust that they are far fetched hypotheticals and
hyperbolic, and I don't think theSupreme Court or the general public should be
(05:59):
making decisions based on fear monitoring.Very good, appreciate your time this morning.
Thank you, good to be withyou. You met John Malcolm Heritage
Foundation here on kfab's Morning News
Just as Soda my r lost theirminds over this decision. She wrote extensively
the dissenting view on the court,and I wanted to flesh this out a
little further and joining us for afew minutes, here is John Malcolm,
Heritage Foundation, Vice President of theInstitute for Constitutional Government and Heritage. John.
Good morning, Good morning, Goodto be with you. Good you,
(00:22):
Bet, I appreciate you coming on. Can you just kind of lay
out the genesis of this case tobegin with, how it came to be
and how this ruling differs from whatwe've always done in this country. Well,
this is an unprecedent. You've neverhad a former president who's been charged
with a crime. So Jack Smith, the Special counsel, has, as
(00:45):
I'm sure all your listeners know,indicted Donald Trump twice. He's indicted him
in Federal District Court in Washington,d c. For the events surrounding his
efforts to overturn the election results andalso the events of January. He's also
indicted him in Florida on the classifieddocuments case. The genesis of this one
was the DC case. The Presidentsaid, Look, I took all of
(01:08):
these actions when I was president ofthe United States. I am entitled to
absolute immunity for any of the actsthat I undertook. Of course, if
they were truly personal acts, Iwouldn't be immune from those. But pretty
much everything I did as president that'salleged to this indictment he claimed were official
acts. So the court was askedto take this up. Judge Kanya Tuckkan,
(01:30):
the trial judge, said no,there is no immunity from criminal prosecution
for any acts taken by president whilein office. DC Circuit affirmed that Supreme
Court decided to hear the case.Donald Trump had argued that the only way
he could be prosecuted is if hewas first impeached by the House of Representatives
(01:51):
and then convicted and removed from officeby the Senate. The Supreme Court rejected
that argument, but it gave himninety nine percent of what he wanted.
It said, Look, if thisis an if the Constitution gives the president
exclusive authority in an area, that'sit. He's absolutely immune from prostitution for
(02:13):
any official actions taken in the courseof exercising those authorities. If he has
sort of coresponsibility, he still getsvery broad community for his official acts.
If his official acts were within theouter perimeter of his authority. He is
immune from that. He's presumptively immune, and it is the burden is on
the prosecution to prove that this wasthat this was outside the perimeter of his
(02:38):
official acts, and he can beprosecuted for his unofficial acts. But even
with respect to those, the courtsaid, you know, you can't use
his official acts to prove criminality forhis unofficial acts. You know, you
don't even get to sort of piercebehind the veil to see, you know,
his motives for the various acts.She said. He took okay,
(03:00):
let me, let me play Devil'sadvocate from moment, and what I thought
was justice soda, my ors ridiculousdissent talking about the president ordering the Seal
Team Sex to assassinate a political rival, and she said, well, he'd
be immune from prosecution. Let's takethat extreme example, John, what would
(03:21):
happen in a case like that.Yeah, I don't think there's anything in
the constitution that gives the president theauthority to order Seal Team six or the
Army, you know, any branchof the services to do that. You
know, so I the only waythat would be an official act is if
you did it at the level ofgenerality of saying, well, he has
the right to speak to the commanderof Seal Team six. I don't think
(03:44):
that that is what the majority hadin mind. I think you were talking
about what he ordered Seal Team sixto do. You couldn't look at his
motives, that is true, butyou could, you know, look at
this action and say, is thereanything in the Constitution or in a statue
it remotely gives him this authority.I think the answer to that is clearly
no, and therefore would be consideredan unofficial act done purely for his personal
(04:09):
benefit, and he could be prosecutedfor that. What did you make of
the President's statement last night, whichI took as an unabashed attack on the
Supreme Court by the executive branch.Well, look, Democrats have been attacking
the Supreme Court now for quite sometime, particularly Justices Alito and Thomas,
because they don't like a lot ofthe issue, you know, a lot
of the decisions that the Court hasnow made, and they never fail to
(04:31):
immediately note that three of those justiceswere appointed by Donald Trump. There was
a lot behind that statement, Imean, in addition to the fact that
he was mad. He's obviously tryingto recover from a disastrous debate performance.
He wanted to get out in frontof the public as quickly as he could
to show that he can strink togethera sentence. He also wanted to say,
See, I was trying to tellyou the other day during the debate
(04:53):
what a bad guy Donald Trump is, and here I get another opportunity to
do so. But of course there teleprompkter and didn't take any question.
I guess the president is immune fromthe Hatch Act restriction on campaigning in office
right in the White House. Yeah, I had been a while since I've
looked at the Hatch Hack. ButI think that that is correct, because
it's just not feasible for president ofthe United States to leave the White House
(05:15):
and go to a private area likethe Democratic National Committee's headquarters to make telephone
calls. Yes, so the vicepresident president are immune from at least aspect
of the Hatch Act, and Ithink that's correct. Finally, John,
is there anything about this decision that'sconcerning to you? Well, Look,
anytime you give somebody broad immunity,there is the potential that they will abuse
(05:39):
the authorities they've been given in somein some way, presidents are not saints.
But you know, people know thecharacter of the current incumbent and the
former incumbent. They can cast theirvotes accordingly. And I think that some
of these more far fetched hypotheticals arejust that they are far fetched hypotheticals and
hyperbolic, and I don't think theSupreme Court or the general public should be
(05:59):
making decisions based on fear monitoring.Very good, appreciate your time this morning.
Thank you, good to be withyou. You met John Malcolm Heritage
Foundation here on kfab's Morning News
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