BHS - 8A – Trump Immunity Case: Ex-Presidents Protected | 'Do They Have a Case'

Trump immunity case: Supreme Court rules ex-presidents have limited protection from prosecution. ‘Do They Have a Case’ with Wayne Resnick.

Episode Transcript

(00:00):
You're listening to KFI AM six fortythe Bill Handle Show on demand on the
iHeartRadio f And this is KFI AMsix forty Bill Handle here on a Monday
morning, hot Monday morning, Julyone, and boy, what a morning
it is. And I may justtick to the topic at hand for a

(00:22):
while because a decision, the decisioncame down just a few minutes ago by
the US Supreme Court, and ithas really muddied the waters. Now.
The decision actually in some ways makessense. The problem is that this is

(00:43):
Donald Trump. And I don't thinkthis could ever happen with any other president.
I cannot imagine that because Trump's argumentthat went up to the Supreme Court
is he had asked the court tostop the Jack Smith special prosecutor case against
him, the criminal trial or thecriminal allegation that the president in trying to

(01:07):
overturn the election, a legal electionwhich the courts of courts of deemed legal,
and trying to overturn the vote ofthe electoral college, which the courts
have deemed legal, and trying tostop the certification of the announcement that Joe
Biden had won, which the courtsaid deemed legal. And he is saying,

(01:30):
none of that matters because he,the president, has complete and total
immunity for virtually anything he does aspresident. And the Supreme Court came down
and by the way lower courts hadsaid, he has no immunity, that
he's like anybody else that could becharged. And the president argued former president
argued, I think legitimately argued.That means any prosecutor can open up any

(01:55):
investigation charge any president at any timewith miss conduct, even though it has
never happened in the history of thiscountry. But we've never had a president
like Donald Trump. So it boilsdown to this, and that is that
there is immunity given to the presidentif during his presidency he has, within

(02:23):
his official capacity, has done anythingthat even remotely can be considered a criminal
act. Jack Smith is arguing hisfederal trial that Trump violated the law and
is being charged criminally and wants togo to trial on Trump's attempts to overturn

(02:44):
a legal election. Trump argued,it doesn't matter what I do. I
have immunity. And this is oneof the issues that was arguing from the
Supreme Court during the argument phase.When Atlanta Kagan says that means anything and
specific. Two things happened with sourHe his attorney. Now I'm going to
get a little bit more into theweeds. One is, yes, the

(03:06):
president. The only thing that youcan do with the president is impeach and
remove him from office and then afterthat charge him. But he is immune.
Well, what if he does thisa week before leaving office and there's
no time for an impeachment hearing ortheir or kicking him out of office.

(03:28):
Does that mean he's never going tobe charged? And Sower said that's right,
he could never be charged. Andshe came up with, gee,
what if he assassinates order the assassinationof arrival? Is he immune? And
Sower said, yeah, basically heis, which kind of floored everybody.
Now, the other thing that sourhis attorney said, there is such thing

(03:50):
as non official acts, even thoughTrump himself argued there's nothing that's non official.
No matter what he did, it'sall official, and even said,
yeah, there might be some stuffthat's non official. And so what the
court just did, Supreme Court justdid is say that a president has partial

(04:11):
immunity, but has immunity for officialacts and then kicks it to the lower
court and effectively says, you guys, figure out what's official and not official.
That's not what the Supreme Court does. They only decide on broad strokes.
And so now every time that thereis an allegation or a prosecutor charges

(04:32):
a president after being president, becausethey can't be charged during the presidency.
Afterwards, charge for criminal act thatthe president did, then he the president
is liable for any prosecutor at anytime to charge, and now the former
president has to defend. And Trumpfurther argues that stops a president from acting

(04:57):
because of fear of being prosecuted.You know, for example, Joe Biden
orders arms being sent to Israel orUkraine. Well, it can be argued
that that was a criminal act,and then it goes to trial, and
the trial determines, the court determinesthat that is official. Prosecutor says,

(05:19):
no, he's violated the law.Well that has to be tried. Is
it official or not official? Andhere's Trump's argument, anything I do can
be argued that it's not official,or that I'm allowed. That should not
be argued anything I do I haveimmunity. So he of course is going

(05:40):
to the furthest extent. But that'sthis president. Can you imagine a prosecutor
anywhere in the country charging a presidentfor anything dealing with foreign relations, anything
dealing with ordering the army, anythingdealing with asking for arms, anything dealing

(06:03):
with moving the air force around.And Trump is saying that, yeah,
there's a prosecutor that might be ableto do that, and therefore I have
immunity. That's an official act.But the problem is he goes even further.
He says, trying to overturn anelection of which he deems illegal unconstitutional,

(06:24):
I should have immunity from No otherpresident has ever tried this. By
the way, no other president hasever tried to overturn an election saying the
election is illegal. It's a wildcase. You're going to see case after
case while Trump is president. Ifhe wins again, you're going to see
a lot of stuff because he's goingto do a lot of things that he's

(06:46):
going to argue he is doing inhis official act. Here's one of the
fears, as he has said,he is going to arrest and prosecute every
member of the July sixth committee.I'm going to put them in jail.
The investigation of the June of theJanuary sixth investigation. I'm putting those congress

(07:12):
people in jail, and he's goingto argue that's an official act. I
can have them arrested. I canorder the Department of Justice to try them,
and that's official. Now, wouldany other president ever do that?
I can't imagine. Would Trump dothat? I guarantee he's going to do
that. He has said he's goingto do that. Boy, what a

(07:36):
decision by the court. What's official? What is an official act? That
is the question. We'll be backand I'm assuming we continue this or we're
going to do wealthy Americans, orwe're going to do shark attacks, or
we're going to do whatever the hellwe're going to do. This thing is
blown out. Do they have acase? Maybe an hour ago, Supreme

(08:00):
Court just handed its decision on theTrump immunity case, and we were awaiting
this. I think is one ofthe most important decisions the Court is going
to hold in a very long time, and this has to do with presidential
immunity. I've talked about it alittle bit about this in the last segment
or two. Do they have acase with Wayne? We're going to talk
about this, Wayne being I wouldnot say an expert in federal or constitutional

(08:24):
law, but certainly having dealt withthe criminal aspects in federal law for twenty
eight years. And this is basedon a federal violation of law. Jack
Smith, who is a special prosecutor, charge Donald Trump with violation of federal
law interfering with an election and interferingwith the continuing business of Congress, that

(08:52):
is, counting the votes and theElectoral College having voted that o'biden is had
won, and stopping the announcement ofJoe Biden as president. For some crazy
reason, the Trump organization, somehow, and it made no sense, decided

(09:13):
that if Mike Pence doesn't actually countthe votes and refuses to certify, the
election is not legal. It's notlegitimate. And guess who stays president if
the election is not legal? WhyDonald Trump stays president? And he argued

(09:35):
for another election, I think somewherein the midst of all this, and
if he lost that one, thesame thing, it would go through the
courts and he would effectively stay presidentfor well years and years and years.
That's what John Eastman said, Constitutionalattorney former Dean A. Chapman School of

(09:56):
Law. That was his idea,And so Jack Smith said, that's all
crapola. He can't stop the election, and him trying to stop the election
is a violation of federal law.And Trump argued that he has immunity from
being persecuted, well, certainly persecutedthe way he views it, but prosecuted

(10:18):
by special counsel Jack Smith, federalprosecutor. And the court just said,
yep, the president has limited immunity. What does that mean. Well,
if the president is engaging in officialacts, there is immunity. In unofficial
acts, there is no immunity.And the problem becomes, now who decides

(10:41):
what's official and unofficial? Why thecourts do? And what the Supreme Court
said is that you the courts getto define official and non official, which
means that every single case brought againstthe president by any prosecutor has to now

(11:03):
go to the court to determine officialityor not, and then that is appealed
and then it goes up. Andthat's per incident. Now the reality is
what and this is what Trump said. That means any prosecutor at any time
could effectively hold the president hostage becauseof fear that a decision would made would

(11:26):
end up landing the president court todetermine whether it was an official or non
official act. I can't imagine anyprosecutor arguing that whatever the pression, the
pressure the president does is non official. And here is what the prosecutors in
this case and the Jack Smith violationof federal law prosecution said even if the

(11:52):
president is immune, and this iswhat he's going to argue, even the
president is immune. Now it goesto the lower court to determine is what
he did official or not. That'swhat's happening now. Of course, the
trial will go on. We'll seeit in eight years unless Trump gets elected.
Then he stops at cold he tellsthe Justice Department to withdraw the case

(12:13):
completely with prejudice, means the caseis over, or he simply pardons himself,
which I don't think he's going todo. I think he's going to
just have the Justice Department drop thecase. So now the question is,
is trying to overturn an election basedon what he says is a fraudulent election

(12:37):
is at an official act? Andhe's going to argue that it is,
and that is going to be tried, and then that is going to be
appealed. That's why this thing issuch a mess because the court blew this
wide open to determine what's official andnot official. And we're going to go
to Wayne, do they have acase? In just a moment, bottom
of the hour or till we getoff the air at nine, and Wayne

(13:00):
and I going to discuss this.And this is no fun, but I
think it's limited just to Donald Trump. That's what I think is going to
save the day. I can't imagineany other president ever going this far or
doing this and arguing that an electionwas fraudulent when it wasn't, it was

(13:20):
illegal when it wasn't. And I'mbringing Wayne in, Wayne Resnik, who
we always do, do they havea case? And so I think we're
going to talk about this one Wayne, because it's so important, and I
want to have you bring in yourexpertise in criminal justice cases because that's exactly

(13:41):
what this is about. And sonumber one surprised at all this came down,
No, Because if you divorce thiscase from who it's about, it's
not that radical of a decision.No, it makes all the sense in
the world if you think about it. And that's exactly the point. You're

(14:03):
right if you divorce this case,because this really is a case excuse me
about Donald Trump and what he did. There's been no other president in the
history of the United States. Therewill be no other president that will question
an election that is legal, andas a matter of fact, the security
of this last election was the strongestwe've ever had in the history of this

(14:26):
country. And because he lost,he said it was fraudulent. So other
presidents, I think would argue hiscase. I'm arguing that what they do
are official acts and can't be prosecuted. I think it would be hard to

(14:46):
make an argument that you should beable to criminally prosecute a president for There's
three buckets that the Supreme Court madein this case. Right. There's the
content institutional powers that are exclusively thoseof a president, for which now they're
saying absolute immunity under no circumstances.Could you ever criminally prosecute a president for

(15:09):
those? Then the official acts,those are the things that are are about
things that he does not have exclusivepower about. The only things I can
think of off the top of myhead is when he pardons the turkeys or
when he I don't know, hostsa state dinner. Those are official acts,
but they're not his exclusive constitutional domain, and he has They said he

(15:33):
has presumptive immunity, meaning maybe youcould prosecute a president criminally for an official
act, but you would have toclear a really high hurdle that by criminalizing
what he did, you were notunnecessarily intruding on the on the power of
a president. Right on unofficial acts, there's no protection of any kind.

(15:58):
Now, I even Sour when hewas arguing in front of the Supreme Court,
agreed that there were acts that canbe considered non official. And he
is arguing that trying to overturn anelection of which I think sixty three judges
across the country upheld the election ofJoe Biden, that it wasn't fraudulent,

(16:22):
that it was legitimate trying to overturnthose by making calls to for example,
Raffensberger in Georgia saying find me votes, telling Mike Pence, do not count
the votes, do not announce.Well, then the argument of sending people
over to the capitol, whether hehad I think he had influence, but

(16:47):
I don't think he ordered the overrunningof the capitol. But certainly trying to
overturn the election, there is noissue he did that he is arguing that
it's an official act. Can yousee the saying yes, that's official.
Well, this is where the SupremeCourt and most courts they like to rule

(17:10):
and say here are the rules,and then they don't tell you how the
rules work, so you have tofigure out how the rules work. Is
it within a president's official role totry to make sure that elections are fair?
Sure? Okay, So if hesays these are things to do to
try to make sure the election wasfair, then why isn't it an official

(17:34):
act? Argue that's true. Butlet me extrapolate, and that is the
election is unfair and the votes shouldn'teven be counted because we know they're unfair
or they've been rigged, and stopsthe vote counting because he says it is
fraud done. Is that an officialact? Because he's arguing he was just

(17:56):
upholding the constitution? Is that anofficial act? Now you have to go
to court and the court has todecide. And do you think there's some
crazy ass judge in the South thatwould say it's totally official And then it
goes up to the Appeals Court,which is gonna, of course turn him

(18:18):
down. But that's each allegation andthat's the problem I have. And you're
right, this is only Donald Trumpwho would do something insane like try to
call a Secretary of State to say, don't count those votes, or find
me other votes or come up withsome just based on John Eastman, constitutional
lawyer, in quotes saying that,my if Mike Pence doesn't announce that President

(18:44):
Biden is the president, then Trumpstays the president basically forever. Who's gonna
say that's an official act other thana judge in the South. Well,
you keep saying a judge South,Then I'm thinking how many, Yeah,
how many judges in the South mightyou get to say to agree with him?

(19:07):
This? Just what this does isit creates the need to litigate every
little thing he does. That's whatwe've never had before with any other president.
And it's not that the Supreme Courtsaid you can do whatever you want.
That isn't what they said. Theysaid their rules about when you can
criminally prosecute a president. The problemis Donald Trump has a very broad view

(19:33):
of what he's entitled to do.And what happens is he does the thing
and then there's somebody tries to prosecutehim for it, and then you go
through now this process of trying toanalyze whether he can be prosecuted or not.
Up three levels to the Supreme Court, down again, up again,
down again. Oh yeah, itjust blows it wide open. I have

(19:56):
a question to ask you when wecome back, and you can answer it.
You know that. Also, theargument of his prosecution is that the
Department of Justice has been weaponized,and you have officials a Department of Justice
that are going after him specifically,totally weaponized, except in the case of
going after Hunter Biden and they gota federal conviction, then it's not so

(20:18):
much weaponization. When someone who's anenemy of Donald Trump gets nailed by the
same weaponized Department of Justice, that'sa little contradictory. I'd love to see
the explanation on that one. Inthe case of former President Trump, it
is particularly i think appropriate because itsays an official act that a president does,

(20:40):
the president is immune from prosecution.And the argument is what is official
And that's the issue that Wayne andI were bringing up, because now any
prosecution done by any prosecutor, thepresident can argue it's an official act.
By the way, only in theworld of Donald Trump. That's it It's

(21:00):
never happened before where a president isbeing prosecuted, even Nixon versus the US
that was not a criminal prosecution.They never got that far. It would
have probably gone that far, butgerald Ford stopped at cold so Wayne with
his pardon. So Waine, Ineed your opinion on this one. Number

(21:21):
one, what is the offshoot.Let's say that they go ahead and argue
official non official act in the courtsand it is deemed non official if Trump
wins the election, oh, evenbefore it goes beyond even before a jury
verdict. If Trump wins the election, one of two things happened. One

(21:41):
he pardons himself, which I don'tthink it's going to happen. He won't
have to bring that up. Ortwo, he as head of the Department
of Justice, as the head ofgovernment, can order that the prosecution stop
and orders that the case be dropped. Withdraws the case with prejudice, meaning

(22:06):
done, it can never be broughtup again. So tell me about the
possibility and the law on that onedismisses the case with prejudice. Well that's
let me let me. Let melet me try to answer your question by
asking you some questions. Because thisis largely in your wheelhouse. So would

(22:27):
you say, ordering your your attorneygeneral to order whichever US attorney it is,
to dismiss a case without prejudice?Is that an official act that a
president prejudice with prejudice with prejudice sorry, yeah, which means can be ever
brought up again without prejudice, youcan refile it. Yeah. I would
argue that's an official act. Thisis what a president does. A president

(22:51):
commutes, a president pardons. Apresident can say I'm going to go forward.
I disagree with my attorney general.I do not want that case prosecuted.
I think that would be considered anofficial act. I buy that,
all right, What do you think? Let me ask I think so let
me ask you this though. Doyou think that that doing that, which
is basically directing his underlings to dosomething. Do you think that's part of

(23:17):
the core constitutional powers that a presidenthas that Congress doesn't have. Yes.
Yes, because that's part of theexecutive branch, and it's something that the
president does uniquely and without the influenceof any other branch. I could be
turned. Well, the Supreme Courtcan deem something unconstitutional all day long,

(23:42):
because in reality, Supreme Court hasthe ultimate power in deciding which way either
branch of government goes. So yeah, now the question is Kenny pardon himself,
And by the way, you canpardon himself before it goes any place.
Richard Nixon was pardoned by Gerald Fordfor any trial and was pardoned for

(24:03):
anything he did, is currently doingand I think even anticipation, anticipation wise,
anything he does in relation to whathappened in Watergate, I think that's
what happened if memory serves. Yeah, that's right. So so first of
all, giving your answers, ifhe orders the cases to be dismissed with

(24:26):
prejudice against him, he has absoluteimmunity and you cannot criminally prosecute him for
anything for doing that. He's nowprotected based on this decision that came down
today. Now, trying to overturnan election that the courts have deemed is
a legitimate election, is that official? And I'm going to argue that is

(24:49):
not. This gets into and thisis going to come up now, especially
I think with Donald Trump, ifhe's reelected, it comes down to semantics.
You say, trying to overthrow anelection. Other people will say trying
to protect the integrity of an election. That was stolen through criminal behavior on

(25:17):
the part of the other side.Right. Let me throw this at you,
though, which I think makes myargument a little bit stronger, And
that is, it's not an argumentone side or the other. It's an
argument that Trump is making, whichhas been turned down by sixty three judges
in federal in appeals court. It'sI don't know even how many jurisdictions.

(25:41):
That's harder to argue that I'm overturningan election that was fraudulent. Yes,
but see, are you separating thecourt actions that he took from this extra
judicial stuff he did, like callingcalling the guy in Georgia and the fake

(26:02):
electors and those things. See,I don't think you could ever Would you
want to ever prosecute a president prosecutefor filing a case in court about something,
Yeah, if it is frivolous,if it has to do with trying
to cover up what every court hassaid is an act by omission, a

(26:23):
criminal act. Overturning an election,a federal election is a crime in of
itself, and it doesn't matter whodoes it. I think that's uh,
the That's how I would interpret allof those decisions. Uh, the District
Court judges as well as the AppealsCourt. So we could go on and

(26:44):
on with this. This doesn't stop, does it wane? Well, this
decision has not made anything easier.No, no, it hasn't uncomplicated anything.
Let me just ask you this onebig major question. Bottom line,
This decision total win for Trump,partial win for Trump, partial win.
But being Donald Trump individually, it'sa total win in terms of the Constitution

(27:12):
and the president, what the president'spower has, it's a partial win.
They parsed it, and I thinkthey were right. The problem is they
went beyond what Donald Trump did.They took the big picture, and with
Donald Trump, you cannot take thebig picture. It's just impossible. All
right, Wayne, Thanks, We'lltalk again next Monday and we'll get into

(27:33):
some cases. Do they have acase in the meantime, Wow, we're
at the end. And me Well, tomorrow morning five am. Heather Brooker
comes in at five o'clock with wakeup call, and Neil and I come
aboard at six And as I alwayssay, Kono and Ann never leave there

(27:53):
there twenty four hours a day.This is KFI Am six forty live everywhere
on the iHeartRadio app. You've beenlistening to the Bill Handle Show. Catch
My Show Monday through Friday six amto nine am, and anytime on demand
on the iHeartRadio app