Trump v. United States - Post-Argument SCOTUScast

On April 25, 2024, the Supreme Court heard oral argument in Trump v. United States. The Court considered whether, and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.

Please join us as we break down and analyze how oral argument went before the Court.

Featuring:
Mr. Steven Bradbury, Distinguished Fellow, The Heritage Foundation

Episode Transcript

(00:02):
Welcome to scot Discast, a projectof the Federalist Society for Law and Public
Policy Studies. Our contributors joined usfrom around the country to bring you expert
commentary on US Supreme Court cases asthey are argued and the decisions are issued.
The Federalist Society takes no position onparticular legal or public policy issues.
All expressions are those of the speaker. Hello, and welcome to scot Discast.

(00:30):
I'm your host, Kyle hammernis On, behalf of the Faculty division of
the Federalist Society. We are heretoday to discuss Trump versus United States,
which was argued before the Supreme Courton April twenty fifth, twenty twenty four.
It is my honor to introduce ourguests today, Stephen Bradbury. Stephen
is a Distinguished Fellow at the HeritageFoundation. He has also served in multiple

(00:53):
administrations, first in the George W. Bush administration as the Principal Deputy and
Acting Assciation Attorney General for the Officeof Legal Counsel in the US Department of
Justice, and then in the Trumpadministration as the Senate Confirmed General Council of
the US Department of Transportation. Andwith that, i'd like to turn things
over to our guests to summarize thebackground of the case and the lower courts

(01:15):
proceedings. Great Kyle, thanks somuch pleasure to be here. This is
the prosecution brought by Special Council JackSmith against former President Donald Trump that's colloquially
known as the January sixth prosecution orcase here in Washington, d C.
Is the second of two federal criminalindictments brought against President Trump by Jack Smith.

(01:42):
The first one is the Document's casedown in Florida, but then this
January sixth case. This case islargely based on the evidence that was developed
by the January sixth Congressional committee thatinvestigated the riots and the break in of
the Capitol on January sixth, andput together evidence purporting to tie Donald Trump

(02:05):
to the events of January sixth.Jack Smith then weaves that into an indictment
that was approved by a grand juryin the District of Columbia and brought in
federal court before Judge Tanya Chuckkin,Federal District judge in DC. The charges
in the indictment against Trump in thiscase involve allegations of fraud on the United

(02:30):
States, conspiracy to defraud the UnitedStates, interference or conspiracy to interfere with
official proceedings of the federal government,and also a charge of conspiracy to deny
voting rights to American citizens, allrelated to activities around the election of twenty

(02:57):
twenty and President trum efforts to underminethe results of the election in certain states
or cause states to reconsider those results, recount the votes, etc. The
conduct that's alleged in the complaint,and that the complaint charges underlies these alleged

(03:20):
crimes involves the former president communicating hisviews to the American people through tweets,
speeches, otherwise, that the votingwas infected with fraud and anomalous activities in
the various states that called into questionthe certified results in those states. His

(03:46):
efforts to communicate with state legislators andstate officials to cause them to reconconsider,
take another look at the votes,accept his concerns about the fraud in the
election, and his discussions with hissubordinates in the Department of Justice, and
his efforts to urge the Acting AttorneyGeneral and others in the Department of Justice

(04:12):
to take action on these theories ofvoting fraud and to send letters or communicate
to the states the views of theJustice Department, really the President's views that
they need to reconsider their votes,his communications with his own vice president,
who is the president was the presidentof the Senate, presiding at the joint
session of Congress when they were gatheredto count the electoral votes and certify the

(04:38):
final results of the election, andurging the vice president to act to push
off or stall the certification of thevote. Similar discussions with other members of
Congress to do the same. Thesecharges before Judge Chuckin relate obviously to a

(05:03):
lot of activities of the president thatinvolve speech, involved petitioning state governments based
on his complaints about the way theelection was conducted, efforts to manage his
own subordinates within the executive branch totake action, and communications with Congress.

(05:26):
Kind of mixed in there are whatyou might describe as official acts of a
president in office, also some actsthat you might describe as the private acts
of a candidate for office, allkind of mixed together in the various allegations
in the indictment. So President Bushand his lawyers brought a number of motions

(05:50):
before Judge Chuckkin to try to getsome or all of these charges dismissed,
and those motions included using the FirstAmendment as a defense, but also claiming
that to the extent what's being chargedin the indictment involved the official actions of

(06:11):
a president, he as a formerpresident, was absolutely immune from criminal liability
for any of those actions. Andthis argument about absolute immunity for former president
was patterned by his lawyers after thesimilar doctrine of absolute immunity that the Supreme

(06:32):
Court recognized way back in the nineteeneighties in a case called Nixon versus Fitzgerald.
And this was absolute immunity the SupremeCourt has recognized for civil liability,
that is, civil lawsuits that mightbe brought against the former president. In

(06:53):
the case of Nixon versus Fitzgerald,it was an official in I believe the
State Department who had been fired fromhis job, removed from office, and
he claimed improperly and he brought alawsuit against a number of Nixon administration officials,
including the former President of the UnitedStates, Richard Nixon, and Nixon
said, wait a minute, Ishould be immune, because if you don't

(07:14):
give me immunity from a civil chargelike this, future presidents will be hampered
in their willingness and ability to carryout the functions of their office, because
they could potentially face unlimited civil liabilitylawsuits for all manner of grievances involving the
official actions of the White House officialactions of the President, and the Supreme

(07:36):
Court agreed with that argument and recognizeda doctrine of absolute immunity for civil liability
against a former president. And thescope of that immunity is very broad.
It reaches to what the Court describedas the outer perimeter of the official actions

(07:57):
of a president. So if there'sany plan argument that what the president was
doing was within his authority as commanderin chief for chief executive of the executive
Branch under the Constitution, that hewould have absolute immunity from civil liability.
So President Trump argued for the samekind of immunity for criminal liability. This

(08:18):
is not something Supreme Court has everheld. This is a new This would
be a new extension of immunity,a new immunity doctrine. And that's because
this is an unprecedented situation where theJustice Department of the United States, through
Special Council Jack Smith, is attemptingto prosecute a former president for actions he

(08:39):
took while in office, and that'snever happened before in the history of the
country. So obviously a Supreme Courtnever had a previous opportunity to address this
question of immunity for criminal liability forpresidents. This argument didn't go so well
before Judge Chuckkin in the DC.She gave it the back of her hand.

(09:01):
She rejected any notion that a formerpresident could claim any protection whatsoever for
his official actions or arguably official actions, from criminal liability of any kind under
any federal criminal statute. And asyou know, some criminal statutes are expressed
in very broad terms. They talkabout whoever does this or if any person

(09:26):
does X or y. And ifyou think about applying some of those statutes
to the official acts of a president, the potential for creative application could be
quite expansive. Think about the chargesbrought in this case, fraud on the
government. Any communication a president makesto Congress to other elements of the federal

(09:50):
government. If there's an argument thatthose communications were misleading or false, there's
at least the potential for criminal lifeability there as a fraud or interfering with
an official proceeding. Anytime the presidenttakes an action that could arguably impede Congress's
ability to meet or conduct business,or some agency or entity of the government.

(10:15):
Same kind of argument could be madeto attempt to impose criminal liability on
a former president who had approved anaction like that. So the issues are
novel, the issues are serious.Judge Chutkin did not think there was any
basis for any protection whatsoever. Itwent up to appeal to the d C

(10:39):
Circuit, and President Trump took anemergency appeal up trying to get basically an
order blocking the trial from moving forward, and the DC Circuit heard argument on
an accelerated basis this past December,and in early January issued an opinion from

(11:00):
a three judge panel in DC thatagain rejected any notion that the president could
claim protection immunity of any kind andreally sort of denigrated the argument that was
made by President Trump's lawyers. Youprobably saw the coverage about some of the
exchanges in the oral argument before thepanel of judges in d C, where

(11:24):
they got the president's lawyer to acknowledgecertain hypothetical extreme situations where the immunity they're
claiming might apply to actions that onewould think were pretty outrageous, and that
got a lot of coverage. Butagain the bottom line was the DC Circuit

(11:46):
said no protection, No matter howbroadly worded the statutes are, no former
president has any protection against criminal liability. We're just going to leave it up
to the discretion of politically appointed prosecutorsin the Justice Department who may be able
to get an indictment from grand juryin a district like the District of Columbia

(12:07):
that may be very much politically opposedto the former president in question. And
that arguably is what has happened righthere in DC, and so much to
the surprise I think of a lotof legal analysts and observers. The Supreme

(12:28):
Court was very interested in this issue. Initially, the Special Council Jack Smith
tried to get the Supreme Court totake cert on this case back in December
to short circuit President Trump's assertion ofimmunity and force an early trial. Jack
Smith is hoping to get a trialon this January sixth case before the election.

(12:54):
The Supreme Court denied his effort toget cert early. They waited for
the DC Circuit to hand it's opiniondown, and then President Trump petitioned for
cert on the case. Actually hefiled an application for emergency relief, and
the court essentially converted that into acert petition, ordered Jack Smith to respond,

(13:16):
and took a lot of Amika's briefsin, and then in pretty quick
order, granted cert I think,to the surprise of a lot of observers,
and set it for argument on Apriltwenty fifth as a final argument in
the term this year. So theargument occurred a week ago today. So

(13:37):
Kyle, I'll turn it back toyou. That's the lead up to the
oral argument from last week. Thankyou so much. That was really,
really excellent, really setting the stagefor us. So as we turned toward
the oral argument, now, canyou give us just, you know,
kind of your thirty thousand foot viewof the argument before maybe we dive into

(13:58):
particulars. I think the bottom lineis a number of justices, perhaps a
majority, seemed very concerned about thepotential for a negative impact, chilling effect
on future presidents from broad notions ofcriminal liability, and seemed to be exploring
very seriously the possibility of some middleground, some form of protection for the

(14:24):
official actions of a former president fromcriminal liability. You might call it immunity.
You might say there were exploring ideasof qualified immunity. We can get
into a little more as we discussthis what that might mean. But I
think although there didn't seem to beappetite among the justices to go the whole

(14:50):
way that President Trump's attorneys, ledby John Sower, who presented the argument
we're arguing for in terms of verybroad absolute immunity, nevertheless, it did
seem there's serious consideration given to someform of immunity or protection likely to result

(15:11):
in sending the case back potentially tothe district Court again to reconsider these issues
in light of the guidance that thecourt will give in this case. And
the bottom line there in terms oftiming is that almost certainly means the underlying
trial in this January sixth case isnot going to happen before election day.

(15:39):
So I guess before we get intoany ramifications, and I know you just
mentioned one right that this cases lookslike it will be pushed back to the
district Court and then pass the electiondate and not necessarily interfere with the election
as much as some had thought itwould. Do you want to talk more

(16:03):
about like the qualified immunity kind ofmiddle ground that you had just mentioned in
your previous response. Yes, Ithink for people's understanding, it's probably best
to think in terms of layers ofpotential issues. I described the immunity of

(16:25):
Nixon versus Fitzgerald that President Trump isarguing for. But before you get there,
there are layers that, layers ofissues you might address even before you
get to that point. So,for example, I describe the broad nature
of some of these criminal statutes,and I think the Court is going to

(16:48):
at least several members of the Courtwill think hard about, well, what
might it mean for a future presidentif there were no restrictions on the application
of those rad criminal statutes to allmanner of actions that a president might take
in office. Would there be anyissue in terms of interfering with the president's

(17:11):
ability to carry out his duties underArticle two of the Constitution. I think
that's the primary concern of the Court, and that was expressed by a number
of Justices, Justice Alito, theChief Justice, Chief Justice Roberts, Justice
Kavanaugh most clearly. Justice Barrett alsoexplored what of the charges in this case

(17:37):
might have might have involved official actionsof the president and what might have involved
private conduct and what were the viewsof the parties on those questions, all
getting at this concern that the applicationof criminal broadly worded criminal statutes to official
actions of the president of certain kindsmight have a chilling effect on the willingness

(18:00):
to future presidents to undertake important actionsthat really are needed for the country to
serve the interest of the country.A second, and so that raises this
issue of what how do you distinguishbetween an official act of the president and
a private act, a personal actof the president not in his official capacity,

(18:21):
A line that I think is goingto be important for this case if,
as I suggest, it might beremanded for further consideration in the lower
courts. But then a second questionis what type of duties of the president
under Article two should be immune?Should certain core functions of the president that

(18:45):
are essential to his carrying out hisfunctions as president under Article two should they
get special protection? I think everybodyagreed in the argument, including the Jacksmith,
the lawyer who's arguing for the JusticeDepartment, Michael Dribin, who's a

(19:06):
longtime veteran of the Slicter General's Officecriminal law expert for the sg's office.
Even he I think acknowledged that ifyou're talking about core duties, core authorities
of the president, like the pardonpower or the authority to direct the troops
on the battlefield as commander in chief, appointment power, deciding who he's going

(19:30):
to appoint to office, that thosetypes of core functions should be free from
criminal challenge criminal liability. Now,if the president did those functions in exchange
for a bribe, for example,the taking of the bribe, I think

(19:51):
everybody agreed, including President Trump's lawyer, everybody agreed that that could be the
bribe itself, the taking of thebribe could be the subject of criminal charge,
but the appointment or the pardon thatmight be given in exchange for the
bribe couldn't be challenged. That's anexercise of president's prerogative as president. Doesn't

(20:14):
matter why the president is deciding topardon somebody or appoint somebody, etc.
Sort Of there is an example ofan interesting distinction. But so I think
that the court may try to distinguishbetween certain core functions of the president and
others. And of course, hereMichael Drieban argued that none of the activities
charged in the indictment. He suggestedwere core functions of the president. For

(20:40):
example, he said that presidents don'thave any role in how a state counts
votes in a presidential election. Presidentsdon't have a formal role in how Congress
conducts its business in counting electoral votes, for example. Presidents do obviously have
a role in supervising the attorney generaland the other subordinate officers in the Justice

(21:06):
Department, or the vice president.So there may be certain things there that,
even under this argument, might beconsidered core. But the question would
be whether the court, for example, will require that if it is addressing
some core function of the president,the statute at a minimum, the criminal

(21:27):
statute needs to be very clear thatit is intended to apply to the president
before a court will interpret it toapply to the president. So you may
get layers of arguments like that atthe threshold before you get to an immunity
question. But then squarely addressing immunity, it did seem that a number of

(21:51):
the members of the Court are goingto be considering the possibility of some kind
of hybrid or qualified immunity. Justas Alito brought this up, express he
raised the idea, well, whatabout protections that apply to any conduct of
a president while in office that plausiblyinvolve official actions of the president and his

(22:15):
official responsibilities or authorities as president,and so a sort of a generous envelope
of protection, the outer reaches ofwhich would be is there a plausible argument
that this is an exercise of thepresident's constitutional authority. Certainly there are members
of the Court, the liberal justicesJustice Kagan, sod Mayor, and Jackson,

(22:40):
who seemed very clearly opposed to anyidea of that kind of immunity,
and they also pushed back on thenotion that the case was really properly before
the court and that the Court neededto go through all of these issues.
We'll see how they end up interms of where they might fall on this

(23:04):
spectrum of different layers to the argument. I really think even they might agree
on some kind of protection for thecore functions of a president, some kind
of inquiry as to whether functions atissue are official acts of the president or
personal acts of a candidate for office. And even the President Trump's lawyer agreed

(23:29):
that certain of the charges in theindictment involved the personal actions of President Trump
is a candidate for office. Soeven under President Trump's own attorney's view of
the case. There are certain aspectsof the indictment that could still go forward,
at least potentially, but all ofthat would require a careful reassessment by

(23:51):
probably by Judge Chuckkin in the firstinstance, and probably would go back to
the district court for that kind ofline drawing and consideration. So a lot
of complicated issues. I think you'llsee a lot of commentators are kind of
surprised that the court first of alltook the case, and second of all,
that gave so much that President Trump'sarguments got so much traction. So

(24:14):
I think you have to say,at the end of the day, it
was a very good day for PresidentTrump in the Supreme Court because it's definitely
not a frivolous claim, not afrivolous argument on his part. The Court
gave it serious consideration. A numberof justices are clearly concerned about the potential
impact negative impact on future presidents.And there really seems to be some scope

(24:38):
of or at least some serious interestin identifying some scope which you might call
qualified immunity or immunity of some formfor former presidents. So that's a huge
deal. This could be a historicdecision from the court. Certainly, the
issues being addressed are about as importantas they can be under our constitutional structure,

(25:00):
and so I just I just haveto think that, you know,
for that reason, I would sayPresident Trump had a good day in the
court. His lawyer John Sower dida really good job addressing all these issues.
I think it was it was somethingof an exciting argument. It was
a rich argument in terms of allthe issues that were addressed. I believe

(25:22):
in both sides, both lawyers onboth sides presented really strong arguments from their
perspectives. I think the court probablyfelt it got everything it needed out of
the oral argument, and I don'tthink you could say that for a lot
of cases really at the end ofthe day. And so it'll be very
interesting that obviously the opinion this isgoing to be a contentious one, and

(25:45):
I doubt it will. It willprobably come down the very last week of
the term, probably in late June. But you have to say, right
now, the tea leaves are lookingbetter for President Trump than I think a
lot of commentators thought they would goinginto this in January. Well, Steven,
thank you so much for joining us. We will definitely be looking forward

(26:06):
to what happens at the end ofJune and and kind of the fallout of
this case. Thank you so muchfor joining us. Oh my pleasure.
Thank you, Kyle, take care. Thank you for listening to this episode
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(26:29):
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(26:51):
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