Just How Bad Were the Oral Arguments Re: Presidential Immunity?

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:44 Thomas: Hello and welcome to Opening Arguments. This is episode 1028. I'm your host, Thomas Smith, and that's your real-life attorney, Matt Cameron. How you doing, Matt?

0:00:53 Matt: I'm immune from prosecution. How about you?

0:00:56 Thomas: You the president?

0:00:57 Matt: Just think everybody might be after reading this. Yeah.

0:00:59 Thomas: Oh, ok. I think it's only Alito's friends. That's the only only people who matter. Yeah, oral arguments in the immunity case, this is one, Matt, where I, for one, need OA because I saw a wide range of reactions. I really did. I mean, on I one sense, it was like, oh, great, this looks horrible. In another sense, I was a little bit encouraged because there was a lot of reaction, like, on Reddit and places that was just like, Oh, so the court's fake now? And I was like, well, I'm always a fan of that. Like, I do want the world and the the country to realize that the court is fake. But then I don't know though. I listened to the oral arguments. I'm like, I don't totally get it. I don't totally get the certainty of a lot of the response, you know? And, and so I'm wondering, uh, what's going on there and I'm excited to have you break it down for us. So that's that's Our Main Story today. And I think we're going to need all the time.

0:01:04 Matt: Well, Yeah, I'm with you there. There's a lot of strange stuff to talk about. And I think this is one of those things where just kind of playing through some clips and showing what these people are actually arguing will expose a lot what's going on here.

0:01:53 Thomas: Right. Well, that's after the break, patreon.com/law. Oh, by the way, Matt, our um, acting huge hit, huge hit our dramatic reading of the, transcripts. I'm excited to do more of that. There's lots more where that came from. More transcripts to go through, for one, but also we're always down for some more acting. Maybe we'll enlist some help. That's on patreon.com. That was a long extra bonus portion of the last episode. Make sure if you didn't get a hold of that, go check that out. You can avoid the ads. You can get the goodies. You Can Get the Extra Stuff. Get that warm, and fuzzy feeling of having supported the show. So patreon.com/law. after this break, we will get to this horrible thing.

0:01:59 Matt: Oh, yeah.

0:02:32 Thomas: Right, Matt. So where do you want to begin? Two and a half hours of oral arguments. Guess you got to pick an entry point for us, yeah.

0:02:37 Matt: Yeah. Well, let's set this up. I just want to make sure that everybody's got the background here and understand how we got to this ridiculous point, because this is the third time the Supreme Court has had to look at a January 6th case in the last two months. I don't think any court has ever been so involved in a presidential election directly or otherwise. And the same time, I think I could be wrong, but I believe we're at the lowest approval rating that the Supreme Court has ever had at The time. Time that they're trying to decide a presidential election. So that's not great.

Course, we know that they had the Colorado ballot case that we discussed a couple months ago and they determined that insurrectionists just can't be stopped from going on the ballot pretty much for any reason. Had the obstructing official proceedings under 18 U.S.C. 1512 C.2 that we dismissed, I think, a couple of weeks ago now in context of the other January 6th defendants and whether or not that statute holds up for obstructing official proceedings. And that actually comes up in this too. Then now on April 25th, we just had this immunity argument about whether or not former presidents can be prosecuted and convicted of crimes, as which I say that out loud, that doesn't seem like something we should be arguing about.

0:02:58 Thomas: All right now is Just a former president's question because there's an awful lot of talk about like if they were making this decision if they're, you know, having this person killed or having, that was it all in the context of being prosecuted for it after their presidency, though? And

0:03:47 Matt: But question presented in this case is as to former presidents, they did limit it At at least that much. So yeah, another question. And actually, I clip a clip actually of Brett Kavanaugh talking a while back, Brett actually. Kavanagh has an opinion about presidents being prosecuted. I found this, this is from quite a while ago. Is a very young, handsome Brett Kavanaugh at a Georgetown Law conference. I just think this is kind of interesting because this came up during his confirmation that he had some opinions about former presidents and presidents generally being prosecuted. Here he is at a Georgetown Law Conference.

0:03:50 Thomas: Okay, okay, okay.

0:04:15 Clip: Comment raises the question whether the president is subject to criminal indictment at all, which is a question that has been a lurking constitutional issue for a long time and which, at some point here, should be resolved so that we can determine whether the Congress or an independent counsel should investigate the president when his conduct is at issue. I tend to think it has to be the Congress because of the kind of attacks that we've seen recently and because of types of issues that were just pointed out. It is war, and if it's going to be war, it's got to be Congress, not an isolated prosecutor appointed by a panel of three judges we've never heard of.

0:04:50 Matt: This is amazing because this is Brett Kavanaugh. Yes, Brett Kava in 1998. So first of all, he is just coming off of the Clinton prosecution, the independent counsel investigation with Ken Starr. He worked for Ken Starr for quite a while, as you might know.

0:04:51 Thomas: 1998. Okay.

0:05:00 Thomas: That's right. Yeah. Yeah.

0:05:02 Matt: He was all about the Ken Starr prosecution. He thought Bill Clinton was disgusting, and he was ready to take him down for whatever he had in front of him. And then he about-faced, after the independent counsel statute lapsed, because Congress let it lapse, was no such thing as independent counsel at this point. There's just special counsel. And Brett he Kavanaugh has gone out hard against the idea of independent counsel after having worked on the Ken Starr investigation, which I think is pretty interesting. And that comes up in this argument. He's very concerned. He goes on like this monologue about independent counsel and how dangerous it is, even though that's not even the law right now, and nobody's talking about independent council. He just decides to talk about it. It is in 1998, here's young Brett Kavanaugh probably having no idea that he's ever going to be counted on to decide whether or not a president can be indicted, saying that he doesn't think a president CAN be indited, at least a sitting president.

0:05:04 Thomas: Oh, yeah.

0:05:45 Thomas: The difference between independent counsel and special counsel? I don't remember.

0:05:48 Matt: Independent counsels were appointed by a panel of judges, whereas special counsel, as we remember from recent investigations, are appointed by the attorney general for specific things. And independent counsel's investigation could run on to whatever they found in front of them. As you know, the Watergate, you know.

0:06:00 Thomas: Yeah because Ken Starr went on forever in

0:06:02 Matt: Right. And just got into every part of Bill Clinton's life when they were just supposed to be looking at Watergate. Whereas, you might remember from the Mueller investigation, right? You have a kind of a delineated list of things a special council is supposed to be looking at. So that does come up here because Brett Kavanaugh and the conservatives are very concerned about the deep state and about the FBI and about the possibility that a president is going to be wrongfully persecuted instead of prosecuted. In this argument, sorry.

0:06:24 Thomas: 1998. Oh okay. I got you.

0:06:27 Matt: Yeah. And would know. So sure.

0:06:27 Thomas: Yeah yeah. Take it from me. We did way too much power in that situation, which I mean, I don't know, fair enough, I guess. Wait.

0:06:34 Matt: So this all comes, of course, from the D.C. prosecution in which Jack Smith indicted Donald Trump for a long list of things having to do with January 6th, essentially the entire special electors, fake electors scheme in which they were trying to get Mike Pence to swap in some of their electors because of allegations of election fraud. A long list of things alleged in that indictment. And there's going to be a pretty open question about whether some of these are private acts done by somebody who's running for president or somebody who is actually the president in his official capacity. So Trump files a motion to dismiss with the D.C. District Court in October 2023.

0:07:08 Thomas: Sorry, can I already stop you there? Because that was, there's so much the argument, again, this was one that was particularly difficult for me to follow as not the expert, because it, I know why, like normally I feel like I can follow the arguments a little, maybe it's because uh Pre-logger wasn't there and she's the best, I dunno, but anyway, there was so much talk of private act versus official act or whatever it is, and I didn't understand why that would matter, like that something that already matters is that that's something that only matters after the Supreme Court decides to ruin the current state of the law. I didn't really understand why that made a difference.

0:07:39 Matt: We're just in completely unprecedented territory because no former president has ever been prosecuted before. But obviously, I the example was given at some point of if there was some sort of like a messy love triangle and President Trump ended up shooting Melania's lover or something, right? Just completely private murder. Obviously, there's no argument to be made that that is within the scope of his duties, right.

0:07:53 Thomas: Okay. Excuse me. This is a private murder. Can you please?

0:08:01 Matt: As opposed to the kind of public murder where you send out a drone strike to kill a U.S. citizen in Libya or whatever, right, and that's something that, you know, counsel was making a big point, brought up the idea that the Obama administration was out there doing drone strikes all the time, including on an American citizen. You know, I have talked about this before. I know we have some sympathy for the idea that presidents maybe should be completely exposed when they violate the laws in this way. But they also have the benefit of the Department of Justice and the Office of Legal Counsel telling them that some of these things are legal, including that drone strike. And that's the point that the government made here. I have issues with that. I still think that there should be possibility of prosecution for doing things, even if the Office Of Legal Counsel tells you, because you can imagine a Bill Barr-type prosecutor might just tell you that everything's fine.

0:08:04 Thomas: Sure. Yeah.

0:08:39 Thomas: Well, you know, they talked about that and I was thinking, look, at least that would give us something because then could we hold Bill Barr, like, if we could hold somebody accountable, you, in that case, let's say they did advise Obama that this was cool. And then it turns out it wasn't. You could punish the legal counsel for having advised that, then I don't think it'll be that easy to be like, well, you'll just find some legal counsel, say it's okay to kill people.

0:08:46 Matt: Yeah, right?

0:09:00 Thomas: It's like, Well, not if not if their ass is on the line. So that would at least give us something. But now it feels like we just have nothing when when it comes to that.

0:09:02 Matt: Yeah, no. I agree, everybody should be accountable all the way down, and I'm very concerned about accountability depending on how the court comes out on this. But speaking of Bill Barr, I've got an appearance from him here in this episode, and I think that'll be important to play, this just to remind you about how important this particular argument actually is, because there are a lot of things going on this week. There are a ton of other things we could have talked about and I still want to talk about, including Harvey Weinstein, obviously the Grants Pass homelessness case.

0:09:15 Thomas: Oh boy. Yeah. Yeah, so much.

0:09:32 Matt: Just so many other things happening, but this is the most important, of the term. And it is the last case being argued this term and it's going to be a big one. So I this clip from Bill Barr really reminds us why.

0:09:37 Thomas: Yeah oh

0:09:43 Clip: Are a lot of Republicans who defend Trump saying, well, that's a hypothetical, and that's ridiculous. But Alyssa Farah Griffin, who was Trump's communications director, posted yesterday and said that you were present at a moment when Trump suggested executing the person who leaked information that he went to the White House bunker when those George Floyd protests were happening outside the White house.

0:10:04 Clip: Do you remember that? I remember him being very mad about that. I actually don't remember him saying "executing," but I, you know, I wouldn't dispute it, you know. I mean, it doesn't sound... The president would lose his temper and say things like that. I doubt he would have actually carried it out. I don't, you know. But he would say that on other occasions.

0:10:22 Matt: Great.

0:10:23 Thomas: My god. Oh that's so comforting.

0:10:25 Clip: You know, the president had a, uh, I think people sometimes took him too literally and and you know. Now, he would say things like, similar to that, in occasions, to blow off steam. But I wouldn't take him literally every time he did it. Why not?

0:10:31 Thomas: Ah sure. Did you take him seriously though?

0:10:42 Clip: Because at the end of the day, it wouldn't be carried out, and you could talk sense into it. But just because it's not carried out and you can talk sense in to him, doesn't that still mean that the threat is there?

0:10:51 Thomas: Boy that's uh that's comforting.

0:10:54 Matt: The same interview, he goes on to explain about why Joe Biden is a danger to the country and he's voting for Trump. So after telling us, yeah, I mean, this is who they are, but it just the idea that Trump was just going around being like, yeah we should shoot that guy, you know, after, you remember the bunker thing obviously when he got so embarrassed because he went down to the bunker during the Black Lives Matter protests.

0:10:58 Thomas: Yep yeah yep. Gosh I did not remember that. There's so much bullshit to remember that that is not not one I remembered.

0:11:13 Matt: So many, so many things. Know, somebody had an idea a while back that there should just be like a national holiday where we just tell each other one Trump story So we all remember.

0:11:21 Thomas: Honestly, I have thought about that for this podcast. I actually wanted to do, we could do like a day in the Trump history here and there, but he's still making more. So we got to keep up with that and we'll figure it out. Hey, if you have any ideas, write in or something, send us a Patreon message. Because would love to actually remember a lot of the worst stuff because it just was too much. But anyway, I, I completely forgot about this one. So

0:11:26 Matt: Yeah. Yeah.

0:11:46 Matt: He actually was using the same logic that Alito and others are using in this argument that, well, even if you had an unlawful order like that, nobody would carry it out. And I mean, Trump would never surround himself with people who would just carry out orders for no reason.

0:11:53 Thomas: Yeah, yeah, exactly. So it's fine. Gosh, that probably, I don't know if we're skipping ahead with that, but yeah, that part of the oral argument it drove me nuts because it's like, okay, we're here to decide, should he be immune from prosecution? So the that like, well, if he tries to do something horribly illegal, no one will follow his order. That to me is kind of irrelevant because like, well, what if they do? Why Would you say, yeah, he can be immune because someone else will refuse to break the law. What if they don't? Why would you? If that's true, then he'll never be prosecuted. So why, why do you even have a problem with it? Right? I mean, stupid.

0:12:15 Matt: Yep. And If you've still allowed it to go into his head that he can say these things and make these orders, so I mean, at the end of the day, you're opening the door, it's really bad. There's no justification, so

0:12:34 Thomas: Okay. He's voting for Trump because Biden's the border or something. I don't know.

0:12:38 Matt: Clear In Present danger to the United States, yeah, of Course, yeah.

0:12:40 Thomas: Stupid. Oh boy.

0:12:42 Matt: Yeah, yeah, as we know, uh, to uh, on how we got here. D.C. Circuit issued a 57-page decision on February 6th, 2024. Very well-reasoned decision, I thought. I think the Supreme Court easily could have just affirmed and still could just affirm this decision, but that's probably not what they're going to do. They took most of February to decide whether or not they would review that decision when they easily could've decided pretty quickly to just review it. And then, as we've discussed before, they set argument for the last possible day, which Was last week, April 25th, and that was the last day of term. They really went out with a bang on this one. The question presented in this case, so the original, I just wanted to note, because we talked, talked about this before, but it was reframed by the court because they can always do that.

So the original framing from Trump's team was whether the doctrine of absolute presidential immunity, absolute presidential immunity, there's no such doctrine, includes immunity from criminal prosecution for a president's official acts, i.e. those performed within the outer perimeter of his official responsibility. And that's from Nixon v. Fitzgerald, but that's a civil case, which we'll talk about. And then the second question they wanted to review was whether the Impeachment Judgment Clause of the U.S. Constitution and principles of double jeopardy foreclose the criminal prosecution of a president who has been impeached and acquitted. And the court didn't even consider that as a question to be raised.

Like they did not want to hear about this because it's such a stupid question. And I'm sure we can talk more about how stupid it is. I don't even know if we need to talk more how stupid is. They narrowed it down and they said, no, look, this absolute immunity thing, no. The question is going to be, the only question we want to hear about is whether, what extent, does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office? That's not exactly what the D.C. Circuit said.

It's not exactly what Trump was asking, but they're trying to find a way to limit this and thread the needle so that they're only talking about official acts, course, that raises a whole other specter of what's an official act or not, which we're going to get to. And I can tell that's one of the things that you're most concerned about, I understand, because, you know, the D.C. Circuit didn't give a lot of guidance. I will read from the D。C.

Circuit's opinion, which I thought was very good, and they're holding here: cannot accept former President Trump's claim that a president has unbounded authority to commit crimes that would neutralize the fundamental check on executive power, the recognition and implementation of election results. Nor can we sanction his apparent contention that the executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count.

0:13:05 Thomas: Cool.

0:15:02 Matt: This stance would collapse our system of separated powers by placing the president beyond the reach of all three branches. Immunity against federal indictment would mean that as to the president, the Congress could not legislate, the executive could not prosecute, and the judiciary could not review. We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter. Careful evaluation of these concerns leads us to conclude, etc., etc. Oh,

0:15:25 Thomas: Not even a very careful evaluation, just like a pretty quick evaluation, actually. Honestly, we didn't even evaluate that hard. It's super super obvious.

0:15:28 Matt: Yeah. Right. Can the president be charged and convicted of crimes? Yes, he can. It didn't take 57 pages, but it did.

0:15:36 Thomas: Should the president be a god among men who's not ever liable for anything ever for all time? No. So that's pretty clear.

0:15:42 Matt: Yeah, sure. Right. I mean, in their briefing, and I just went through and kind of read the briefing on both sides, kind of going down to the lower courts, the president's team was insisting that when it said in Marbury v. Madison, of course, Marbury vs. Madison being one of the most fundamental cases in American jurisprudence, kind of kicking everything off and saying the judiciary has the right to review things. There was a comment in Marbury v. Madison that a president's official acts can never be examinable by the courts. I don't think that's what they meant. I'm pretty sure that John Marshall did not mean that you can't ever examine whether or not the president committed a crime. And that's what the D.C. Circuit said. That is not how we can read it. That's how we get to April 25th and two hours and 40 minutes of argument. And I wanted to explain in a quick sidebar here why it took so long, because Supreme Court arguments didn't used to take this long when you're just having two lawyers argue. Two hours and forty minutes. This was scheduled for an hour.

0:15:59 Thomas: Yeah. Yeah, it

0:16:37 Matt: An interesting change in practice that occurred during the pandemic I haven't heard discussed very much. And, I don't know if it's been discussed on this show before, but I think it's really worth mentioning before we go forward, because it really, I mean, this thing was so long, so unnecessarily long, because they went down all of these different little rabbit holes and avenues and thought experiments and hypotheticals, mostly completely useless and having nothing to do with January 6th. But during COVID, the justices started appearing by phone.

They would not appear on Zoom, of course, because the video just isn't an option. Even when they're just having their faces on video, they could not countenance the idea of being on video. So they had telephonic appearances and they held Supreme Court by phone for the first time in U.S. history. So because they couldn't see each other, obviously, as sometimes happens on a podcast, we do talk over each other once in a while, questions at the same time, say things at the same time. So rather than the kind of free-for-all format that we're used to in the Supreme Court, where a party gets up and has a little two-minute intro and then has 28 minutes essentially to get peppered by all these questions from the nine justices, they adopted something called seriatim questioning, which is when they ask questions in order of seniority.

And essentially, you just have to get like a little Socratic dialogue going with each one of the justices. Somebody described it as like having to do nine arguments for three minutes each. It really changes the nature of the whole thing. And it also doesn't go toward your time. So the free-for-all part is when the 30 minutes happen, but they can just go on as long as they want. And they seems like they do during the seriatum part.

And it really breaks up the whole flow of things, because instead of having one justice kind of coming back and piggybacking on another justice's question or being able to follow up or expand, just have these kinds of long lines of questioning, and then somebody else picks up a completely different long line of questioning and you forget where you

0:17:19 Thomas: Was chaos.

0:18:15 Matt: Were. It was.

0:18:16 Thomas: No wonder I couldn't follow it, yeah.

0:18:17 Matt: I don't know, I understand. And apparently what they did after in September 2021, they adopted this hybrid system because they're back in the same room again, and they decided that they could do the free-for-all followed by the seriatim because everybody liked that so much. A side effect from the seriatim questioning is that Clarence Thomas started talking.

0:18:32 Thomas: I remember that, sure.

0:18:34 Matt: He'd gone about 10 years at one point without asking a question. And his official position on this, and I have to respect this, Clarence Thomas is a Southern gentleman at the end of the day, and his official position was he just didn't want to interrupt people, which is a funny position for a judge to have because that's a big part of a judge's job. Apparently, no longer having to interrupt people.

He has the time to think things out and ask these questions in seriatim, and he's been more participatory. So that's been an interesting side effect of this change. But that is why the whole thing took so long. The parties today, obviously, were the president and Jack Smith's office. The president was represented by John Sauer, who is a pretty well-known conservative litigator. He used to be Solicitor General of Missouri.

He's participated in quite a lot of, I would call, frivolous conservative litigation, including that really really big suit involving all the states after the, uh, the election where they all tried to claim that election fraud was somehow harming different states. Remember all that? It was a big mess. Yeah, various immigration litigation that I hold against him as well. So John Sauer is a true believer from what I can tell. And on this side, Michael Dreeben, who, uh, might remember from Mueller's team, he worked pretty heavily on the second half of the Mueller report. Something of a scandal with Michael Dreeben at this argument. Just to mention Supreme Court practice again, he showed up wearing a regular suit. And if you know anything about Supreme Court Practice, the male lawyers representing the government are supposed to be wearing a morning coat. And he did not do that. And Alito at one point asked him kind of pointedly, aren't you representing the government today? I

0:19:20 Thomas: Okay. Right.

0:19:56 Matt: Didn't really comment directly on his outfit, but I think that's what that was about, because obviously he's representing the government, um.

0:20:00 Thomas: When I think the Supreme Court can't get any stupider, I don't... They're not allowed to show any of it, this is only audio, that's only for what, them? Are they confused? By the... Honestly, they shouldn't, they should be allowed to wear casual Friday, like, who cares, nobody can see, yeah.

0:20:08 Matt: Yeah. They Hawaiian shirt, yeah, I'm sure it's whatever you want at this point, uh. Remember, they used to have, I probably still do, I remember, I think it was Elena Kagan telling the story about how they had like an extra morning jacket, they tried to squeeze her into at one point

0:20:25 Thomas: I was yeah like the the fancy restaurants where they, like, it "Here, you, you can have the loner coat," uh, that would be really funny, uh.

0:20:29 Matt: Yeah. But it's Just extra funny to me. And I guess just sad and pathetic, too, that at the time when we're debating one of the most important questions that we've looked at at the Supreme Court in a long time, that Alito is still kind of at the back of his mind thinking, did you show up with your dress code? Or are we complying with dress code here? Here.

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0:22:25 Matt: So we thing queued up. Now, C -SPAN does an amazing thing with oral arguments, I recommend to everybody, where you can just go and get the oral argument on C -Span, and they have them bookmarked to every little piece of everything that happened. So I wanted to play a few of these bookmarks. Get I a little taste of the opening, so you can get a sense of where Mr. Sauer is coming from.

0:22:44 Clip: Immunity from criminal prosecution. There can be no presidency as we know it. For 234 years of American history, no president was ever prosecuted for his official acts. The framers of our Constitution viewed an energetic executive as essential to securing liberty.

0:22:51 Thomas: Oh. Boy.

0:23:05 Clip: If a president can be charged, put on trial, and imprisoned for his most controversial decisions as soon as he leaves office, That looming threat will distort the president's decision -making precisely when bold and fearless action is most needed.

0:23:20 Matt: Get the idea. I very

0:23:22 Thomas: Again with the energetic. Whatever, he's just so energetic, he's why he can't sit in court, and it's why he can't be in court, he can be in the court, he needs to be immune forever, forever, I guess that's kind of the same thing really, yeah.

0:23:31 Matt: And again, one thing you might notice is they really go out of their way. The lawyer and most of the justices go out of their way, not to mention January 6th, the events of January 6, the fact that there was a false electorate scheme, anything to do with what's actually an indictment. And they're very insistent on talking about other hypotheticals and other precedents and other things that have happened. And of course, you can imagine why.

0:23:51 Thomas: Yeah.

0:23:52 Matt: We don't really want to have to think about that. And that was the same thing, of course. In the Colorado case, they didn't mention January 6th once, really. And the same things even in the case we're talking about a couple of weeks ago with that statute that January 6 defendants were charged under, that they were barely talking about what they did. And I just have a problem with that. I think we should be talking about what they did for the ages, yes.

0:24:09 Thomas: Ostensibly, they're, as Gorsuch said, it's, oh, because we're crafting a rule for the ages, he says. So you got to make sure. But it's, it is kind of important. Like, in one sense, okay, I do get, like, you do want to make sure if you're crafting rules for everybody that you don't get them too hyper-specific to the case at hand. You know, I can understand that. You want to look at, like—wait, but won't this apply in these other set of facts? And that could be bad.

0:24:34 Thomas: Like, that makes sense, right? Right. You don't want to accidentally have something apply to things. But on the other hand, when this is an extremely unique and one off situation and you have the Trump attorney arguing like, look, this is never happened before in all our years. I think it is quite relevant to be like, yeah, because this We haven't Had a president this criminal before.

0:24:33 Matt: Sure. And Nobody has actually tried to overturn an election in any way. That's just not happened. So,

0:25:00 Thomas: I don't know, I heard something about Rutherford B. Hayes in there, I don't know what that was about.

0:25:05 Matt: I'll get to that, but it's certainly not relevant. Here's something that I never thought I'd see in a bookmark in a Supreme Court argument. Justice Sotomayor question, question. Assassination hypothetical. Let's go to that.

0:25:17 Clip: Nullum in se is a concept long viewed as appropriate in law, that there are some things that are so fundamentally evil that they have to be protected against. Now, I think, and your answer below, I'm going to give you a chance to say if you stay by it. If the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him, is that within his official acts for which he can get immunity? It would depend on the hypothetical, but we can see that could well be an official act. It could, and why? Because he's doing it for personal reasons. He's not doing it, like President Obama is alleged to have done it, to protect the country from the terrorists. He's doing this for personal gain. And isn't that the nature of the allegations here? That he's not doing them, doing these acts in furtherance of an official responsibility. He's doing it for personal gain.

I agree with that characterization of the indictment, and that confirms immunity, because the characterization is that there's a series of official acts that were done for it. No, because immunity says even if you did it for a personal gain, we won't hold you responsible. What do you, how could that be, that's an extremely strong doctrine in this court's case law, in cases like this. Gerald, here we go back to Justice Thomas's question, which was, where does that come from, seal?

0:26:01 Matt: No.

0:27:05 Matt: He's really struggling there because there's no answer. What he's looking for is absolute immunity for the president. Absolute immunity means you can't even be charged with a crime, right? Versus qualified immunity, where maybe you and that's what police officers have, as we know.

0:27:15 Thomas: You can beat a guy to death, yeah. I haven' t what

0:27:17 Matt: Right. And then we can take a look at it and see maybe if it actually is something that a reasonable person would know you're not supposed to do on the job. And this argument progresses, Sauer does actually back down a lot. And I think he actually gave up a lot of his argument by acknowledging, and as places in clips will probably get to you, that some of this was actually private. Some of the stuff that's charged in the indictment was definitely private. And there's an open question about whether maybe Jack Smith could just tailor this indictment down a bit, maybe just pare down some of the things that look more like official acts, like talking to the vice president or talking to their elected leaders, and just just focus on all the stuff he was doing as a candidate, which were clearly not official acts. That's an open question about something that Smith could do if this goes the wrong way. But very quickly, let's just take a look at Justice Alito's defense of SEAL Team 6, because I thought that was kind of funny.

0:28:01 Thomas: A dork.

0:28:07 Clip: Team six, and I, I don't want to slander SEAL Team Six because they're, no, seriously, they're honorable, they're honorable, uh, officers, and they are bound by the Uniform Code of Military Justice, us, not to obey unlawful orders, but no, I think one could say that it's not plausible that that is legal, that that action would be legal. And I'm sure you've thought, I've thought of lots of hypotheticals, I'm certain you've though of lots hypotheticals where a president could say, I am using an official power, and yet the president uses it in an absolutely outrageous manner. That is when objective determination may well be an interesting, interesting, uh, approach to take, so

0:28:50 Matt: He is saying, he says directly at one point that we can't prosecute presidents because then they'll get worried, they'll be prosecuted by the next guy, and they'll never leave office. So the way we defend democracy is making sure that we never have people prosecuted, which is a little backwards, I'd have to suggest. This idea that on top of that, if we bring this approach that as long as we never prosecute people, then the law will be upheld. If we don't ever prosecute people, then they will always issue lawful orders. And if they do issue unlawful orders, that SEAL Team 6 or whoever won't follow them. I mean, this is really rosy stuff. Is not how any of this would play out if you gave the president that kind of authority, especially a person like Trump. I think we all know that, except Samuel Alito, apparently.

0:28:59 Thomas: Yeah.

0:29:29 Thomas: It There's no logic whatsoever to this. It's all special pleading. It's all, "Well, find a way to do this, and maybe here's how it'll work out." Is there a principled reason for any of it that I can ascertain?

0:29:40 Matt: No.

0:29:41 Thomas: And then nothing in the, any of the text, I didn't hear much text, if any, text about anything from anything in this. Really?

0:29:48 Matt: Well, there's not a lot of text to work from. Precedents, and I should talk very quickly about the precedents that actually do exist, because they're going to come up a little bit in this argument. In this argument, there are not very many precedents because obviously former presidents have not been charged with very many things. The DC Circuit said below, the question of whether a former president enjoys absolute immunity from federal criminal liability is one of first impression.

And let's be thankful it is because we made it this far without having to consider this question, I guess. The closest thing, of course, we had was Richard Nixon, who was previously considered to be a bad and corrupt president before we had this one. In that case, obviously, we know the basic details that Nixon was trying to stop the tapes from being released that would basically do him in, tapes that showed he was being Extremely corrupt. In that case, a unified court said, "The separation of powers doctrine cannot sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances." So you'd think that begins to answer our question right there. But there are other questions about previous, former presidents and about the limits of their liability, a couple of them involve Trump, because Trump is just making law left and right.

In 1984, we did have, Nixon was sued by, I believe, a former Air Force person, someone who's concerned about losing a job, and they found the president was not civilly liable for acts within the quote-unquote outer perimeter of presidential duty, you're going to hear that come up a lot, and of course that was a civil case, and the Supreme Court found in 1984, I think pretty reasonably, that the president has to have absolute immunity from civil suit from decisions he made while he's president. I

0:30:26 Thomas: Hmm. Yeah.

0:31:11 Matt: Mean, that just makes sense, you Can't have You know, everybody in the country trying to see the president for something they think was done wrong, that's a little different from crimes he personally committed.

0:31:12 Thomas: Sure. Sure. Even that also, he's only immune while he's in office, right?

0:31:23 Matt: He had absolute immunity from civil suit forever. That's the Nixon v. Fitzgerald holding. But

0:31:27 Thomas: But as long as it's part of his actual official duties, because wasn't, had to go through all that, right.

0:31:29 Matt: Right. Yeah, That is what I was going to say. So Clinton v. Jones was not about official acts, obviously. It was things that happened before he was president. And in Clinton v Jones, they found that he can be sued while he is still in office because we can't have things held up. Back in 1803 in the Burr case. And why the Burr case isn't mentioned here more, because Aaron Burr was the vice president. He wasn't the president, but there was no question at the time that he could be charged of treason. He was charged with treason for trying to start his own country, which is a little more extreme. He did have a whole military at his command, a little more extreme than what Trump was trying to do here, probably the closest analogy that we have.

So that wasn't him as the president. In that case, Jefferson was trying to fight a subpoena and the court found that he had to release documents, things he knew, and testify. And in Trump v. Vance in 2020, A sitting president was found not to be immune from criminal process because, of course, that was Cy Vance of New York trying to get tax records out of him, as they're trying to find a way of prosecuting him in New York. So just about everything I just said, right up to Blassingame v. Trump, and also in 2020. That's really important here. Blassingame is a civil case, and that was finding that a candidate seeking re-election is not performing official duties.

This is an important distinction. That was a D.C. Circuit case as well. There was a suit brought by Capitol Police and some other people who were injured during January 6th who had various harms. They found that when a first-term president opts to seek a second term, his campaign to win re-election is not an official presidential act. And I think that really should command a lot of what goes on in this case, too. Those are about all the precedents we're looking at in this. So anything else that they have to work from is just, well, vibes as always.

0:31:32 Thomas: Okay. Right. Yeah. Right, geez.

0:32:55 Thomas: Think what's frustrating about this is the idiot for Trump's side makes it seem like what has been happening for 250 or odd years is presidents have been just like ordering assassinations of political opponents and doing all this stuff and they've been getting away with it, and only now does the woke left want to try to like hold a president accountable or something, whereas it's again it's pretty vital, it seems to me, context to be like, "Yeah, it's because no one's ever done this before." Like, it's not that you had some special arrangement where presidents were under the understanding that they could kill a guy just for fun and wouldn't be prosecuted, and that was that was like crucial to the operation of president, like that was, and now it's that's all going to be blown up. It's so misleading, uh,

0:33:06 Matt: Yeah, yeah, yeah. Let's take a look at Justice Kagan's question. And again, something else I never thought we'd see in the Supreme Court. Bookmark name is Orders Military to Stage a Coup Hypothetical. This is after the assassination hypothetical.

0:33:49 Clip: A president sells nuclear secrets to a foreign, an adversary. Is that immune? That sounds like similar to the bribery example, likely not immune. Now, if it's structured as an official act, you'd have to be impeached and convicted first before... What does that mean, if it's structured as an oficial act? Well, I don't know in hypothetical whether or not that would be an official act. You'd probably have to have more details to apply the Blassingame analysis, or even the Fitzgerald analysis that we've been talking about. How about if a president orders the military to stage a coup?

0:34:23 Clip: I think that, as the Chief Justice pointed out earlier, where there is a whole series of, you know, sort of guidelines against that, so to speak, like the UCMJ prohibits the military from following the plane from the unlawful act. If one adopted Justice Alito's test, that would fall outside.

Now, if one adopts, for example, the Fitzgerald test, that would be advanced, that might well be an official act, and would have to be, as I'll say in response to all these kinds of hypotheticals, has to be impeached and convicted before it can be criminally prosecuted. But I emphasize to the court that... Well, he's gone. Let's say this president who ordered the military to stage a coup, he's no longer president. He wasn't impeached.

He couldn't be impeached, but he ordered the military to stage a coup, and you're saying that's an official act. I think it would depend on the circumstances where there was an official act. If it were an official, again, he would have to be. What does that mean? Depend on the circumstance. He was the president. He is the commander in chief.

Um, he talks to his generals all the time, and he told the generals, "I don't feel like leaving office, I want a stage of code." Is, is that immune? If it's an official act, there needs to be an impeachment conviction beforehand, because the framers viewed the way, that kind of, if it is an official, official act.

0:35:40 Clip: If it's an official act, it's a piece of an official on the way you described hypothetical, it could well be. Right, I just don't know. You have

0:35:40 Thomas: Does

0:35:49 Matt: Just twisting in the wind.

0:35:50 Thomas: My God. So this is a good example of why this was so hard to follow. Can you translate a little bit? Oh, if it's based on this test it might be a thing, if it's Alito's proposed test it's a whatever, it's just like, I don't know what any of those are, what

0:35:50 Matt: Yeah.

0:36:01 Matt: He's really trying to fine tune this because he does not want to have to say that he be held responsible for anything. The Blassingame and the Fitzgerald test are both about civil liability, so they don't really even apply here anyway. But the Blassingame though, has a pretty good analysis. The D.C. Circuit talks about when something is outside the outer perimeter. And that's how they get to the conclusion that when somebody is running for president and they're running a campaign, that that is officially private stuff. It's outside the official act. And it's a pretty Good Rundown. I think that the court probably would do well to adopt some of it, at least. Again, it does apply in civil context, which is going to be a very different analysis from whether he's criminally responsible.

0:36:01 Thomas: Yeah, Okay, That's a key that I might have just kind of forgotten about, is like, is, tell me how this already worked, Matt, if you don't mind, let's say, brother, I'm gonna put you through a Sonia Sotomayor hypothetical or a Kagan hypothetical of that, now, um, right, president does something that still the president, and he personally kills a guy, nothing to do with the presidency, what, this case, like, what was supposed to happen in that case? Okay.

0:36:58 Matt: I think the Office of Legal Counsel, I mean, again, this is according to Brett Kavanaugh. You should never be prosecuted while you're president. And according to, I from understanding Sauer's argument correctly, he should be impeached for that, for killing a guy and convicted and then prosecuted. I would argue that what should happen is if he just kills a person in cold blood as a private citizen, that he shouldbe prosecuted immediately. I don't see any reason not to.

0:37:20 Thomas: I was about to get mad for you not answering my question, then I realized the problem is we just don't know because that doesn't happen, is that what it is, like, just okay, okay, so I understood, understood, so now I'm, I I really want to get an understanding of what this was like before, this is going to ruin it, you know what I mean? So like, so I get the challenge though, if we don't have precedent for a lot of this, but based on the precedent we do have, okay, now it's the president publicly someone while president, and I think we have some analysis of that, right? And it's like, you're liable, but that one, the trick was, can you you be sued while you're in office, or do they have to wait until you're out of office? What goes on

0:37:24 Matt: No, never happened before.

0:37:56 Matt: Yeah, That's the Clinton v. Jones situation, except, of course, that was stuff that happened beforehand, uh, in that case. So this is the E. Jean Carroll situation, right, because Trump was actually president when he did that, and that was allowed to proceed while he was president because those were definitely not presidential acts. He was actually trying to get the government, I think he did for a while, he's getting the government to pay to defend him, government, uh, lawyers, which is absurd.

0:38:00 Thomas: There? Okay. That's what, yeah, I was trying to get at that.

0:38:14 Thomas: Right.

0:38:14 Matt: Um, yeah, I mean, we already know because that did happen, unfortunately, yeah.

0:38:14 Thomas: That's right. Right, right. Okay, so then the other wrinkle this might be a straightforward one. He does something as president that's totally in line with his duties, like whatever it is. Just maybe to make the examples more salient, it's Joe Joe Biden. He issues an executive order to, let's dreamers a chance to stay in the country a little more. And some Republican asshole sues him civilly saying like, well, now my business is blah, blah, you've committed some civil wrong against me. Now that's just like no go, right? You're just like, F off. You're not allowed to do that.

0:38:44 Matt: That's Fitzgerald, that's just absolute immunity. Yeah, go anywhere. But interesting, Gorsucha raises a number of hypotheticals that are going along the lines of what you're talking about. And let's go to President Leads a Sit-In.

0:38:56 Clip: For example, let's say a president needs a mostly peaceful protest, test, sit in, in front of Congress, because he objects to a piece of legislation that's going through, and it in fact delays the proceedings in Congress.

0:39:13 Thomas: Here we go, God.

0:39:14 Clip: Now, under 1512(c)(2), that might be corruptly impeding an official proceeding. Is that core, and therefore immunized, or whatever word, euphemism you want to use for for that, so not core, and therefore prosecutable, without a clear statement applies to the president. It's not core. The core kinds of activities that the court has acknowledged are the things that I would run through the Youngstown analysis, and it's a pretty small set, but things like the pardon power, the power to recognize foreign nations, the power to veto legislation, the the power to make appointments.

These are things that the Constitution specifically allocates to the President. Once you get out... So a president then could be prosecuted for the conduct I described after he leaves office? Probably not, but I want to explain the framework of why I don't think that that would be prosecution that would be valid. First, I think you need to run through all of the sort of normal, uh, categories of analysis. Is there a serious constitutional question that's posed by applying that statute to the president?

If so, then you may well default to it does not apply. At least on that, that was my question. Yes. And you said it fell outside that core, we'll call it immunity for simplicity's sake. Yes.

0:39:21 Thomas: This Asshole of

0:40:45 Clip: There's a separate category. So why couldn't he be prosecuted for leading a civil rights protest, best in front of a Capitol, that delays a vote on a piece of important legislation. So I think what you need to do is run through all of the very President-specific protective layers of analysis. So one of them is whether the statute would be construed not to apply to his conduct, even if it's not part of that small core of things that Congress can't regulate at all.

0:40:56 Thomas: Course such is such an asshole Sure.

0:41:15 Clip: If

0:41:15 Thomas: Matt, let me make sure I understand, and then look, I just want to make sure I understand. And if I understand correctly, I want to make sure everyone else understands the level of assholery we're dealing with here, I correct, please, please do not let me overstate anything that at all times, I always want you to correct me if I'm getting something wrong, but one of the major problems with the assholes of the court in that exact case that he's referencing, which is the, Jan 6 case, where it's like, well, could he be guilty if, if he, you pulled a fire alarm or maybe if you did so-and-so, and it, and it's slightly delayed proceedings by one minute, couldn't even, and that we're like, yeah, but again, the, the great response by, I think, Prelogar was, "Okay, but make the analogy actually analogous."

Like, that means there was weapons, there was people, you know, like there's coordination, there is a, there, there are people who are there to do violence, there were people killed, there are people shot, they're like, actually do the analogy and show. And again, this is the Jan 6 case, and that was so obvious to me, and it was so completely trying to confuse the issue with this nonsense.

0:42:18 Matt: Yep.

0:42:18 Thomas: Sense. And then here we are in this separate, and I guess related, but like separate case where Gorsuch, in an effort to be an asshole and to confuse the issue more on that Jan 6 case, it seems to me, uses his stupid understanding of how that law would work and but forces the the guy who's on the government side this time to like stipulate you that like, pretend I'm right about my stupid analysis of the Jan 6 case, and then use it in a hypothetical. It's such an asshole thing to do. Am I getting that right? Or am I overstating it at all?

0:42:46 Matt: Yeah Yeah. No, Clearly this is still on his mind. It's almost very similar to hypothetical he gave during the Fisher case that we've discussed. And he is still thinking about things that have nothing to do with what actually happened on January 6th and misdirecting in a bad faith way. I think this is really a bad faith argument.

0:43:08 Thomas: Yeah, double bad. The other one already was. So like just using that hypothetical at first was, and now you're like doing an inception of bad faith where you're using your bad faith thing in a different case.

0:43:09 Matt: Right. He's doubling down on it. Yeah. Yeah,

0:43:20 Thomas: Like, goal should be, no matter where you are, in my opinion, it seems to me, no mater where you would hypothetically be in your opinion, in oral arguments, you would want to make things more clear, wouldn't you?

0:43:20 Matt: I

0:43:30 Thomas: Wouldn't You like want to make sure we're all on the same page? Even if we disagree maybe on where the law goes, you wouldn't want to do it on purpose to make thing more unclear by taking a thing that was previously unclear and using it and making someone answer your question based on it in another case that's unclear. That's just, like, I don't know what's happening.

0:43:30 Matt: Would hope.

0:43:47 Matt: And another thing that conservative justices traditionally like to do is narrow the question as much as possible. But of course, this Supreme Supreme Court does justice, does not do that. The Supreme Court does not does that. They love to just go wherever they want to go to get to where they need to be. And that's what he's doing here. Let's talk about what is actually happening there, because government argument is essentially that there's a core, protected of functions that are immune, that essentially are just, me, you cannot bring criminal statutes into them at all.

And they're using the Youngstown Sheet and Tube analysis, which I'm sure has come up on LA before, a very important case from 1952 when Truman seized the steel mills during the Korean War. There's a very famous concurrence from Justice Jackson, and Jack Smith leads his brief with it because it's so important to establish that the separation of powers here so clear that there's no constitutional right to immunity. That's just not something that's in the Constitution.

You can't read it into the Constitution, and in the Youngstand analysis, there's three categories, essentially, of how you can look at the president's authority toward Congress. And Congress matters here because we're talking about violations of law passed by Congress. And so you've got the cases in which the president is acting with express or implied authority from Congress, cases in which Congress had thus far been silent, the zone of twilight, very famous from his concurrence, cases in which the President was defying congressional orders.

And in this case, you have a president who's trying to overturn an election. So he does not not get any kind of deference here. They're not supposed to give you any kind of separation of powers magic. You're supposed to actually look at what the guy did, and that's not what Miller-Gorsuch or anybody else wants to do.

0:43:52 Thomas: So That Have we covered kind of the landscape of how it used to work? And so, you, so where I was in my grilling of you, it was, So the stuff that's like actual official duties that someone argues is a civil wrong, that's nowhere. Now what about, now, now, the criminal, so, so does that question from Gorsuch speak, ignoring his bad faith troll. Now, the question of, you've done an official act, but it's arguably criminal, is that what we're here for? Is that just unclear, or is that something that was kind of clear and they're just being obtuse about it? That's what I don't totally understand. I'm just, I just want to make sure.

0:45:23 Matt: Well, that's what I was saying about Youngstown. I think that's what the government is saying about Youngstown too, is that leading a sit -in in Congress is not clearly within the president's duties. Like that's just not something that, you know, like trying to stop legislation from passing. So you can make an argument that that is outside of his duties and that's, you Know, not a core function and potentially is, you know, open to prosecution.

0:45:59 Thomas: Right. Yeah, sure. But it also wouldn't be prosecuted because it's nothing, but I don't t know.

0:46:10 Matt: Of course it's yeah.

0:46:11 Thomas: But let's say it is something that's in his duties and it's criminal.

0:46:15 Matt: That's actually what the Alito hypothetical is much more helpful for, a little further down. Let's just play that very quickly.

0:46:19 Thomas: Oh, perfect.

0:46:19 Matt: Uh,

0:46:20 Clip: Mr. Sauer and others have identified events in the past where presidents have engaged in conduct that might have been charged as a federal crime. And you say, well, no, that's not really true. This is page 42 of your brief. So what about President Franklin D. Roosevelt's decision to intern Japanese Americans during World War II? Couldn't that have been charged under uh 18 U.S.C. 241, conspiracy against civil rights? Today, yes, given this court's decision in Trump versus United States, in which, uh, the, you know, Trump versus Hawaii, excuse me, where the court said Koronatsu is overruled. I mean, President Roosevelt made that decision with the advice of his attorney general, that's a layer, is that really true? I thought I, I thought Attorney General Biddle thought that there was really no threat of sabotage. How about J. Edgar Hoover? So I think that there is a lot of historical controversy, but it underscores that that occurred

0:46:20 Thomas: Okay.

0:46:54 Thomas: Good. Yeah.

0:47:13 Thomas: Hmm?

0:47:26 Matt: So,

0:47:26 Clip: During wartime. It implicates potential commander-in-chief concerns, concerns about the exigencies of national defense that might provide an as-applied Article II challenge at the time. I'm not suggesting today, but the idea that a decision that was made and ultimately endorsed by this court, perhaps wrongly, in the Koromatsu case would support criminal prosecution under 241, which requires, under United States versus Linear, that the right had been made specific so that there is notice to the president. I don't think that would have been satisfied. All right, well, we

0:48:03 Matt: Yeah, an interesting one, I thought, because I, I do think that it was criminal, of course I understand the argument, there's wartime, and you know, but there was an active debate going on, it wasn't like everybody was telling him to do that, as and Alito is doing some originalism there with FDR, obviously trying to get to what actually was happening, um, trying to save that one by saying that, and this is actually an interesting historical point and everybody's aware of this, but what he's saying about Trump v. Hawaii is that in passing, in dicta, the court appears to have overturned Korematsu, which was the case that upheld Japanese internment. So he's also throwing it back at the court and saying, well, that was the law for 50 years, that you guys thought it was fine that we did this, so you can't exactly prosecute somebody for it.

0:48:31 Thomas: Oh, that's right. Yeah. But, okay. OK, there's so much there that I'm positive I don't understand. And I have to return to my point of why are you trying to think make things more confusing? I just give me a hypothetical that's clean so that I can know how something's going to happen. I don'T because they're getting into the like, well, the attorney general advised. Well, I don't know if back then the attorney. It's like, why are we talking about that?

0:49:01 Thomas: There's no way that fundamental to this question is, did the attorney general in 1940, whatever, believe that this was fine or not? Not like, okay, give me an effing hypothetical. Say he, future president locks a bunch of people up due to their, just their, ethnicity you and tell me whether or not you want in the, this hypothetical, whether you want The Eternity General to have endorsed it or not. And just give me that clean thing so I can understand what's happening.

0:48:44 Matt: Mm -hmm. Yes. Yeah, yeah. Nope.

0:49:26 Thomas: It's, it's confused at every single turn. And so I don't actually know. Now that That was an interesting, you know, I take your point that it's an interesting historical example. But what was I supposed to take from that exchange? What do you take fromthat exchange? Even know.

0:49:39 Matt: And it has nothing to do with January 6th. And again, as the government said, it was a wartime thing, which is always going to be much harder to prosecute anyway. Anyway, but he's just trying to make the point about how, well, do we really want to open the door to prosecuting the president? Because look at that. Here's a decision that was very controversial. And the next thing he says is, I think, possibly the most ridiculous thing he said, which is hard to narrow down. But what's required of a stable democratic society? Just a few down, a

0:50:01 Clip: Just a question about what is required for the functioning of a stable democratic society, which is something that we all want. I'm sure you would agree with me that a stable democratic society requires that a candidate who loses an election, even a close one, even even a highly contested one, leave office peacefully, if that candidate is the incumbent. Of course. All right, now, if an incumbent who loses a very close, highly contestant election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a

0:50:20 Thomas: January 6th. Yeah.

0:50:49 Thomas: Oh, my God.

0:51:03 Clip: Cycle that destabilizes the functioning of our country as a democracy? And we can look around the world and find countries where we have seen this process, where the loser gets thrown in jail. So I think it's exactly the opposite, Justice Alito. There are lawful mechanisms to contest the results in an election, and outside the record, but I think of public knowledge, Petitioner and his allies filed dozens of electoral challenges, and my understanding is lost all but one that was not outcome determinative in any respect. There were judges that said in order to sustain substantial claims of fraud that would overturn an election result that's certified by a state, you need evidence, you need proof. And none of those things were manifested. So there's an appropriate way to challenge things through the courts with evidence. If you lose, you accept the results. That has been the nation's experience. I think the court is well familiar with that. Thank you.

0:51:03 Thomas: Yeah.

0:52:08 Matt: Thank

0:52:09 Clip: So

0:52:09 Matt: You. There we go. So I think more people should start their responses with, it's exactly the opposite of that, Justice Alito. That's a great start.

0:52:15 Thomas: Yeah. Is a bootstrapping snake eating its own tail thing. So here's the thing, Matt. Let's let's make sure we all understand this. We determine if the president, when he's an ex -president, should be able to be prosecuted for crimes he committed while president, correct? Okay, and whole premise here is, well, let's say he thinks he should have won, and let's says he wants to steal an election. Election, well, under your theory, if going to be afraid that he'll get prosecuted for stealing an election, and so therefore he'll try to steal an election so that he doesn't become ex-president. Why don't

0:52:18 Matt: Yes. Correct. Yeah. Yeah, no, one

0:53:02 Thomas: You ask it the other way? Okay, but it's for crime. So, um, as this guy pointed out, it's actually the opposite. If you're worried about being prosecuted for stealing an election, election, after you're out of office, maybe you won't try to steal an election. It's so stupid

0:53:15 Matt: Would hope. And this really brings out I wanted to play that in conjunction with the FDR thing, because for a minute there, I thought he was getting it. I thought she was understanding that FDR did actually overstep and did potentially commit a crime. And under today's standards, you know, like, that's like it was a tremendous civil rights violation and a violation of a criminal statute. But what he was saying was, we have to protect FDR and our ability to intern Japanese people at all costs. I think that's really what he's trying to get at.

0:53:32 Thomas: Yeah. No kidding. Yeah. Is this thinking like, well, I know the the libs love FDR because of, of a New Deal or something, like, so they're not gonna want, what if we go lock up his corpse, they're gonna be mad, no, I don't care, air. It's fine. Yeah. Lock him up. Dig him up, dig him up and put him in jail.

0:53:44 Matt: Right. Right. What? Let's not do internment camps again, please. Like, maybe discourage that.

0:53:54 Thomas: Sure. Yeah, that's fine. And if anyone does internment camps, they should be locked up. That'd be a great idea.

0:54:01 Matt: Let's deter that. That, yeah, um, enough of Alito, uh, it's, it was already enough of Alito.

0:54:05 Thomas: God. Yeah sorry. I get a little, he's the worst.

0:54:05 Matt: Yeah. Uh, So there's a bunch of stuff from Kavanaugh, and I'm not even going to play the Kavanaugh stuff. It's not even worth dignifying, honestly, and we don't have time for all this. But Kavanaugh is almost just about trying to say that if the, the law doesn't say that it applies to the president, it doesn't apply to the president. He's trying to say that every federal law should come with a stamp, as Sotomayor says, that can apply to the president. And he's saying that this clear statement rule, which has nothing to do with this particular question, should make it so the president is unnoticed, that he can't, I don't know, rob banks or transport falcons between state lines or whatever federal crime you want to pick. It's much, everything that Kavanaugh says in this entire argument is pretty dumb, honestly. It's pretty stupid.

0:54:47 Thomas: Yeah. Was there some real doctrine there that was like, if something could be interpreted to not apply to the president, then you don't. What was it? That a real thing or what is that?

0:54:57 Matt: Is not usually interpreted as to whether a criminal statute applies to someone or not. I think we all understand that we can't do crimes, and that's the general tenor of the government's argument, is we understand our basic duty is not to do crimes. Trying to make a more subtle about how there are some things that could cross the line that could be kind of gray. The president really doesn't know if he's going to be subject to or not. But I just, I don't know. I still think that the DC Circuit's very clear statement should apply and should be upheld. Let's go quickly to Amy Coney Barrett, because she has a really good exchange where she kind of nails this down with

0:55:03 Thomas: Was

0:55:29 Clip: And since you bring up the private acts, this is my last question. So, I had asked Mr. Sauer about on page 46 and 47 of your brief, you say, "Even if the court were inclined to recognize some immunity for former president's official acts, it should remain for trial because the indictment alleges substantial private conduct." Yes. And you said that the private conduct would be sufficient. Yes.

The special counsel has expressed some concern for speed and wanting to move forward, so, you know, the normal process, what Mr. Sauer asked, would be for us to remand if we decided that there were some official acts of immunity and to let that be sorted out below. It is another option for the special council to just proceed based on the private conduct and drop the official conduct? Two things on that.

First of all, there's really an integrated conspiracy here that had different components, as alleged in the indictment, working with with private lawyers to achieve the goals of the fraud, and, as I said before, the petitioner reaching for his official powers to try to make the conspiracies more likely to succeed. We would like to present that as an integrated picture to the jury, so that it sees the sequence and the gravity of the conduct and why each step occurred.

That said, if the court were to say that the fraudulent electoral scheme is private, reaching out to state officials as a candidate is private, trying to exploit the violence after January 6th by calling senators and saying, "Please delay the certification proceeding," is private campaign activity, we still think, contrary to what my friend said, that we could introduce the interactions with the Justice Department, the efforts to pressure the vice president, for their evidentiary value as showing the defendant's knowledge and intent, and we would take a jury instruction that would say you may not impose criminal culpability for the actions that he took, however, you may consider it insofar as it bears on knowledge and intention.

That's the usual rule with protected speech, for example, under Wisconsin versus Mitchell. My friend analogizes this to the speech or debate clause. But we don't think this feature debate clause has any applicability here. It's a very explicit constitutional protection that says senators and representatives shall not be questioned in any other place. So it carries an evidentiary component that's above and beyond whatever official act immunity he is seeking.

And the last thing I would say on this is we think that the concerns about the use of evidence of presidential conduct that might otherwise be official and subject to executive privilege is already taken care of by United States versus Nixon, that balances the president's interest in confidentiality against the need of the judicial system for all available facts to get to the truth. And once that has been overcome, we submit that evidence can be used, even if culpability can't rest on

0:58:26 Clip: It. Thank you.

0:58:26 Matt: Makes sense. That all makes sense, I think.

0:58:29 Thomas: It does.

0:58:29 Matt: Yeah, well, I know. I know there's another long back and forth with Sauer before where she gets him, like, really gets him to acknowledge that most of the stuff in the indictment is actually private, which is, I think where they should lose, like right there at that point. And then she's turning it around back in the government and saying, so if this is all private, how do you handle it? Because there's also some public aspect to it, right? He's saying, you know, there's still communications with the government.

There's still things that you're doing in your public capacity to further the conspiracy. And I think he's threading the needle pretty well. And I think the overall, the government's argument, which I'm not usually in favor of, but he's saying the status quo works pretty well, and you know it for this purpose it does. We do everything that we have protects the president more or less, as long as he's not doing things that are actually criminal. And that's what what he's trying to say. Here's how we can use all of this without having to worry about any of the stuff we're talking about. So this argument could have been, I don't know, 35 minutes,

0:58:30 Thomas: Okay. Yeah.

0:59:20 Thomas: But is that, so I didn't know again, this was the case. I know this often happens with this current awful Supreme Court is that the that, you know, you and I tend to agree with have to really compromise their arguments maybe in case, you know, that struck me as like, well, wait, why should they have to drop the stuff that might be official acts from the indictment? Like, is that a good thing? I don't understand.

0:59:40 Matt: Well, she's saying, suppose basically we find that public acts are, and he's finding a way to pull it out. But no, that's not great. Should just agree with what the DC Circuit said. But at the end of the day, real the thing I think that's going to happen here is what Roberts was saying is that the DC Circus decision was very broad. And I agree, It was kind of broad. It did get some criticism at the time for not delineating things enough. And Roberts is saying, let's kick it back and make them come up with what they think in the indictment is private versus official acts.

0:59:43 Thomas: Yeah. Okay.

1:00:07 Thomas: I don't understand, because, because they're deciding that official acts are fine, or is that already how it is? I don't know, that's why I don't, I was trying to understand earlier.

1:00:14 Matt: Going to find some level of immunity for official acts, they're gonna find some way to, and even the government is saying that there's a core sort of set of official acts that are immune. Immune.

1:00:14 Thomas: Sure.

1:00:23 Thomas: But when they're part of a coup, I just feel like definitionally wouldn't they be not official acts but

1:00:26 Matt: Right. Well, that's, again, like I said, they should have just affirmed the DC circuit, which said all of this stuff was private. It was all done in the course of his campaign. Not agreeing with the approach they're going to take. I'm just saying, I think we can see some signposts there.

1:00:39 Thomas: They're going to kick it back, as you say, and have them dilineate what's an official act in this and what's not. And are you saying the court has to do that? Are you saying that they're going to make Jack Smith do that well?

1:00:48 Matt: Jack Smith could certainly cut it off at the pass and just try to clean up the indictment to do that. But they're saying they're gonna have the lower court, I think the district court, go through and try to figure out which things from the indictments can be prosecuted and which can't, based on whatever theory of immunity they're coming up with.

1:01:02 Thomas: OK, I guess that's the key, because Because when you said the government guy even acknowledged there's some official acts, well, sure, I would agree with that. That sounded pretty limited. Like, list of things that are official acts by a president in

1:01:13 Matt: I sorry, Yes, the core functions, such as the pardon power and communicating with other countries, and all the things that are sort of there in the Constitution.

1:01:16 Thomas: Yep. Yep. Okay, so why would any of that be in the indictment is what I want to know.

1:01:23 Matt: It wouldn't.

1:01:23 Thomas: Is there any part of the indictment that involved pardoning people, talking to other countries? No, seriously, like I genuinely, that's why I'm confused by kind of what you're saying is because I you took this on, they're like, all right, we got to sift out the official acts. Based on what I heard from that guy, I don't know why any of it would have been official acts.

1:01:29 Matt: Yeah, no, I don't either. And I think that this is just delay in the end of the day. I mean, the Supreme Court really wants to set some kind of rules, as Gorsuch said, for the ages so that anytime this comes up again, we'll have a clear rule, but I think they really just need to settle this one and they need to get this trial going, but they don't want to do that. I think that's really what our problem is here.

1:02:00 Thomas: Right, so that's one possibility is we're just trying to waste time here. It makes sense because if they send it back and the court's like, all right, well, none of it is official acts, okay, cool, I that does delay, I don't know that that's that doesn't seem to me what the court wants to do. I could be wrong. Is the other possibility that they are, want more things to be considered official acts and that's gonna be kind of how they they make this work, like, it's going to be a way broader definition than the one that we just talked about? Well, that you the think Supreme the Court will write that in this decision, maybe, to remand, yeah.

1:02:23 Matt: It'll be broader than the government's, yeah, I think so. Think they'll give them some instructions about what they consider to be protected and immunized. Again, don't seem to have any interest on focusing on what's in the indictment or what the facts are in this case. So I think They just want to wash their hands of that.

1:02:39 Thomas: That would have been good, they could have, you know, here's a great way to have done this, sorry to place Monday morning Supreme Court justice, but like, maybe talk about the actual indictment and be like, give me an example of something in here that was an official act and then they could argue about it all

1:02:39 Matt: Sure would have.

1:02:49 Matt: Right. And Barrett did that, and Jackson did, too. They both got into it with Sauer, and he really had to back down on a lot of these things. And like I said, he gave away most of his case by acknowledging that most of the indictment is not official acts. So I agree, and I hope I had made that point from the beginning, that this is something that is not that complicated. It's not two hours and 40 minutes worth of argument complicated. And

1:03:13 Thomas: Not 70 minutes worth of opening arguments complicated, except they are confusing it. And I appreciate going through this. Sorry, if maybe this stuff is obvious to you, but I was so confused by this proceeding to an extent that I'm not normally. Like, I watch a lot of oral arguments. I've never been more confused. And I was trying to pinpoint why. And, I think it's just, I don't know what the current law was. I don't know what they would want it to be. It was just crazy.

1:03:19 Matt: No, no.

1:03:36 Matt: Yeah.

1:03:36 Thomas: So, I'm glad to hear you say, though, it seems like some of the amount of that was on purpose for it to not make any sense.

1:03:36 Matt: Nobody knows. I think this is a point that I'd like to make more and more often, which is that a lot of these arguments that when you hear them and they sound a little wrong, they don't sound any less wrong just because a lawyer says them in fancy language in a brief or an oral argument. Mostly what you're going to get is obfuscation. And these briefings are just long, explanations about why the president should be above the law. And, for example, the fact that they continue to maintain this idea that you have to be impeached, convicted by the Senate, and then be prosecuted. And he's seriously saying that out loud as an adult to a room full of the justices in the land. It's incredible.

1:03:58 Thomas: Yeah. Yeah. Why would in the world would that be

1:04:18 Matt: There's no world that's true, even just no world. Reading the actual text of the Constitution, and I know people hate doing that, but it's saying that you can still be held liable afterward. He's trying to read it in a very different way. But it says, after you're impeached and convicted, you can still be held liable. And it contradicts the exact thing he's trying to say about double jeopardy, which the double jeopardty argument puts me into space.

1:04:18 Thomas: True?

1:04:38 Thomas: Was the other thing I was going to ask Matt. Didn't he say both of those things? All

1:04:42 Matt: Yes, he did. And he's He's trying to say that somehow, having been impeached and convicted, which the president wasn't, obviously, he was impeached, but even just having been impeached, that somehow double jeopardy attaches, when we all know that impeachment is a political and not a criminal process and has nothing to do with double jeopardty, and the Constitution is telling you right there that he can still be held liable criminally.

1:04:43 Thomas: Right.

1:05:02 Thomas: So, all that's insane. I would like you to bottom line us, if you don't mind. Here's what I don't know. So I know that's insane. Here is here's what I don't know. Saw so many headlines about how the Supreme Court, as I started out with, is, is going to hell. And I agree, but I do not know that I have a solid grasp of what they're going to do here. You give us some predictions and we're going to hold you to them, but we also understand that, you know, it's hard to predict these people, especially, but, like, it'll I, just help me to understand kind of what you saw here. You know, know what I mean, like, what of all this is decision going to involve anything about that double jeopardy thing, where you where you can't be charged again if you were impeached, or the of the the opposite, the thing which is you have to have been impeached and convicted for something to be be charged. Is this going to touch that at all?

1:05:35 Matt: No.

1:05:44 Matt: No, I mean, you can tell because they left that question out of their questions presented when Trump wanted to put it in as something they were arguing about. They didn't want to hear about that. That's not something that they are taking seriously. Nobody should.

1:05:53 Thomas: That's right. Remember And, that now, but in the oral argument, when you hear the guy using it a million times, I'm like, oh, so is that on the table? I couldn't remember, but okay. So he's just, yeah, even though it's not being answered.

1:06:01 Matt: Yeah. He briefed it. So yeah. Right.

1:06:05 Thomas: Okay. That, God, again, now I understand why I was so freaking confused. Okay. So you don't think they're going to mess with that. What do you think this court is likely to do? You've, you've, so you've already teased that, but just make it very clear for us.

1:06:06 Matt: Right, yeah. No. I don't think they're going to find full immunity, just to begin with that. Because even Sauer, during his argument, backed down from that and said, okay, fine. He started saying there should be absolute full immunity. And by the end, he was acknowledging that there could be things that you could still be liable for. For me, I would just uphold the DC circuit and find there's no immunity for anything in the indictment and we move on, but they're not me. And they could have done that months ago. Think it's much more likely based on the way that Roberts was talking about it. And it seems most likely that Roberts will end up writing the decision. This is going to come out very late in the term. This is something I think he's going to feel like the chief justice has to write. It's one of those things.

1:06:46 Thomas: Yeah. Yeah, yeah.

1:06:46 Matt: Think, based on those questions, and even the way that that of last exchange was going there, I think they're going to find a way to send it back and clarify what in this indictment is private or not and clarify the standard. I think they're going to try to set some kind of basic standard about things the president can be prosecuted for or not. And they're going to do it in the name of looking out for future presidents and making sure that we don't have, you know, this, what Alito was talking about with the banana republic kind of prosecutions, you know, every other term of the next guy prosecuting the last guy. But, you know, uh, again, this is the kind of consequentialism that we have been talking about for a while, right? This is not necessarily relevant to anything. And as the government, I think very well points out, the law does protect the president for the most part, as long as the president is doing what the president's supposed to be doing. So, I think that that is more or less what's going to happen. I don't know, it's hard to say, but I

1:07:28 Thomas: Yeah. So.

1:07:32 Matt: Don't know, whatever's going to happen, it's going to take a long time. And we're not going to see a trial on this if Trump is elected.

1:07:38 Thomas: That's already mission accomplished, they can already hang that banner of, they've delayed the hell out of this, and

1:07:43 Matt: By putting this onto the last day of argument, and then no doubt I'm sure that decision won't come out until right at the end of June. So at that point, there's no way, because

1:07:51 Thomas: The process after that, like, how far are we from getting back to a trial?

1:07:56 Matt: Well, kind of said that there was another month or two of pretrial things that were going to happen. So

1:07:59 Thomas: But Isn't there another phase? Let's say they do what you predict, which is they, they send It back and they say, hey, you need to do another thing, you've remanded it, right? So wouldn't there be some process there that would take time, or

1:08:03 Matt: There'd There'd be a series of hearings at least, and motions, and there'd be a lot of back and forth, and I'm sure more appeals coming out of that, probably and back up to the court again sometime next year. So yeah, they had a perfectly good decision from the D.C. Circuit that they could have appealed, just as they had a perfectly good decision from the Colorado Supreme Court that they could have appealed, and they didn't do that either.

1:08:26 Thomas: I appreciate, uh, I squeezed some predictions out of you. And, uh, wow, that this, this thing sucked. All right.

1:08:32 Matt: Yeah, it really did. And it's just another thing where if you actually dig into it and you actually just pick up some of these rocks, there's not much under it.

1:08:39 Thomas: Well, I suppose we're out of time for that, um, anything else you want to make sure that the listeners take home from this?

1:08:45 Matt: I'm sure we'll be talking about it again when we have a bad decision.

1:08:48 Thomas: I'm excited to read the decision just a way it will make them, like, I'm curious for them to actually lay out, okay, what's an official act that now you can just do? Because I actually think that that sounds kind of difficult to me, right? I mean, that sounds hard to do in their way, you know, like where they want some things to be totally fine and others not. It seems like whatever they write down may be easy to poke holes in, but who knows?

1:09:03 Matt: Right. What I saw, the Blassingame case, which is the civil thing involving January 6th, I think that actually laid out a pretty good standard and I think they could borrow from that, but we'll see.

1:09:15 Thomas: Oh, All right. Okay, Matt, thanks so much. Suffered through these oral arguments so that you all don't have to, although I know many of you already did. Last question for you on this, if could rate the coverage, which has been very sky is falling on this, how would you rate, do you, do you agree with that or do you think that was overblown at all? Yeah.

1:09:33 Matt: I mean, from what I saw, I think it's pretty reasonable to say, why isn't the Supreme Court just stopping and saying, this can't happen, this just shouldn't happen again, let's send It back and make sure it doesn't? Agree with that. I think, as always, the media is looking for headlines, but I think that it's okay to be a little alarmist about this when they're being this blasé about One of the most important decisions I think they're going to have to look at in a long time.

1:09:41 Thomas: Yeah. Sure.

1:09:50 Thomas: All. Well, there you go, this court sucks, thanks so much for listening everybody, uh, the show patreon.com/law, and we're looking forward, by the way, reminder the show, the next episode will be a Thursday early a.m. show rather than a Wednesday early show because of the transcripts. The transcript schedule is now something we are very much dependent on in a good way. And so that'll be Trump trial coverage coming at you Thursday in the a.m. Can't wait. See you then.

1:10:16 Matt: All right, back at it. Thank

1:10:23 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.

1:10:40 Thomas: I do love Alito. He was like he, up saluted. He's like, can we play taps for a moment while I talk about SEAL Team 6?

1:10:46 Matt: Let's get the blue angels to fly over the Supreme Court and take a moment.

1:10:49 Thomas: OK. Yeah.