4-26-24 - 7am - SCOTUS Presidential Immunity

Episode Transcript

(00:01):
Well, good morning, sunshine.Glad to see you could make it to
work today. What do you havea little hair of the dog that way
you could get going this morning?Or what's going on. I guess it's
true what they say. The hangovershurt more than they used to. You

(00:22):
know, when I was downstairs inmy office, the combination like a little
home office studio and everything, sowhere the liquor cabinet is, and you
wouldn't believe how many times I wasI kept looking up at those tequila bottles
and kept getting and not the notthe Scots, not the Bourbon, not
the Vodkin, none of that,not the gem but the tequila. I

(00:46):
kept looking at tequila. You keptlooking at the tequila. You can't even
talk. I kept looking at thetequila, thinking that would taste so good,
it would be so smooth on thethroat. You know, tequila has
just got this really kind of almostcreamy, like just oh soothing, better

(01:06):
than I mean, screwed, screwwell of this crappy I've got prescription cough
medicine here, Doc said, Iforget what the name of the I don't
have it with me, and soI think it's out in the car,
I got some sort of prescription,a little cough medicine. It's a pill
dragon, It's like a little capsuleof some sort, like a little bead.

(01:27):
I don't know. You and youswallow it and it wards. You
do not do not chew this,do not break it open, swallow it.
So unlike Kelly's purse medicine. SinceKelly's not here yet, confession time,
right, she likes to listen,be careful. Well, you know
what, I just don't care.I picked up Kelly's purse medicine and I

(01:49):
tossed it in the trash, andactually I crary. Frankly, I'm glad
that I did. She was sonice to you to get her. She
was very very nice to me,and I appreciate shape the gesture. But
I'm you know, even though thismay look like Colfax Avenue or Federal Boulevard

(02:10):
in here, we're not going towe're not going to engage in activities as
if it is. I'm not goingto take any first meds. So anyway,
I've got two of these cough medicinesand in this anti viral I'm taking
and I feel fine. I feelfine, just a little tired, but

(02:30):
who cares. Nobody cares. Nobodycares, just nobody cares. Uh.
The Supreme Court heard oral argument yesterdayand I was fascinated by it. It
was so good. Skills accept this. The Supreme Court accepted the case for

(02:51):
review. And the question that theywere hearing that the two parties were arguing,
is this whether, and if so, to what extent does a former
president enjoy presidential immunity from criminal prosecutionfor conduct alleged to involve official acts during

(03:15):
his tenure in office. The argument. Most oral arguments go on for about
an hour our max. Sometimes evenless than that. These oral arguments went
on for two and a half hours. Now I listen to the entire two
and a half hours. It wasa fascinating argument. And I thought that

(03:40):
Trump's lawyer, in fact, hesounds kind of like I do right now.
He had this really raspy voice.He sounded a little bit like a
cross between me and Bobby Kennedy Junior. I got it is particularly good.
Here are a few of the highlightsthat people have posted. Julie Kelly,

(04:05):
who does phenomenal work covering the Januarysixth cases. She says that Scotus was
unimpressed, to say the least,with the DC Appellate Court decision, and
justifiably so. The three judges tookless than a month after oral argument's tuition

(04:25):
opinion. A rush job was evennoted by Justice Roberts the Court of Appeals
Low, whose decision we're reviewing,said, quote, a former president can
be prosecuted for his official acts becausethe fact of the prosecution means that the
former president has allegedly acted in defianceof the laws. Do you agree with

(04:46):
that statement? But I think it'sThis is Michael Dreman, who is the
employee of the Department of Justice.He is the counselor to the Special Council.
Let me just enterae. I'll restartthis soundby but it just makes me.

(05:08):
It reminds me the thing that Ifound infuriating yesterday. Although maybe in
hindsight it was good that he wasn'tthere, but Donald Trump had an absolute
right to be present in the SupremeCourt during that hearing. The judge,

(05:30):
the little pissant New York State Judge, refused to allow him to go and
instead forced him to remain in thatdingy New York City court room rather than
in the Hallldhalls or the United StatesSupreme Court as a former president of the
United States of America where a casewas being heard, that is, even

(05:58):
considering the cases, is truly anunprecedented case that will have generational effects on
the presidency. This was a monumentalcase yesterday, and the defendant was not

(06:19):
allowed to be there. That alone, in my opinion, shows how desperate,
utterly desperate, and how political thesecharges are. This is nothing more
than the Democrats, the Marxists outscrewat the Communists, trying to influence an

(06:46):
election, trying to kill an opponent. We might as well be Argentina.
We might as well be Ecuador atthis point. Might might as well be
I don't care, might well beRussia. Might as well be Airing Yoshkovich,
whatever his name is. The WallStreet Journal reporter just being held in
detention for allegedly being a spy.Well, Trump's being held in detention for

(07:10):
allegedly being a criminal. It's it'sunbelievable. Let me go back and start
this over now. This is MichaelDreaman. You'll first hear Justice Rock Chief
Justice Roberts asking a question about theDC case that they are hearing on appeal.

(07:31):
Here's what you need to know aboutMichael Dreaton. He is the counselor
to the Special Council. He wasalso counsel to Robert Mueller in the Russian
investigation. These people are everywhere.This is the administrative state, this is

(07:53):
the Department of Justice, and allof those civil servants living to fight another
day because nobody can fire them.And this is the using their offices to
go after a political opponent. TheCourt of Appeals below, whose decision we're
reviewing, said, quote, aformer president can be prosecuted for his official

(08:16):
acts because the fact of the prosecutionmeans that the former president has allegedly acted
in defiance of the laws. Doyou agree? Do you get what?
Well, let me just sorry forinterrupting. Agree with that statement? Well,
I think it sounds tautologically true,but I want to underscore that the

(08:41):
obligation of a president is to takecare that the laws are faithfully executed.
Well, I think it sounds tautologicallytrue as well, and that I think
is the clearest statement of the Court'sholding, which is why it concerns me
as I read it. It sayssimply, a former president can be prosecuted
because he's being prosecuted. Well,I would not suggest, which is the

(09:03):
very definition of totological. You're justsaying the same thing twice. What just
As Roberts is saying is what thecourt below basically said, Well, you
can you can prosecute a former presidentbecause you are prosecuting a former president,
and because you are prosecuting a formerpresident, then therefore you lawfully can prosecute
a former president. I mean,it's it's circular, it's big. It's

(09:28):
just a big, giant circle.You know what, as I read it,
it says simply a former president canbe prosecuted because he's being prosecuted.
Well, I would not suggest thatthat's either the proper approach in this case
or certainly not the government's approach.A prosecution does, of course invoke federal

(09:50):
criminal law. The allegations have tobe presented to a grand jury, which
votes upon the indictment. Well,that's what I and this is fantastic too,
he's trying to argue with, Butwait a minute, No, we
have to go through all these proceduralthings, like first of all, we
have to investigate, and then wehave to you know, you know,
present it to a grand jury.Do you know that in these hearings,

(10:15):
in these oral arguments yesterday? Youknow the old saw about you know,
any prosecutor worth as salt can indicta ham sandwich. You can get a
grand jury to indict a ham sandwich. That phrase was literally used yesterday because
that's how absurd the government's argument is. Well, listen, he's getting due

(10:37):
process because we went to a grandjury. And he I forget whether it's
Chief I think it was Chief JusticeAlito, but one of the justices was
like, seriously, you're trying totell us that this is okay because you
took it to a grand jury.Well, you know, you can just
indict a grand you know, youcan indict a ham sandwich. I mean

(10:58):
shortly after this statement in the courtCourt's opinion, that's what they said.
But there's no reason to worry becausethe prosecutor will act in good faith,
and there's no reason to worry becausea grand jury will have returned the indictment.
You know how easy it is inmany cases for a prosecutor to get
a grand jury to bring an indictment, and reliance on the faith good faith

(11:20):
of the prosecutor may not be enough. In some cases, I'm not suggesting
here. So if it's toutal logicaland those are the only protections that the
Court of Appeals below gave, andthat is no longer your position, you're
not defending that position, why shouldn'twe either send it back to the Court

(11:41):
of Appeals or issue an opinion makingclear that that's not the law. Well,
I am defending the Court of Appealsjudgment, and I do think that
there are layered safeguards that the courtcan take into account that will ameliorate concerns
about unduly killing presidential conduct. Thepoint being, and I think what Chief

(12:03):
Justice Roberts was driving here is thatthe dec Court of Appeals just said,
well, you went, you wentthrough all these procedural things what we would
call lawyers would refer to as proceduraldue process. But those don't really matter
because you can get for example,you can follow all the procedures and get
what you want, regardless of thesubstantive nature of the charges. You can

(12:30):
still get it because you can indicta ham sandwich. Well, that's really
true. The Trump lawyer argued forpresidential immunity, and he gave He gave
three examples. He talked about Bushlying to Congress to induce the war with
Iraq. You know, Colin Powell, my late good friend, testify,

(12:52):
or I shouldn't say testify. Hespoke for the United Nations about having found
yellow cake, and then we foundthat yet later that. Let me just
say this about the Iraq war.I sincerely believe that there were weapons of
mass destruction in Iraq. But oncewe started threatening Saddam Hussein, we gave

(13:13):
Saddam Hussain plenty of time to moveall of the WMD out of Iraq,
into Syria and into Russia, sothat when we actually invaded, of course,
we didn't find anything. I don'tthink Colin Powell was lying. I
think Colin Powell was acting in goodfaith. But nonetheless, people argue that
Bush lied to Congress to induce thewar with Iraq. Two Obama ordered drone

(13:37):
strikes to kill those US citizens.Yes, was that an active war was
an act of national security. Youcan make that argument. That's why,
and that's why I believe that Obamashould not have been indicted for those things.
Do you think, though, ifDonald Trump had ordered well, let's
just say, let's think about this. Donald Trump ordered a your own strike

(14:01):
on an individual Solomony. Remember thatIraqi general he ordered the murder of a
individual. Now you can argue thatthat individual was indeed ordering the killing of
American soldiers in Syria and other places. But what's the difference between Obama ordering

(14:22):
a drone strike on Zawahari and Trumpordering a drone strike on Solomony. What's
the difference. Obama ordered drone strikesto kill you? In this case,
Obama was ordering a drone strike tokill a US citizen. What's Biden doing?

(14:43):
Biden is inducing foreigners to commit thecrime of illegal entry in the United
States. He is actively engaging andencouraging that. The implications of the Court's
decision here extend far beyond the factsof this case. Could President George W.

(15:05):
Bush have been sent to prison forobstructing an official proceeding or allegedly aligned
to Congress to induce war in Iraq? Could President Obama be charged with murder
for killing US citizens abroad by dronestrike? I Could President Biden someday be
charged with unlawfully inducing immigrants to enterthe country illegally for his border policies.

(15:31):
The answer to all these questions isno. Prosecuting the president for his official
acts is an innovation with no footholdin history or tradition, and incompatible with
our constitutional structure. He's absolutely right. That's the lawyer for Donald Trump.
He's absolutely right. Then there isthis one Justice Jackson, whom I do

(15:56):
believe is the lightweight on the court. This woman has no business being a
US Supreme Associate, US Justice SupremeCourt justice. She's just an airhead.
She gets embarrassed by Trump lawyer JohnSawyer because she tries to describe an America
where the president has immunity, andit doesn't go very well for her.

(16:21):
Meajament Trumplin said, as we viewedthe prosecution of a chief executive as something
that everybody cried out against his unconstitutionalAnd what George Washington said is we're worried
about factional strife, which will noI also let me let me let me
put this worry on the table.If the potential for criminal liability is taken
off the table, wouldn't there bea significant risk that future presidents would be

(16:42):
emboldened to commit crimes with abandon whilethey're in office. It's right now the
fact that we're having this debate becauseoh well, c has said that presidents
might be prosecuted. Presidents from thebeginning of time have understood that that's a
possibility. That might be what haskept this office from turning into the kind

(17:03):
of crime center that I'm envisioning.But once we say no criminal liability,
mister president, you can do whateveryou want. I'm worried that we would
have a worse problem than the problemof the president feeling constrained to follow the
law while he's in office. Yeah, hear what Trump's lawyer says. In

(17:25):
response to that, he hands perhap, Hey, Michael, I'm having trouble
with the talkback feature, and I'mhoping that you could submit a trouble ticket
on my behalf. I'll email youthe details. Yeah, and we'll get
back to you on that resolution withinSee it's April. What are you thinking,

(17:48):
dragon, maybe October. I wasgonna say, hopefully before the end
of the new year. Yeah,okay, all right, well you're the
end of the year. Yeah,Yeah, we'll get back to you.
We'll get back to you. Whenwe get back to you, that's when
we'll get back to you. Uh, goober number twenty two fifty five rites

(18:10):
that you know, and John Robertsknows that Trump had a right to be
there, but never said a word. It's not his place to say a
word. It's not that's not thecourt's responsibility. It's just whoever shows up
shows up. The only thing I'mpointing out is that Trump had a right

(18:33):
to be there. Trump didn't havean obligation to be there. He had
a right to be there because heis a named party and so he had
a right to be at that table. It's not the responsibility of the court
to acknowledge who is or is notpresent in term other than the lawyers who

(18:56):
are there to argue the case.Those are the the only people that the
court has any obligation to acknowledge.So I understand from the the rest of
the things you say about John Roberts. You think he's a communist, blah
blah blah blah. But you're freeto think that. But you're thinking for

(19:18):
all the wrong reasons. If youthink John Roberts is a comedy, he's
not a comedy because he didn't acknowledgethat Donald Trump couldn't be there. That's
not his issue. It's not anissue for the court. Come on this,
This is what drives me crazy.I'm not yeah, I am picking
on you. This is kind ofwhat drives me crazy. I think sometimes
about conservatives is that we find thesestupid little nippicky things, the stupid little

(19:44):
niitppicky things that have no they haveno relation to anything substantive going on whatsoever.
I simply pointed out that Trump hada right to be there. And
it's the judge in New York.If you want a bitch about a communist,
for God's sake, bitch about thecommunist judge in New York, not

(20:07):
the freaking United States Supreme Court,think straight, don't don't let your because
John Roberts is because John Roberts hasn'tturned out to be the absolute, you
know, strong conservative that we allwanted it to be, doesn't mean that
he's the communists. The communist isthe guy over here in New York.

(20:32):
Oh, it drives me crazy.Anyway, back back to the arguments.
So I just want to restart becauseI want you to hear the whole thing
again. What Justice Jackson is sayinghere is, and nobody is arguing,

(20:53):
including Trump's lawyers, that there isabsolute immunity for anything. If you look.
I was so pissed off with theDrudge Report yesterday because the judge the
Drudge Report pretty much was I ifthe President decides to us in fact,
they use Seal Team six as anexample to assassinate a political enemy, can

(21:22):
he be is he criminally liable forthat? Well, it boils down to
if it's an official act, hemay be immune from it. But that's
a fact question for a court todecide. The Drudge was all about.
I mean, they were just takingeverything out of context, and it just
drove me nuts. That's what happenswhen you're second. You get to sit

(21:48):
home all day and you get tolisten to the entire argument and then you
get to list see how the cabalis covering it. But here's the point
about Justice Jackson. She's trying toargue that if you had absolute immunity for
everything that then there would be theOval Office would turn into basically a mob

(22:10):
headquarters. It would be Tony Soprano'slittle place on that street in New Jersey
that they operated out of, oror the the the key bar that all
the girls were at they always wentto. That's what the Oval Office would
turn into. And what John Sowerthe attorney for Trump argues or points out,

(22:37):
is what you're describing is exactly theway this country is operated for over
two hunred and thirty four years.And he starts out with the historical precedent
that George Washington pointed out that ifwe don't give the commander in chief immunity,

(23:00):
that we will indeed face all ofthese factions and we will soon lose
liberty and freedom. Chief executive issomething that everybody cried out against his unconstitutional
and as the very beginning, letme start that over. Jajamin truth like
said, as we viewed the prosecutionof a chieved executive is something that everybody

(23:21):
cried out against his unconstitutional And whatGeorge Washington said is we're worried about fractional
strife, which will no I'm alsolet me let me, let me put
this worry on the table. Ifthe potential for criminal liability is taken off
the table, wouldn't there be asignificant risk that future presidents would be emboldened
to commit crimes with abandon while they'rein office. It's right now the fact

(23:45):
that we're having this debate because ohwell, c has said that presidents might
be prosecuted presidents from the beginning oftime have understood that that's a possibility.
That might be what has kept thisoffice from turning into the kind of crime
center that I'm envisioning. But oncewe say no criminal liability, mister president,

(24:06):
you can do whatever you want.I'm worried that we would have a
worse problem than the problem of thepresident feeling constrained to follow the law while
he's in office. So she's allworried that, yeah, it's going to
turn into a little mob office.If these presidents feel unconstrained, they can
do whatever they want to do.And his answer is, and the answer

(24:30):
before you hear his answer, becauseit's just it's a simple now fifteen words,
fifteen word answer. But it hasto do with legitimacy. You hear
me talk a lot about legitimacy,and that is we operate in this constitutional
order based on the morality of man, and that is that we expect people

(24:56):
to be I don't laugh, butthis is how our system works. That
the people that we elect will bepeople of moral standards. They will understand
right from wrong, They will dowhat they believe is right, and they
will do so based on judaeo Christianethics. We are a Christian nation founded

(25:22):
on Christian principles. That doesn't meanwe're a theocracy. You can be an
atheist in this country and you canstill abide by Judaeo Christian ethics. So
Justice Jackson, being the airhead thatshe is, well, think about this.

(25:44):
If we adopt your position, thennow we've turned the Oval Office into
a just a criminal hotbed. Andhis answer is so simple and undercuts her
completely. I respectfully disagree with thatbecause the regime you've described is the regime
we've operated under for two hundred andthirty four years. There has spam.

(26:08):
The regime that you just described,just as Jackson is exactly the one that
we've operated under for over two hundredand thirty four years. What are you
talking about? I respectfully disagree withthat because the regime you've described is the
regime we've operated under for two hundredand thirty four years. There has not
been an expectation based on two hundredand thirty four years. One broken point.

(26:30):
All right, let me ask youanother question, ker Let me ask
you another question about this. Yeah, enough of her. There was one
point too, where Justice Alito absolutelytears apart the DC Court of Appeals opinion
that sufficient protection exists without immunity inthe form of federal grand juries. These

(26:53):
grand juries will all protect us from, you know, a horrible president that
does and lawful things. Oh,just briefly review the layers of protection that
you think exists. Then I'm goingto start with what the DC Circuit said.
So, the first layer of protectionis that attorneys general and other Justice

(27:15):
Department attorneys can be trusted to actin a professional and ethical manner. Right,
Yes, how robust is that protection? I mean, most of the
vast majority of attorneys general and JusticeDepartment of attorneys, and we both served
in the Justice Department for a longtime, are honorable people, and they

(27:37):
take their professional ethical responsibilities seriously.But there have been exceptions, right,
both among attorneys general and among federalprosecutors. There have been rare exceptions,
Justice Alito. So as for attorneysgeneral, there have been two who were
convicted of criminal offense as while inoffice. There were others a Mitchell Palmer's

(27:59):
one that comes to who is widelyregarded as having abused the power of his
office. Would you agree with that? I would, But they are two
officials in a long line of attorneysgenerals who did not, and in departments
of justice that are staffed by multiplepeople who do it. Here to their
office. So moving on to thesecond level of protection that the DC Circuit

(28:22):
sited, federal grand juries will shieldformer presidents from unwarranted indictments. How much
protection is that, Well, itaffords two levels of protection. One is
the probable cause finding requires evidence.I think some of the furious about groundless
prosecutions aren't supported by evidence and they'renot going to get out of the starting

(28:44):
game. There's the old saw aboutindicting a ham sandwich. Yes, but
I think Justine, you had alot of experience in the Justice Department.
You come across a lot of caseswhere the US Attorney or another federal process
could have really wanted to indict acase, and the grand jury refused to
do something. No, that's neverhappened. That's never happened. You take

(29:10):
it to the grand jury just simplyto cover your ass. That's what you
do. And then think about thisreasoning. If a president is protected by
the integrity of all attorney generals,then I guess that means that if an
attorney general tells you that something islegal, then that makes it legal and

(29:33):
you can do whatever you want todo as long as you've got an attorney
general will tell you that, yeah, what you want to do is okay.
Yeah. That's what it really boilsdown to. I'll be right back.
Is an impeachment by Congress the remedyfor a runaway president. That was
brought up quite a bit, andit is. It's not the only though.

(29:57):
Here's where we are. Let's thinkabout the two extreme sides. The
one extreme side is this is theside that's that the special count that Jack
Smith is taking, and that isthat a president would have no immunity from
criminal charges for you, even forofficial acts such as a drone strike or

(30:18):
line to Congress. You know,you're you go to Congress and you tell
Congress that you want this bill becauseof X y Z, when you really
want it because of ABC or thebill is going to do. You know
this bill is how many times thepresidents lie about any number of things.
Lying to Congresses is a felony.The presidents lie all the time. Special

(30:42):
Counsel Jack Smith's argument is that apresident would have no immunity from criminal charges
even for official acts taken during theterm of his presidency. That would mean
a president would have no protect fromjust endless charges from politically motivated prosecutors,

(31:06):
which is what Justice Alito was sarcasticallyreferring to when he talked about, oh,
the integrity of attorneys general and theintegrity of you know special prosecutors and
you know US attorneys around the country. No, they're human beings, and
they are politically motivated, and theycan go to a grand jury and they

(31:26):
can get it. They can getthat ham sandwich and died in front of
a grand jury. So that's theone extreme. The other extreme is,
and this is Trump's arguments argument thata president should have complete immunity from everything.
Well, if you take that tous extreme, that means that a
president would never be held accountable ifindeed he actually committed a criminal act,

(31:49):
and a criminal act during the termof his office. Now, during the
term of his office, if apresident commits a criminal act, and this
is where the nexting cases came upso many times, the remedy is impeachment.
So then if the remedy is impeachmentfor criminal act. However, if

(32:15):
he is impeached, convicted, andremoved from office because that's the remedy for
an impeachment. An impeachment, ifyou're convicted for high crimes and misdemeanor,
you're removed from office. But whatif what if you do an official act

(32:37):
that's not subject to Congress's impeachment powers. Well, Trump's lawyers are trying to
argue that there is complete immunity forany criminal act. Well, I think
that's too extreme. So I thinkboth parties have taken extreme positions in order

(33:04):
to make their case. What thecourt needs to do is the court needs
to somehow draw a line, whichI think they will. I think the
case. I think the case willbe decided at a minimum sixty three.
It could be I mean, itcould be seven to two. I don't
think somebody I think it'll be asixty three decision. And I think what

(33:27):
they'll do is they'll figure out away to distinguish between official acts. Now
bear with me, this is hardto this is really hard to articulate.
They will try to figure out away to distinguish between an official act as
president versus a private act. AndI've tried to think of what can I

(33:54):
use as an example, And thefirst thing that I thought of was.
Let's say that, you know,Bill Clinton used to try to sneak out
of the White House and go toMcDonald's. Let's say, though, that
Bill Clinton decided to sneak out ofthe White House and go to McDonald's,
which is a purely private act,no presidential, He has no Secret Service

(34:16):
protection or anything. He sneaks outof the White House, but he drives
a vokes Wagon beetle that he's hiddensomewhere on the White House grounds, and
he drives out onto G Street,and in so doing he speeds up,
drives too fast, kills a pedestrianmanslaughter. Is he immune from manslaughter charges?

(34:42):
I don't think he should be,at least not while he's president.
Maybe afterwards he gets charged