On April 17, 2024, NYU School of Law hosted a panel of experts to discuss whether a former President enjoys immunity from criminal prosecution for conduct that allegedly involved official acts during his tenure in office. The Supreme Court is considering that question in United States v. Trump and will hear oral argument in the case on April 25.
The panel consisted of George Conway, a Contributing Writer at The Atlantic and Board President of the Society for the Rule of Law; Trevor Morrison the Eric M. and Laurie B. Roth Professor of Law and Dean Emeritus of NYU School of Law; and Kate Shaw a Professor of Law at the University of Pennsylvania Carey Law School. Andrew Weissmann, a Just Security Editor and Faculty Co-Director of the Reiss Center on Law and Security at NYU School of Law, moderated the discussion.
Show Notes:
On April 17, 2024, NYU School of Law hosted a panel of experts to discuss whether a former President enjoys immunity from criminal prosecution for conduct that allegedly involved official acts during his tenure in office. The Supreme Court is considering that question in United States v. Trump and will hear oral argument in the case on April 25.
The panel consisted of George Conway, a Contributing Writer at The Atlantic and Board President of the Society for the Rule of Law; Trevor Morrison the Eric M. and Laurie B. Roth Professor of Law and Dean Emeritus of NYU School of Law; and Kate Shaw a Professor of Law at the University of Pennsylvania Carey Law School. Andrew Weissmann, a Just Security Editor and Faculty Co-Director of the Reiss Center on Law and Security at NYU School of Law, moderated the discussion.
Show Notes:
Paras Shah: On April 17, 2024, NYU School of Law hosted a panel of experts to discuss whether a former President enjoys immunity from criminal prosecution for conduct that allegedly involved official acts during his tenure in office. The Supreme Court is also considering that question in United States v. Trump and will hear oral arguments in the case on April 25.
The panel consisted of George Conway, a Contributing Writer at The Atlantic and Board President of the Society for the Rule of Law; Trevor Morrison, the Eric M. and Laurie B. Roth Professor of Law and Dean Emeritus of NYU School of Law; and Kate Shaw, a Professor of Law at the University of Pennsylvania Carey Law School. Andrew Weissmann, a Just Security Editor and Faculty Co-Director of the Reiss Center on Law and Security at NYU School of Law, moderated the discussion.
Andrew Weissmann: It's nice to see so many students here. So, welcome to the NYU Law Forum. I'm Andrew Weissmann, and we are going to discuss today something that is a very hot topic, because a week from tomorrow, the 25th, the last day of the Supreme Court's term, there will be an argument on presidential immunity. And we will get into what exactly the background of the law is, what legal issues are being posed, and have some good hypotheticals. And then we'll hopefully have some time for questions from you all. I think you probably all know our distinguished panelists. It's a perfect panel to address this.
So, starting to my left is George Conway, who I think of — I'm going to really date myself, as the George Plimpton of our generation.
George Conway: But that's what Google is for.
Andrew: Yes, exactly. And now you know what my students have to suffer with, where I make jokes, and I have to announce that it’s a joke in order to get any sort of response.
George: Same.
Andrew: George is longtime partner at Wachtell. He is a contributor to The Atlantic, and for today's purposes, also has some unique background on presidential immunity, having worked on a case involving Bill Clinton and civil liability with respect to a sitting president for conduct prior to when the president was the president.
And to his left is Kate Shaw, who is a professor at the University of Pennsylvania, and is also, as of you may know, a co-host of an incredibly great podcast that I can't recommend highly enough, called Strict Scrutiny with Leah Litman, and also our own Melissa Murray. And if you are trying to follow what is going on in the Supreme Court, there is no better way than to listen to the three of them. And you have the unique ability, I think, since you worked in an administration where there seemed to be no civil or criminal issues with respect to the President. You have not been in a situation of either bringing or defending a criminal or civil case against a president. So, you have that against you in your background.
Kate Shaw: It was not because Trevor and I lawyered Barack Obama's presidency so well. He was just sort of always by the books and adhered to the law in every moment.
Trevor Morrison: That's our position, and we're sticking to that.
Kate: Exactly.
Andrew: And then certainly, this is somebody who definitely needs no introduction to this crowd, the former dean Trevor Morrison, who also has a unique background because he was involved in the recent civil cases that were brought by E. Jean Carroll in connection with conduct by a — it's for the civil case conduct of a former president. So, all of that is going to be relevant to the issue that's before the court, which has to do with a federal criminal case — a federal one, not a state one — with respect to conduct of a former president relating to activity while that person was in office.
So, maybe that’s a way to begin the discussion. And George, can I ask you given —especially since your background, such as the Bill Clinton case — if you could maybe set the table with respect to, where is the law with respect to, sort of, civil immunity, with respect to either former or current presidents, and whether it relates to conduct in office or out of office?
George: It's really quite simple. I mean, it derives from a long line of absolute immunity cases in which offices, various sorts, were held not to be liable for their conduct, even if it caused some harm. And that involved judges. There was a long line of Supreme Court authority, but the cases were all civil cases. And it came to the Nixon era. Nixon was sued by, I think it was like a former Air Force officer named Fitzgerald, and I forgot what exactly his beef was, but he alleged that Nixon had done him wrong by causing him, I think, to lose his commission. And he brought a civil case against Richard Nixon, and long story short, it went up to the Supreme Court, and the Supreme Court ruled by only a five to four margin in favor of then-former President Nixon.
And it went through all these civil liability cases and derived, distilled, from those cases, basically, a principle that it kind of beefed up for the president. And the rationale was, well, the president does things that affect a lot of people, because he's president of the United States. He's got so much power, he's got to do all these things under the law. And if you say that somebody out there who is harmed by his alleged — could be valid, could be not valid — failure to comply with the law, and you say that he's civilly liable, I mean, personally liable, what president is going to be able to do his job? And from that, they basically derived the standard for presidential civil immunity for conduct allegedly violative of law and harming a civil plaintiff. And the standard is, that if the conduct that is alleged is within — and here are the magic words — outer perimeter of the president's official responsibilities, then there can be no claim. The claim should be dismissed.
And that was the law, and that's been the law since the 1970s when Nixon v. Fitzgerald was decided. Interestingly, it was only a five to four decision, but it's now, you know, accepted law. And the next time it ever came up was in the Paula Jones case. And that was a case in which President Clinton was alleged to have, while he was governor of Arkansas, before he had run for President, had a state trooper bring a woman up to his hotel room that the state, for some reason, had rented at the Excelsior hotel in Little Rock, Arkansas, and the state trooper brought the woman up to the hotel room, and then he proposition to her in decent fashion, the allegation was. And the argument that Clinton's lawyers made, supported by the Justice Department, was essentially that, well, it was first styled, when it was in the district court, as an immunity argument, but it later became an argument saying, well, the idea behind Fitzgerald is that, it's not just about the liability, it’s just, we can't take up the time of the president with personal litigation. And again, the problem with that is, it's not really consistent with Fitzgerald, because Fitzgerald was talking about official immunity for official acts. And there were instances in the past of presidents being sued for conduct that had nothing to do with their office, or preceded their assumption of the presidency.
I think Truman had been sued. I think John Kennedy had been sued. There was even a criminal case, at one point, where I think Ulysses S. Grant was speeding down Pennsylvania Avenue in his carriage and a policeman arrested him. We'll probably get to that later. But basically, in Clinton v. Jones, Clinton lost eight nothing, or was it, nine nothing. And there was one concurring opinion where Justice Breyer said some things that I frankly don't understand.
But that was the state of the law. That's the state of law in civil liability.
Andrew: So, Kate, maybe now take us to criminal liability. So, why doesn’t the court just say that’s the standard in civil cases? How do they differentiate? Where are we in terms of the state of the law, and then maybe, also, particularly with this case, what is the record that is before the Supreme Court in terms of both what Tanya Chutkan, the district court, and then the DC Circuit held? So, sort of, why is this a big deal? Why isn't what George said, sort of, the governing position in the criminal context?
Kate: You know, I might actually flip the kind of, like, orientation of that question and say, you know, what Trump is asking for is an unprecedented extension or expansion of the absolute immunity rule of Fitzgerald to the criminal context, which is something no court has ever accepted. And I think everything in our history and constitutional structure and, you know, discussions, such as they are in the cases and executive branch practice and things that Congress has said, all of that seems very clearly to render the argument that Fitzgerald should just apply wholesale, create absolute immunity from criminal liability for former presidents forever, is totally indefensible.
So, I think that the burden, in terms of sort of how we orient or frame the debate, is just on Trump to make the case that this purely civil doctrine, that, you know, is broad in certain respects, or is powerful and that it's an absolute immunity — but I actually think this outer perimeter language is important, because I think it does suggest that there is a boundary beyond which, you know, even civil liability is possible for conduct taken, you know, by someone who's a president, so long as they are acting beyond the outer perimeter of their official duties. But that's obviously not we're talking about here. We're talking about the possibility of criminal liability for an ex-president. and the argument that he is making is that everything that he did, while, you know, plausibly presidenting is subject to the same rule of absolute immunity as the sort of civil rule that the court announced in this divided case and Fitzgerald.
So, in terms of how he's making the argument for the extension or expansion, I mean, I think, a couple of things. One, he is arguing that no president has ever been criminally prosecuted, and so that suggests that it's somehow improper or constitutionally impermissible. He is arguing that allowing for a criminal prosecution like this would shield presidents from being able to fully and energetically exercise the office of the presidency. He is arguing somehow — I would love to get the very smart people on this panel to help me understand what he's really, the Marbury v. Madison argument that he is making — he is somehow suggesting that Marburyrenders all of the president's official acts outside of the ability of courts to examine them. And there is language to that effect in Marbury, but I think it's completely distorted in the way it's represented in the briefs. And I think, finally, that the Constitution has a mechanism for impeachment and removal, and that only if a president is impeached and convicted and removed from office, only after those things happen, can there be a criminal prosecution, but, you know, against someone who was the president when the conduct of issue occurred.
And maybe just, like, to briefly say a couple of things about these. You know, I do think that there's some really powerful historians’ briefs, amicus briefs filed in the case. You know, there is, you know, that yes, there is no example of prosecutions of previous sitting presidents or ex-presidents for conduct taken while they were sitting. But everything insofar as history matters. It's entirely clear that sort of founding era assumptions about presidents and accountability make crystal clear that it would be unthinkable for the court to announce this principle of absolute immunity from criminal liability. So, I do think history is very powerfully on the side of Jack Smith and the prosecution, and not on the side of the president or the ex-president.
On Marbury, I think that accepting this idea that Marbury says that presidential conduct is not judicially examinable would throw into question everything from like Marbury itself, which does say some judicial executive conduct is examinable, even though in that case, right, the court finds it doesn't have jurisdiction, but also cases like Youngstown, United States v. Nixon, like many, many other cases. And so, I just don't think there's anything to support that proposition. The court has never — not only has never embraced the argument that Trump is making, but I don't think has ever suggested there's any analogous criminal immunity, like the civil immunity from Fitzgerald. And insofar as there are mentions, you know, in Nixon v. Fitzgerald itself, there's a suggestion — we're talking narrowly about civil cases, there is a lesser public interest in actions for civil damages, than, for example, in criminal prosecution. Fitzgerald itself, I think, seems to distance itself from, you know, the possibility of its direct application in a criminal context. You know, great John Marshall and the Aaron Burr case suggests that presidents can be compelled in some circumstances by courts to respond to criminal subpoenas. Obviously, the court in the United States v. Nixon case compels the production of the Oval Office tapes by the then sitting presidents.
And insofar as you think that not just history, and not just the things the Supreme Court has said or done matter, but things like executive branch practice matters, I think that, you know, Trevor is obviously the expert on this — but Office of LLC opinions and also just the conduct of former presidents, I think, make really clear that everybody, or that nobody believed that the argument that Trump is making and has repeated enough that it comes to seem like a reasonable argument, but I don't think repetition makes something reasonable. That, you know, no one assumed that there was an absolute protection from criminal liability for everything that a president did during his time in office. And I also think maybe, you know, Gerald Ford's issuance of a full pardon to former President Nixon, you know, had as a presupposition that otherwise, there would be the prospect of a criminal prosecution, otherwise, why a pardon would be necessary at all, I think, is a real question.
And maybe I'll stop in one moment and say that, to the extent that there's other precedent that matters. I dug up McConnell on voting to acquit Trump, right, in the second impeachment trial, he says, “We have a criminal justice system in this country. We have civil litigation and former presidents are not immune from being held accountable by either one.” And that's not to say that answers the constitutional question. But I do think that insofar as we think the fabric of constitutional law is the product of all these things, I think they make really clear that there's nothing sort of substantively to support the argument that Trump is making. Sorry, I went on for a long time.
Andrew: Yeah, totally fine, too. For the Supreme Court, their record before it is, they have obviously the allegations in the indictment. Normally, the court is supposed to accept this as true for this purpose. It has Tanya Chutkan’s decision, which is sort of an absolutist view that there simply isn't criminal immunity in this setting for a federal prosecution of a former president. And then that went to the circuit that affirmed her in slightly different reasoning. And so, I have a sort of quick question to all three of you that I'm going to borrow from Trevor's framework in his piece for Lawfare, and then turn it over to him to explain sort of his reasoning. But if you take this, sort of, three views, which are, do people agree, on the panel, with Judge Chutkan in that there simply is not criminal immunity in this circumstance of dealing with a former president for federal prosecution, that sort of one absolutist view? The other is that there always. There’s sort of Nixon v. Fitzgerald. And the other is, maybe sometimes. And so, George, where are you? Just like a quick round — is it sometimes, never, or always?
George: Very rarely. I mean, I do think there would be some extreme circumstance where, if Congress passed a law that was directed to the president that actually did prohibit him or her from exercising authority that is uniquely presidential, yeah, that would be — and I think, my thinking about this is pretty similar to Trevor’s. I mean, essentially, you've got Youngstown. You'll explain the three levels of Youngstown, and the lowest ebb is when the president does something that is contrary to the will of Congress. Well, what President Trump did here was even — it was in basement, it did even reached the lowest. It was not only something — he was doing something that Congress couldn't authorize him to do, which is to violate the provision that says a president's president for four years.
Andrew: Kate, do you have a view?
Kate: I want to sort of mostly cede my time to Trevor. I think he has a very developed view on this. I think that essentially, that an absolute immunity argument that applies to all official acts, all acts taken within the outer perimeter is indefensible. As I was saying previously, I don’t I wouldn't rule out the possibility — maybe this sounds non-committal — Ut as George was just saying, there may be tiny pockets of presidential authority, where I don't know if I would even think about it in immunity terms as much as a substantive defense of constitutionality rather than a front-end in unity, but maybe very narrow, but, sort of like pockets of unique presidential authority might be difficult constitutionally to reach using an ordinary criminal statute, or a criminal statute passed specifically to target the president. But I certainly don't think the court needs to reach any of that here.
Andrew: Trevor, so you have written about this — the sort of, always, never, and maybe sometimes. But I think George's camp doesn't apply here.
Trevor Morrison: Yeah, that part's clear. First of all, hello. Glad to be with you. Just to be clear about what Andrew was just asking us, I think, I think we are all in agreement that there is no immunity in this case. And even if immunity is the wrong term, there is no constitutional bar to the prosecution proceeding in this case on the allegations that have been made in the indictment. The question, then, kind of beyond the particular allegations in this case — one way to frame it, which would bracket Kate's point about whether immunity is the right way to conceptualize a limitation — is to ask, are there any constitutional limitations flowing from the fact of the presidency and the authority of the presidency and the role of the president? Any constitutional limitations on the prosecutability of a president for conduct taken in his official capacity as president? I think that's what official conduct means to refer to. Let me just drop a footnote there.
That's the question, you know, when, if ever, is there immunity from criminal charges for conduct taken in official capacity, is basically the question presented in this case. There's a really important sub question there, which is, how much of the allegations in the indictment involve official presidential action, as opposed to, say, conduct taken by then-President Trump in his capacity as candidate for re-election. The DC Circuit has an opinion in a case called Blassingame, which involves an assertion of Nixon v. Fitzgerald civil immunity in a civil suit. He's being sued for January 6-related activity as well as being prosecuted. And the court there, Judge Srinivasan wrote I thought quite a thoughtful opinion distinctly making this point and saying, it may be hard in some cases to figure out the difference. But it is conceptually possible for a sitting president to take actions in his capacity as candidate, not president. And you know, federal election law assumes the possibility of drawing that distinction. And that would be an example for, perhaps, even in the Nixon v. Fitzgerald context of something happening beyond the outer perimeter of his official responsibility.
So that is not part of the case. This criminal case, as it now comes before the Supreme Court, which is to say, even if Trump won on his outlandish argument of immunity, it will remain to be determined whether any of the allegations in the indictment allege conduct that's not official acts by the president and instead just say conduct taken by him in his capacity as candidate. And however the court rules, that that may be something that has to be sorted out below.
Okay, that's all through and clear. And what do I think on this? The answer to the question I posed — does the Constitution impose any limits on the prosecutability of a president for his official conduct? — my answer is yes. And I think most people's answer is yes. And I think most people would say, they're very, very rare, as George said, and the framework that I've found useful —there are a lot of my Con Law students here, I should call on one of you to recite all of this.
It comes from Justice Jackson's famous concurring opinion in the Youngstown steel seizure case where he said a couple of interesting things. One is, and he said this in the early 1950s, that a justice or judge coming to questions of executive power for the first time may be surprised by how few useful judicial precedents that are on the matter, and, you know, 80 years later, that's still by and large, true. So, one has to try and, you know, come up with positions with a relative poverty of on-point judicial decisions. But the basic framework he laid out there is to say, when you want to figure out what authority the president has, what really matters is what has Congress done. If the president acts consistently with what Congress has authorized him to do, and legislation, then his power is as great as it could be, because he has all authority the Constitution gives him and all authority that Congress has given him in that statute. If he acts in the face of congressional silence, like Congress hasn't said anything one way or the other, he acts in a zone of twilight, where it's going to be hard to draw clear lines, because perhaps Congress could lawfully prohibit him from taking the action. But perhaps he can act as long as Congress hasn't told him he may not do it. And then if he acts in the face of congressional prohibition, his power is at its lowest ebb, which means, presumably, that most of the time, the president may not act contrary to congressional prohibition.
But we know, from recent cases, that there are some instances where Congress has tried to limit the president's action, and it has done so unlawfully. The most recent example before the Supreme Court is the Zivotofsky case, which involved a statute signed into law by President Bush, but he issued a signing statement basically saying, I'm going to ignore the part that I think is unconstitutional. That gave parents, U.S. citizen parents of a child born in Jerusalem the option of insisting that the passport of the child identify the place of birth as Israel. Now, the practice of the United States for decades up until then had been, if the person was born in Jerusalem, it would list as their place of birth Jerusalem, not Israel, in order to avoid taking a position on the question of whether Jerusalem is part of Israel. And the United States had maintained a studied ambiguity on that point for many years. In Zivotofsky, his parents sued saying we wanted to say Israel. The executive branch said no. That issue ultimately was decided by the court with a holding that the statute impermissibly intruded on the president's exclusive power to recognize foreign governments, including the territory that they represent. So, if Congress were to criminalize the president's failure to, you know, list Israel as the place of birth, that statute would be just as unconstitutional as the one that was trying to force that action in the first place. I regard that as an illustration that there are some domains where the president should be deemed immune from criminal prosecution. But it would be possible to say that that's not the right way to use the immunity term. What we're really talking about there is a substantively unconstitutional statute.
Sometimes we use immunity to refer to things where the person being sued or prosecuted has the lawful authority to take the action they can do, and the authority they have trumps the law that’s — been no pun — intended to be used against them. That's the conception in a related context called supremacy clause immunity, which involves the immunity of federal officers from certain kinds of state criminal prosecutions or civil suits. But sometimes, as in qualified officer immunity, we're using immunity not to talk about the substantive unconstitutionality of the underlying law you're trying to enforce against the person, but to say, even if they acted unlawfully, they are immune from this penalty in the suit. So, there's a kind of nomenclature debate there.
But to me, the big point is this. And this is why I bother to try and write that little essay in Lawfare laying out my thinking on this. Trump's litigation strategy is to tell the Supreme Court, unless you find me immune in this case, you will have no ability to protect presidents from criminal prosecution — maybe from him — from criminal prosecution when they act in core fulfillment of their constitutional responsibilities. He's saying, it's just, it's all or nothing. And it isn't all or nothing. And actually, Jack Smith's brief, the Special Counsel, doesn't sign up to the limits that I've just described as immunity, but he enumerates a bunch of them. One is a kind of as applied constitutional defense against prosecution if a president is being prosecuted for conduct taken up the core of his constitutional responsibility. Another is a kind of tactic of statutory interpretation that says that if a prosecution would implicate core presidential responsibilities, we should assume Congress didn't mean the statute to cover the president, unless it said so explicitly, so-called clear statement rule. Those things for me all come to the same place. The point is, I think, to convince the members of the court, who are concerned about the legitimate prerogatives of the executive branch, that those prerogatives can be protected without having to distort immunity doctrine to cover what Trump is alleged to have done in this case.
Andrew: So, I'm going to give you a hypothetical to sort of flesh out — even though it's clearly not this case — that sort of where the line is. So, let's assume that Congress tries to pass a criminal statute. And let's leave aside for the moment Kate's point, which I tend to agree that whether you call it immunity, or whether it's just, you don't have the authority to do this, it would be struck down as an unconstitutional invasion into the separation of powers, whichever it is, and let's say Congress says, you know what, we now are — this obviously could never happen, but that's a joke — we think that supporting Ukraine is anathema to the United States’ public interest. We think that any support of Ukraine is going to be — we’ll analogize, to what we have done in the terrorism contexts, where we cannot support terrorist groups. No funding can go to Ukraine. It is now a crime for anyone to authorize that. And the president then goes ahead and says, you know what, this is uniquely something that was in my province. And then — that's just to make that more analogous — he's now out of office, and gets criminally prosecuted for violating that criminal statute. Is that an area under the sort of the Justice Jackson tripartite rule? Is that something that would be uniquely within his province? And so, there should be some point —whether you call it presidential immunity, or it's just not a lawful statute as applied to the resident.
Trevor: So, I think the straight up answer under the doctrine we have, the limited judicial precedent we have, and frankly, all of the Office of Legal Counsel precedent, is we don't know. There’s a mistake made — my con law students know about this mistake, so they know not to make it, but here's a reminder before the exam — there are many, many Office of Legal Counsel opinions saying the president has the inherent authority under Article Two, principally under his authority as Commander in Chief, to direct the use of the military and military power, even in the absence of congressional authorization, even though it's Congress's power to declare war, not the president's. But all of those cases, not some, not most, all of them are situations where Congress has not by statute prohibited the military action in question. There's a mistake made by some executive power maximalist scholars, some of whom have occupied LLC at various points to say that, well, if the president had the power to do it when Congress had said nothing — in other words, if the president had the power to do it in that zone of twilight in the Youngstown framework — then that means the president can do it at the lowest ebb too, even if Congress tries to prohibited by statute. That's a literal category mistake.
The whole point of this framework that Jackson gave us is to see the very consequential difference between presidential action in the face of congressional inaction or silence and presidential action contrary to statute. So, the question would be, what, if any, of the president's commander in chief power is immune to congressional regulation? And there are all kinds of examples we can ask. This hypothetical you've posed is much harder than, say, the SEAL Team Six hypothetical posed by one of the judges on the DC circuit panel. Or for that matter, even the Anwar al-Awlaki question, could President Obama have been prosecuted for ordering a drone strike on a US citizen? In that circumstance, the Office of Legal Counsel took the position, among other things, that the federal criminal statute at issue did not apply because of something called a public authority exception, another way of protecting executive prerogatives without having to use a doctrine of immunity, but also, that this action was taken not in the face of congressional prohibition, but with congressional authorization in the form of the 2001 Authorization to Use Military Force. Andrew’s hypothetical is challenging because we're confronting this lowest ebb situation.
George: But also, it's challenging, because the way you phrase it, I think — I'd have to go back to a transcript, which we won't have — you phrase it in terms of the spending power, which is actually Congress's power, right?
Trevor: Yeah. So, I think it’s even greater. The idea that the president could, I mean, misappropriate, or take money out of the Treasury that was allocated for one purpose or not allocated for the purpose that is prohibited by the Weissman Act. But you could, but you could, you could hypothesize just to play, devil’s devil's advocate. So, suppose there's a general prohibition on use of those funds to, you know, to undertake some particular military operation, in part because Congress does not think that foe is a true enemy of the United States. And then it turns out that they conduct an attack directly on the United States. Could funds be used to repel the attack? I think probably yes.
Andrew: Plus, they’re ways to get around the funding issue, which the current president has actually done to try and use already appropriated funds in ways that, to assist, so, and that would be a technical violation, because there would be funds going — in the same way that in the terrorist case, that there the law is incredibly expansive. So again, it was trying to be sort of very. It's such a great position to be able to ask, like, hypotheticals of these folks. So, and then, by the way, we're gonna leave time so you can ask your own very difficult hypotheticals, which are just shortly before exams, so be careful.
So, Kate, I have a similar hypothetical, but this is one that is very dear to my heart. So before coming here, this is like everyone always litigates to their last case, I looked at the so-called Mueller report. So, one of the issues that was examined by Robert Mueller was the question of a president who — and this is going to be, I'm going to somewhat change the facts — but a President who fires an FBI Director and assumes that that is being done for the purpose of protecting — and this is where the change is — protecting the president himself, so that you have the president having the power. There's no question that the firing is something that the president has the power to do. The FBI Director reports to the Deputy and Attorney General in the Department of Justice and is appointed by the president and can be fired. But the twist is, that it is being done for the improper purpose, and assume that, you know, in this situation for this hypothetical, that there's dispositive evidence that it's being done for the corrupt purpose of insulating the president from a criminal investigation. And so, you can obviously change the hypotheticals in various ways. And I thought a quote from something that is in the Mueller report, for those people interested, it’s at page 169, and this, it goes on and there's more on page 174, which I'm going to crib from.
But the reason it's particularly interesting is that one of the members of the Mueller team was Michael Dreeben, longtime member of the Solicitor General's office, and he has worked on Special Counsel Mueller’s team. He is also now working for Special Counsel Jack Smith, and I'm sure has had a very strong hand and solid record. He is going to be arguing this, and so, his reasoning is actually something that you can read not just in the briefs that are in the Supreme Court, but you actually have a preview, pretty, very detailed one as to how he thought about this hypothetical, where this is the quote from — without saying that he specifically wrote this statement, “Applying the court’s framework for analysis, we concluded that Congress can validly regulate the president's exercise of official duties to prohibit actions motivated by a corrupt intent to obstruct justice.
And one of the things that, which Trevor will like to hear, is that he did think that there may be a difference between firing of an a subordinate officer, an FBI Director, as opposed to a cabinet level official, where he thought that might go too far in the balancing as to whether that would be something that you could do even if done corruptly. And finally, there's a wonderful quote from Samuel Johnson that he includes, where one of the major points is that the president is bound to uphold the law, and to faithfully execute it, and quotes from Johnson's own dictionary about what it means to be faithful to the rule of law.
So, in that situation, which is one that was actually confronted by this country, more or less, in terms of a president being able to take action where the distinguishing feature is the intent behind the action — not so much the action itself, that the actus reus. I mean, how does the, how should the court be thinking about that issue? And that's when I really can see coming up with the argument eight days from now.
Kate: Well, I don't have pages 169-174 of the Muller report committed to memory. So, I would have to, I mean, so you said that following this reasoning, I'm curious what court decision that that passage or those passages or even based on, but I think it's an important hypo, that, you know, goes to the, a little bit of Zivotofsky and the recognition issue, like, so the president, if you think that there are, you know, a small set of powers that are kind of core Article Two powers, and the recognition power, and maybe the pardon power, and maybe the unenumerated, but apparently really important, removal power. Though, that's a list that may not be exhaustive, but, you know, the court takes extremely seriously this expansive power the president must possess under Article Two to control subordinates, which the court thinks the power to remove is a really important kind of enabler of that kind of actual power to direct the execution of the law.
And so, you know, I think if you took this kind of set of exceptions really far, then maybe the president in the exercise of the removal power enjoys either immunity or any substantive, you know, limitation of that power in the form of a statute that might be applied to make criminal some exercise of the removal power might be suspect, however you frame it. That doesn't seem right to me. I think that the application of a, generally, the use of a generally applicable criminal statute against a president who exercises for unlawful reasons a power that, for normal, we know — for lots of reasons, good reasons, bad reasons — and I just decided, I don't, you know, I don't like the look of you. Your shoes bothered me, like, the president can remove people for all kinds of reasons. I think we all pretty much agree on that. I don't, I guess I don't think I'm not sure that the FBI Director and the Attorney General, there's any difference the Supreme Court recognized as to the two. I actually kind of think of a quirky view, that because there's a term, you know, attached to the FBI position, then maybe that actually is different. But everybody seems to agree that it's principal officer, and the president has to have, you know, kind of authority to remove for good reasons, bad reasons, any reason.
But that doesn't render inapplicable a criminal statute. And yet, and yet, let me maybe say one more thing that's going to sound hedgy, which is that I think that a prosecutor would proceed really carefully, and a court would proceed really carefully, in making, you know, whether it's a formal use of, you know, not to require a clear statement, right? An explicit statement. Marty Lederman has a good brief, a good amicus brief about this, that says, it can't possibly be right that Congress has to explicitly say with every criminal statute, and this applies to the president, in order for a court to understand it applies to the president. That's totally unworkable and unrealistic. So maybe there are some statutes that under some circumstances, there's reason to worry about the application, when there's a real core exercise of Article 2 power at issue. But I actually think the corrupt removal to protect oneself, and to obstruct justice, maybe for you know, after taking a monetary bribe, like those kinds of hypothetical applications of an obstruction of justice or related statute to presidential removal, I don't think sort of crosses the line into this area that maybe we all agree to some degree might exist and be insulated from prosecution or maybe be subject to some understanding of immunity.
Andrew: Georgia and Trevor, you look like you're gonna jump in.
George: You know, I agree. And I look at the easy case, the case that makes it, that analysis, easy to me is, suppose it were bribery, right? What if the president — president has the removal power, no question about it — but what if, you know, the president had some civil litigation that didn't involve his office, and he had an 83 or 88 million dollar judgment against him, and he needed a bond to appeal. And somebody said, well, if you fire this person, I'll post the bond for you. He's got to go to jail for that, right? Yeah. Okay.
Trevor: So, I think I'm in full agreement with what both Kate and George have just said. The bribery, for the hypothetical, I think, is helpful. You can think of them in a lots of different contexts. But let's think of it in connection with a power that is surely in that list, where the president wins in Youngstown at the lowest ebb, the pardon power, right? And so, suppose a president pardoned someone because and only because they were bribed to do so. Took a bribe, issued the pardon. They’re accusations that President Clinton did that at the end of the Clinton ministration. And I don't mean to be opining on the soundness of that accusation. But just imagine.
So, are we faced with a choice that, wow, in order to uphold this idea that the pardon power is exclusively the president's, we'd have to say there's either an immunity or a substantive constitutional impediment to prosecute him for taking the bribe? I think the answer is no. I think you can disaggregate the things. And I think my view would be, you can do it that same way for removal. What do I mean by disaggregate? On the removal hypo or on the pardon hypo, I think the removal stands. And I think the pardon stands. But if it was done for a corrupt reason, if it was done illegally, you know, the whole thing about, like, laws like bribery, and extortion and those kinds of things, is often what is made illegal, is the doing of two things together, where each one of them could be done on their own lawfully. It's the connecting of the two things. And so, we shouldn't be surprised that the underlying action, the pardon itself, not only lawful — exclusively the president's decision to make, just like the removal — so I think, on my understanding, I think the FBI Director remains out of office, and the pardon remains valid, but the president is prosecutable.
And now, just one further point here. Another way in which Trump's briefs in this case, I think are way over — Marty Lederman did do a good job here, although I don't completely agree with his account that there is no such thing as a clear statement rule, sorry, that's a big aside — Trump, what Trump does is, briefly this question is, is to claim that this notion of a clear statement rule, wholly aside from constitutional immunity or anything, Congress just can't regulate the president with respect to official conduct, unless it says, and we mean, the president too and every statute. The Justice Department, which has articulated a clear statement rule, has never articulated it that way. The idea is not that every statute, no matter how it would touch on the president has to be explicit that the president is covered. It's only if application of the statute to the president would implicate core constitutional responsibilities of the president. And I think the way to draw the distinction here and allow the bribery statute to apply, or allow the obstruction of justice statute, I think, that's hanging in the back of Andrew’s hypothetical to apply, is to distinguish between the discharge of his core responsibility and the possessing of a prerogative to decide whether to remove this officer and the obstruction of justice, the corrupt purpose.
George: And that sounds kind of like what the Mueller report said, didn’t it?
Andrew: I think it didn't go quite that far. Well, so let me push back, Trevor. I wanted to ask you a question about if you let stand the removal, essentially, what you're saying is, that the president in that situation can be prosecuted for obstruction, but they basically can get — it certainly maximizes their ability to not be prosecuted for the substantive offense that they're being investigated for? And so, is that really the way that presidential immunity should work as a doctrine where that's the result? You could analogize this to sort of getting rid of, you know, the Saturday massacre?
Trevor: Yeah, I think, I think there are lots of circumstances in the law, where ex post, our ability to, like, restore the status quo is limited. And it's one reason why we speak of the criminal law as having, we hope, an ex ante deterrent effect. So, to take a preposterously superficial hypothetical, you know, holding someone criminally liable for homicide can't bring the person back to life. And so too here, I think the fact that he might have “gotten away with it” may be a feature of the fact that the President does possess core unregulable powers. And the hope would be that knowing that the president is subject to criminal prosecution for taking bribes, or for obstruction of justice, would cause him not to do that. But I do think the consequence of saying, for example, that the pardon power is exclusively the president's is that the pardon itself can't be undone.
Andrew: So, I wanted to turn something that Trevor, you alluded to, but as George has asked you about, which is, sort of, one of the ways that something could happen in the Supreme Court that leads to further delay, which is that the court comes up with a rule that isn't — there's absolute immunity in all situations — but says there's actually a factual call here with respect to what is within the official duty, the outer perimeter of the official duties. And we may all think that seems laughable, but there hasn't really been factfinding on this. And we're going to look at the DC Circuit Blassingame case. And we're going to send this back to the district court for a fact finding, and all of that factfinding can be reviewed, because it's in this immunity context, prior to trial. In other words, the normal rule that you wait till the end of the case for appeals, that may not apply, so that we're going to have a hearing, and then we're going to have appeals, and that means, for those people thinking that there's going to be the sliver of a chance, because the moon and stars and sun, although maybe I shouldn't say that in light of the eclipse, but there will be — that's over and it's not going to happen for another like millennium. There isn't going to be a DC trial before the general election.
So, walk us through, sort of, whether you think that's possible and what you think could happen, and that if the court goes down that road, should the court be bound by what's in the normal rule, which is in the indictment, or should there be an actual hearing? And is that necessarily so bad if we can't have a trial, if we end up with a hearing before Judge Chutkan on this issue? George, you want to take that?
George: You know, I don't know what the inquiry would be. I don't know what the remand would be for. I mean, it's a, it strikes me as a question of law, not a question of fact, is what, you know, if it's an outer perimeter standard. And I just don't see, I mean, I understand the practicalities in terms, I mean, why they did it in the civil case, because that is the standard in the civil case. But I don't understand how it could possibly work in the criminal context.
Trevor: For whatever it's worth, I think I agree with George, that the remand that could happen, that would slow things down — so essentially, it’s reminding us again, what is in the question presented before the Supreme Court on what is not — if Trump wins on the issue before the Supreme Court, so that his position is that a president is immune from criminal prosecution for any conduct taken within his official capacity, if he wins that, then there is going to have to be a remand and I think a pretrial hearing to try and sort out on the allegations in the indictment which of those actions are official conduct, and which were not official contact. That’s sort of the Blassingame thing.
I think the only way he wins on that issue before the Supreme Court, though, is if a majority of the court becomes convinced that the only way to protect the legitimate constitutional prerogatives of the president is to hand Trump a win in this case, and the court should not take that bait. So, there are lots of ways for Jack Smith to win. If he wins on any of them, there's, I don't think there will be a hearing — I agree with George, I don't think there'll be something to sort out pretrial on remand.
Kate: But it is, I mean, I also I think, obviously, the court should not, and I think most likely the court will not, hand Trump that kind of victory. But I do think the question that grows out of this, I think, maybe, dawning awareness that folks have that actually, it doesn't necessarily completely end the proceedings if he does win, because the more you dig into the allegations, not, you know, not just in light of the Blassingame case, but just in general, you know, some of the conduct alleged can just be characterized as an alleged conspiracy with, you know, private parties, to pressure state officials in a way that has no plausible connection to the official duties of the president. And so, whether you characterize that using the Blassingame, you know, official versus campaign conduct, or just, you know, I don't know, ordinary, like, criminal conspiracy, not plausibly connected to any official responsibility or duty, whether or not he's a candidate — that, I think, still does preserve the possibility that a lot of this conduct could be subject to criminal proceedings that, you know, survive a win on this question in the Supreme Court.
But on the timing issue, like, even if you did a really fast mini hearing on this, well, what can we carve out is not official acts. And then I think you maybe do, I mean, it's both law, and fact, I think it's not, it's not impossible, but it's exceedingly unlikely that anything is going to happen in time for an actual trial on the remaining nonofficial conduct allegations before the election in November.
Andrew: So, one thing I've been thinking about, I think, some of what your writing has sparked this is, I agree with you that this would be in the sort of the worst-case scenario, where Trump wins on sort of the law point, and it goes back for a finding, like in Blassingame, about what is official or not official. They don't accept this, the allegations in the indictment, as on their face and say, you need to actually have a hearing.
As long as there's not going to be — assuming that the court is going to sit on this so long that there actually isn't the ability to have a trial, from Jack Smith's perspective, and maybe even the country's perspective, that hearing may be the substitute for where they're actually, it's not the same. It won't be the full panoply of evidence, but you actually could end up with a, sort of, where you actually, the court may be thinking that they're slowing this down, but in fact, they end up handing the ability for the court to have that hearing. And it may also be one where the court wouldn't you know, right now, there's this — I try not to do math in public, but there's this 88-day problem, because Judge Chutkan issued a stay 88 days before the March 4 trial date that she had set. So presumably, if she were to get the green light, which I think she will, she was going to give the defense something close — either days or something close to that.
But if the issue was not the trial, but a hearing, that could be a way we could shorten this all up. And essentially, in some sense, since the summer is now free, because we will be done with the Manhattan case, and it doesn't look like any of the other cases is taking up that space, there is a way that there could be sort of a rabbit pulled out of this.
George: That would be the dog catching the car.
Kate: Although, I mean, and then we have a Supreme Court ruling that presidents are absolutely immune from criminal prosecution. And like, a short term, maybe there is some way to make political gold out of this. But I mean, I just find that such an alarming prospect to even sit with.
George: I agree with that.
Andrew: Right. So, one of the questions I had for all three of you is, so, if you were one of the justices eight days from now, what questions would you have for either side?
Kate, do you have an idea on that?
Kate: I can offer a couple. I mean, one a little bit goes to the last question you asked, which is, could the justices — we don't know if this, you know, trial could happen or this, you know, hearing that could turn into something like a trial and airing of the details of the allegations — but there's a good piece a couple law professors at Duke had in Slate last week that suggested that actually, the Special Counsel’s office should use the Supreme Court argument as an opportunity to do that, because this actually is the only really guaranteed chance they have to speak to the American public, and that they should focus on the factual allegations. And now, that's not the typical stuff of Supreme Court arguments. That's not the way Michael Dreeben who’s, you know, argued 100-plus cases is like, ordinarily, I don't think — I don't know him, you do obviously, Andrew — doesn't seem like his style, as far as I can tell to like, treat the Supreme Court argument like he's making an opening statement before a jury. It's not just how it's usually done. But I don't know. Maybe there was something to that. So, questions that actually do allow some discussion, not just about, you know, founding era history, not just about the cases on civil immunity, but actually about the underlying allegations.
I actually thought Elizabeth Prelogar did a nice job in pivoting a couple of times yesterday in the case, the Fischer case involving, you know, a different January 6 defendant. You know, Thomas's opening question characterized the, you know, underlying conduct as protest, and then she pivoted, I think, very, very explicitly to the detail of allegations of violence and harm. And anyway, so, I don't know exactly what the kind of analog of that is, but I feel like something like that would be good.
I feel like I would like Trump's lawyer to be asked whether United States v. Nixon was correctly decided. I just feel like I don't know how to square their arguments with it. And maybe they say no, and that would be really revealing. So, I would like that. I want to understand their position on Marbury. So, I guess, would ask that I want the justices — you know, as also a common law professor, like, I'm really excited for my students to actually get to hear the folks debate — and understand that, you know, we all struggle with Marbury the way you guys do. But that's a few ideas.
George: I'd like to hear more about SEAL Team Six.
Trevor: Yeah, I think, I think they should ask — and I would, I will be surprised if Trump's team is not asked, do they stand by their answer on SEAL Team Six, because in fairness, they should be given opportunity to, you know, recant a preposterous position and although nothing in their brief retreats from it, and to have that, to be able to cite the transcript of the oral argument where they double down on SEAL Team Six will be effective.
I think, then, on the other side, Michael Dreeben should be asked to bring out what he says in his brief about why Trump's litany of past presidential actions — and he cites FDR’s involvement in the internment of Japanese Americans during World War Two, he cites Obama's drone targeting of Anwar al-Awlaki and various other misdeeds going all the way back, I think he might cite Andrew Jackson and the Trail of Tears, even — so the brief does it. The Special Counsel brief does a great job of showing that federal statutes didn't prohibit most of that stuff. And so, there's no question of prosecutability and reminding the court, which is, you know, they’re members of the court that are going to have contempt for this idea, because they're not interested in any institutions other than their own. But they should be reminded that the court’s position, across many decades, is that an important way that our government works is, you shouldn't just assume there are laws covering everything, and Congress decides to criminalize some things and not others. And so, the absence of criminal prohibition in all these parades of hypos that Trump's brief has trotted out, was, I think, effectively shown in Jack Smith's brief, but I just think there should be a reiteration of that tomorrow.
Andrew: So, one question that Ryan Goodman definitely teed up in thinking about timing, which I wanted to ask you about, was to ask questions of the Trump council as to why it is that on the only issue before the court, which is the question of immunity, it is not the issue of the timing of the trial. That has been decided. That has not been appealed, wouldn’t be appealable in this context. What legitimate argument they have for the court not issuing an expedited decision, because, as Ryan has pointed out, the position of Trump's team at the district court level with respect to the gag order, was that this indictment is not just a witch hunt, but that the gag order is interfering with his ability to run from for office. So, both of those are reasons for an expedited decision, unless your view is, if you're ruling in my favor, then you should expedite it. But if you're not, you should slow it down.
Trevor: But that is for sure his position.
Andrew: Oh, I know. Oh, I mean, that is his position. But it's like, ask that to sort of forced the question of, please articulate that, and that sort of raises sort of, I guess —
George: If they take to the last day of the term to issue a decision, say it's nine-nothing in favor of Jack Smith, when is the trial on the 88 days?
Andrew: Yeah. So I mean, this is, this is one of these questions where you could end up with, and Melissa and I have talked about this, which is, you could end up with a very, very flowery decision about nobody is above the law, that that applies to the up to and including the president and lots and lots of great language that we look to and say, it's sort of the opposite of the, you know, a decision that says, we're sending this back. And, you think this is great, but they issue that decision on the last day of the term. I mean, remember, we're hearing this case on the last day, last oral argument day. They could have heard this case when Jack Smith initially asked the court to leapfrog the circuit, and to hear it directly from the district court. So, that would have been months ago. They also scheduled this with two months of briefing in a case that was clearly briefed and ready to go.
So, you count 88 days from, let's say, they issue this on the last day in June. Then you have essentially three months from that. And then you have a real issue, I think, for the court, which I think might also be appealable about scheduling something at that moment in a presidential election.
Trevor: But doesn't that assume — sorry, you know way more about these kinds of rules, Andrew, than I do — I think we're assuming that Judge Chutkan would be inclined to give the party some large fraction of the 88 days they would have had on the original trial schedule. But isn't that committed to her discretion, and wouldn't, and assuming an opinion that says nobody's above the law blah bla blah, blah, blah blah, wouldn't she feel a bit of an implicit directive from the court to make it possible for the trial to happen in a month earlier than October?
Andrew: I mean, look, I think, one, you know that it will get appealed. I mean, she definitely could try to shorten it up. But I think that two things that I would expect is that Jack Smith is going to do this sort of slim to win approach, which is, he is going to give her some reason to say this case is going to be shorter and narrower in order to make an argument for why the time frame should be shorter.
The other is, remember something that she said at the very outset of this case, which is that she said, the timeframe for the trial can be shortened based on your conduct. That was to the former president saying that, essentially, I have to come up with something short of sending you to jail to control your behavior. Well, there's no question that there will be a record if his continued conduct.
Trevor: He’s been very good.
Andrew: So, I think there's a second reason that she could shorten it up. It's still, I think she would have the trial, but is one that still, you know, I think the earliest, I think, would be, you know, sometime in August. That's just a guess.
Kate: And on the slim to win theory, like, the Supreme Court may force that on Jack Smith if it throws out two of the four cases or two of the four charges against Trump. It'll just leave the Fischer case. So if Fisher wins and the court says this, you know, obstructing or impeding an official proceeding theory does not apply here, because it's like a document tampering statute, which another provision of the statute is, but not this one, but that seemed like where the court was going, then there's just the, you know, conspiracy to defraud and the deprivation of rights charged. And so, then maybe I could see her saying, well, yeah, I said 88 days, or I implied — I don't even know if she'd really, I don't know if she said it explicitly — but I implied something like this when we had four charges. This is a totally different picture right now. And you certainly don't need all that time. So, it does not seem to me like she is in any way bound to that number.
Trevor: I do have one just thing to confess about the timing. The waiting for the oral argument until April 25 is my fault. I asked the court to delay until after the end of the semester, because I did want to be able to preserve this kind of case for the exam in con law and so, my bad yeah.
Andrew: Thank you. Is there anything else you want to get off your chest?
Okay, so students, I think, questions. There are microphones on either side. So, come on up and use the microphone so that people who are listening in can hear you all.
Audience Member: Hi. Thank you all for taking the time. I think as law students, it's concerning, but also intriguing to be living through legal history. So, thank you. But my question is, we have seen the Supreme Court intentionally, it seems, decide issues on narrow grounds, either as a show of judicial restraint or to kind of move the law gradually. There aren't many cases about presidential immunity, and obviously none about presidential criminal immunity of this type. So, in your view, are there responsibilities that the Supreme Court or any lower courts have when they see cases like this, to articulate broader principles or parameters that might extend beyond the boundaries of the facts presented in this case, where in other situations they might not?
Andrew: So that's a great question. I broaden it to be, do you think that might be one of the reasons they took the case? Because I think all of you are saying that even if there is immunity, it's not going to apply, it shouldn't apply to this case, because we don't fall into the, sort of, I'll call it the Trevor Morrison rubric.
Trevor: Don't call it that.
Kate: No, I think it's a really nice question. I think that there's some evidence that in these cases involving the, you know, asserted immunities of the president, the ordinary, you know, long standing rule — I don't know how much they abide by these days, honestly — but that they should decide cases on narrow grounds where they can responsibly do that, you know, in United States v. Nixon and Clinton v. Jones, in Vance, even, like the court unanimously or nearly unanimously rejects these really broad assertions of presidential prerogative and immunity. And, I think does it in a kind of more sweeping at least language than is strictly necessary. And so, I actually think, I think that that is reason to believe maybe there — again, this is a different court, so, I don't know how much past is prologue here — but I do think that that might suggest that they will not necessarily adhere to some narrow, you know, result in the case.
Trevor: This is one of those — great question. This is, for me, this is one of those cases or sets of issues where each time I think I know what it means to rule narrowly, I kind of turned upside down. I'm like, well, isn't that ruling broadly for the opposite proposition? And so, to Kate's point, I think I'm hoping all the justices, a super majority of them, will want decisively to reject the sweeping theory of immunity. And you can do that by ruling narrowly. You can do it, because if you hold Trump not immune here, you have — for any reason — you have necessarily rejected the idea that former presidents are always immune.
I think the other thing, for me, a number of the justices, I won't be surprised if they are eager to make sure that in holding Trump not immune, as I was suggesting before, they don't mistakenly send a signal that there is nothing to protect the criminalization of core presidential responsibility for presidential conduct. You know, the court has three members who've served in the White House and who have, in their own professional background, experience with thinking about the need to protect presidential prerogative. That’s the Chief Justice and Justices Kagan and Kavanaugh. And I wouldn't be surprised if they are all somewhere near the same page here. And I think there's a way to do something that's helpful for future cases by rejecting some absolutist positions, but then also ruling otherwise narrowly on this, this case as to why there's no immunity here without reaching broadly in the other direction and saying, there could never be immunity for a prosecution of a former president for official conduct.
George: I agree with that. I think that's why they took this case. I can't explain the timing of it, why they decided to hold the argument — but I think that's why they took the case. I think they felt that they, you know, they didn't want to leave a circuit court decision in place on something that was potentially so important that could affect something in the future. They just want to, they just want to leave the door open in some fashion. But, the problem is, they shouldn't overthink it, because the hypotheticals you can come up with are just infinite. And this is an easy case. And they can't lose sight of the fact that this is an easy case, for the reasons that the DC circuit panel said.
Andrew: So, I have a question that it's somewhat related, which goes to the idea that there is this stay because of immunity being argued, and you have this, again, just to make sure our students understand, the normal rule is that you appeal things at the end of the case, and you don't get the stay beforehand. Now, for things like double jeopardy, where there's a colorable argument of it, you do. And that is, it doesn't come up a lot, but that is the argument for why that is happening here, that you have a stay in this case, because it should be argued beforehand. Meaning if you were immune, you shouldn't be suffering the consequences of a trial.
But, if it's clear that what the court is doing is thinking about the question that was asked about, sort of larger, big picture, what do we want the law to be, but we know in this case, it's not applied. It's not going to be the issue. Why is there a stay? I mean, this just seems like one where, could this have been litigated or decided differently? Or should the law be different, where the district court and the court of appeals could have been like, yes, these are potential issues. The Trevor Morrison examples — I know you hate this, you're just like, okay —there may be areas that fall into presidential immunity, but it's not this case. So, that the whole purpose for having a stay, which is something that is antithetical to certainly the public's interest in a trial of criminal matters, is being undermined needlessly,
Trevor: I think. I think it's kind of inescapable. I think the answer is, yes, that this delay is unfortunately leading us into this position and to, you know, invoke an argument that I know our Harvard colleague, Jack Goldsmith, has made. You know, there's no getting around that this trial, if it happens before the election, is going to be standing in some tension with a long standing Justice Department norm of not wanting to conduct trials at a time when they're likely to have an impact on an election. I mean, the other side of that, obviously. So, I don't mean to be opening that. But I just think that's an expression of the cost that Andrew is talking about here.
For me, not to tout my opposition on this, but one reason why I've wanted to say that the constitutional limitations I think do exist on the prosecutability of a president, these separation of powers constraints, one reason why I think it makes sense to call that immunity is to say, in a case where those things were legitimately implicated, I do think the president ought to be able to raise it pretrial, and take an appeal if those arguments were denied. Now, if we already had Trump v. United States on the books, making clear the boundaries of this, there would have been a much better argument for saying, the arguments you're making here, Trump don't sound anywhere in the doctrine, are preposterous, and they're like making a double jeopardy argument at the beginning of a trial where there is no double jeopardy argument to make. You wouldn't be able to take that up on appeal. But I think we're kind of stuck with the uniqueness of this. Trump, in just about every area of the conduct of his presidency, forced the constitutional issue in ways that courts had to answer questions they'd never before had to answer. And one consequence of that is, sometimes you need to live with the delay. I think it's unfortunate but unavoidable.
Andrew: I want to thank all three of you for taking the time. It'll be fascinating to see.
Paras: We hope you enjoyed this discussion. You can read Just Security’s coverage of the Trump Trials, including expert analysis on presidential immunity, on our website.
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