It Is Impossible to Be Too Alarmed About the Immunity Decision

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 1048. I'm your host, Thomas Smith. That over there is real-life attorney, haver of a useless job, Matt Cameron. Anything they taught you worth anything anymore? I don't know, Matt, I'm sorry.

0:01:02 Matt: Trying to go after the president. That would be a useless job at this point, but yeah. I am sitting within shouting distance of where the Declaration of Independence was read for the first time to New England and thinking a lot about the 4th of July today. It's the strangest 4th July I've had in a while, day the we're recording.

0:01:04 Thomas: Okay.

0:01:18 Thomas: What think my Fourth of July is, uh, is about what it is. Now it's something I completely forgot existed until all of a sudden I have to record and my kids are home for some reason, and so it's annoying an and an inconvenience, and then a bunch of people are going to blow a bunch of stuff up, uh, not only tonight, but last night and probably for three nights after, um, just for some region, and that's, uh, that's America, everybody, right?

0:01:42 Matt: Well, I do want to tell you what it means to me, because my walk to work, and I record here in the office, which is just around the corner from the old statehouse, where the Declaration of Independence was read for the first time. But the other reason that Americans might know about the old Statehouse, which was the oldest public building in Boston, is that it was the site of the Boston Massacre, and it was also the site for the trial for the Boston massacre, in which John Adams defended the soldiers. He said it was his best work, the man who had gone to become our third president. Before the revolution, at a time when the city was calling for blood for these soldiers, John Adams stood up and defended them and was able to prove that they were acting out of fear, that it was possibly self -defense, and they were all acquitted. And that, to me, is what this country is about. It's about the rule of law in the face of the mob.

0:02:03 Thomas: Right? Yeah.

0:02:21 Thomas: It's about people with weapons getting away with hurting people because they were afraid. I agree.

0:02:28 Matt: We're talking about that on Monday with qualified immunity. But now, you know what I mean. John Adams' celebrated founder of this country was a defense attorney who thought about due process in the face of the mob. And of course, we could argue the merits of the Boston Massacre. There's not enough evidence left really to know what happened.

0:02:34 Thomas: Yeah.

0:02:47 Thomas: Like whether the massacre was good or not, or the case.

0:02:50 Matt: But I guess those are the things I I was thinking about when I was walking in to record this today, as I was walking over the site of the Boston Massacre, walking below that balcony you know, just this morning they read the Declaration of Independence again to celebrate. We're going to be talking about some things that may or may not be consistent with the Declaration of Independence.

0:02:51 Thomas: Oh, yeah.

0:03:07 Thomas: Can just imagine a Thomas back saying, I read books. Do you have audible? And they're like, yeah, we're actually we're going to read it. Oh, well, this is great. That's awesome. Okay. I'll do some dishes or something while you're doing that.

0:03:19 Matt: Just to remind people too, just relevant portion I just pulled up here. History of the present King of Great Britain is a a history of repeated injuries and usurpations, all having a direct object, the establishment of an absolute tyranny over these states. To prove this, let facts be submitted to a candid world. And they go on to list facts which include refusing his assent to laws. One that I've always thought is interesting that people forget to talk about is endeavored to obstruct the laws of naturalization for foreigners, refusing to pass others to encourage their migrations hither.

0:03:45 Thomas: Wow.

0:03:46 Matt: Obstructed the administration of justice. He has made judge is dependent on his will alone. It sounds a little familiar.

0:03:50 Thomas: Wow. Who are they talking about?

0:03:53 Matt: He has excited domestic insurrections among us. So yeah, it's just a little too on point, I think, today. But

0:03:56 Thomas: Jeez. Well, we're going to get into Jokes it. Aside, I've genuinely, I mean, I'm often genuinely outraged by the court, but this is a new level. As immediately destructive as overturning Roe, which is probably the worst thing to happen in my life for the court I think, but in terms of just how stupid and outrageous and nonsensical and corrupt it is, it's right up there. It's right there with the best of them.

0:04:23 Matt: It is much part of the long-term conservative project in very much the same way that Roe and the overturning of Chevron, which we'll be talking shortly.

0:04:30 Thomas: We're going to get all the mad.

0:04:33 Matt: I am actually pretty upset, yeah.

0:04:34 Thomas: No. Matt, Matt, regiometer. We'll see how high that gets. It goes from 1 to 1 .03 is that meter. And we'll see if we clear that 1 .02 mark. All right. So after this break, which you can avoid at patreon.com/law, we'll to it.

0:04:38 Matt: It's bacon. Put it to the test.

0:04:56 Matt: I want to mention one other anniversary before we get started, because it is pretty significant. The 50th anniversary in this month of Nixon v. U.S., in which the Supreme Court unanimously, including a number of Nixon appointees, Chief the Justice of the United States released a decision unanimously on behalf of the court, and he worked very hard to make sure it it was unanimous decision, rebuking the president and saying he had to turn over the tapes, which of course effectively ended his presidency and forced his resignation and would have inevitably led to his impeachment. And that was a great victory for the rule of law in the United States. And that decision is mentioned in this decision by John Roberts, but he doesn't really explain how it fits in because he effectively...

0:05:17 Thomas: Oh.

0:05:29 Thomas: He Didn't start it with U.S. v. Nixon was wrongly decided from the beginning, because he might as well.

0:05:33 Matt: Yeah, he might as well, especially with some of the things he says about evidence that we'll get into, but that's been very much on my mind as well Because my naive take on this, and again, I wasn't totally serious about this when I said it, I will be clear.

But I said that it's possible that John Roberts, being who he is, caring the way he does about the institution of the court and about how they're perceived by history, I could see him doing like a Nixon 2, right? And just getting the court together to unanimously come back and say there's some immunity maybe, but the president does not have absolute immunity and we cannot say that he's allowed to do whatever he wants.

Very appropriate 50th anniversary of the Nixon decision, but they kind of went the other way. So let's talk about where this came from, just to make sure people are up to speed on how we got here to this immunity decision.

We know, of course, Jack Smith indicted Donald Trump at end of 2023 for a number of different things relating to his attempts to overturn the 2020 election, not just the acts that he took on January 6th in action as well, but the conspiracy essentially to put in a slate of false electors and to try to influence the vice president, among other people, conversations he had with the DOJ in which he was clearly acting with corrupt intent.

So these were all in front of Judge Tanya Chetkin in DC District Court, and he filed a motion to dismiss in which she raised the idea that he was immune from prosecution, effectively saying that he absolutely immune from persecution because all of these things were within his his official acts as president, and they couldn't be questioned.

Tanya Chutkan wrote a very reasonable, I think, 48 -page decision in she found that there are enough protections in place already for federal criminal prosecutions, that it's not the same as in the concerns raised in the other Nixon Supreme Court case, Nixon v. Fitzgerald, in which the Supreme Court found that the president couldn't been civilly sued.

They didn't want people coming out of nowhere to just ruin the president's life by suing him over all kinds of things, which makes a lot more sense than saying that he can't be rescued.

0:05:33 Thomas: Yeah.

0:07:18 Thomas: The president has a hard enough life as it is, you know. Just, yeah.

0:07:20 Matt: That's true. You can see the argument about the civil suit, right? That you don't want everybody who feels like they've been aggrieved by a presidential action to be able to sue. That has always made sense to me. And there's essentially absolute immunity from civil prosecution. And that is a real deterrence if the people running for president thought they could be sued into oblivion for the rest of their lives. But that's very different from being held responsible beyond a reasonable doubt for actual criminal acts that you committed while you were the president. So the -in decision was appealed to the DC Circuit, which unanimously held criminal acts, by definition, surprise, surprise, are not lawfully within the scope of his lawful discretion. So if you're doing crimes, that's not in your official act. It doesn't matter what you're going. That is where things should have ended. And great.

0:07:23 Thomas: Yeah. Yeah.

0:07:58 Thomas: You'd think, you Would think. Yeah, just logically speaking, you would thing that for acts by the president should probably just not be crimes, like, I could imagine prosecutions of presidents for things, yeah, war crimes or whatever, but is there any sense that there was some chance that the president was going to do something to a U.S. citizen that's a crime, and we're like, well, he needs to be able to get away with that though.

0:08:19 Matt: Was a discussion about Obama taking out a US citizen with a drone, which was raised in this case, and I believe was a crime. And I would have no problem seeing a prosecutor for that because I'm very concerned about extrajudicial killing of US citizens or anybody, obviously.

0:08:32 Thomas: I you don't know, that gets brought up and I don't know the details of that. If typical like, criminal liability who made what decision. I DON'T remember enough About that to know who should be liable if it were any other thing. Um, there, there a sense on the left that's like, oh no, we need to make murder of U.S. citizens legal though, in order to spare our Our president. I don't feel like that was where we went with that.

0:08:39 Matt: Sure.

0:08:50 Matt: No. But also in a situation like that, the president has the DOJ's Office of Legal Counsel, which is infamously pretty evil, honestly. He But does have an advice of counsel defense available. And he can say that, I went to DOJ, they told me this was legal. I didn't act outside of anything they told me to do. So he would have had a pretty good defense there. But as Justice Jackson points out in dissent here, there's a very big difference between a defense, which you get to raise when you're charged with a crime, and absolute immunity, so the crime can't be prosecuted. That's kind of the side that falls on here, is just saying that we need to err on the side of immunity, which is pretty dangerous, I think. So the .C. Circuit concluded by we have considered his contention that he is entitled to categorical immunity from for any assertedly, quote-unquote, official action that he took as president, a contention that is unsupported by precedent, history, or the text and structure of the Constitution. So that's pretty clear. That was the D.C. Circuit's unanimous opinion.

I will point out that the prosecution, just to remind everybody, Article 1, Section 3, Clause 7, something that was brought up a lot at oral argument because they had this ridiculous argument, which fortunately the Supreme Court did not agree with. But you may remember that they were arguing that he could only be charged with a crime if he'd already been

0:08:54 Thomas: Yeah. Yeah. Oh. Oh.

0:09:57 Matt: Impeached and convicted, which is so stupid.

0:09:59 Thomas: Boy. They Made a literal Catch-22, they're But When he's being impeached, well, he can't be impeached for something he he wasn't criminally charged with them, then the snake eats its own tail and then Trump gets to do whatever he wants.

0:10:03 Matt: Yeah. And be off the charts if they'd gone along with that one, but we're still within medium range here. So I'll just read though that section, the clause, since I think it's important and to once in a while actually take a look at the Constitution. Party convicted when they're talking about impeachment. So again, this is specifically the people who wrote the Constitution thinking about how impeachments are going to play out. Party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law. That's the Constitution, I

0:10:37 Thomas: Wow. That's incredibly clear. What then? What are they talking about?

0:10:43 Matt: Know. Is suggesting that you can be convicted convicted of things criminally that you were also impeached for. So impeachment, again, is a political process. It's not a criminal process, and it certainly could be brought for things that are not necessarily crimes. Yeah, no, that's pretty bad.

0:10:56 Thomas: I would like to know by that worthless ink now means, like what that just absolutely nonsense pointless thing they wrote what that even could mean now if anything pin

0:11:01 Matt: Yeah. We will get to that because I want to take a look at the pending cases just to see there. Yeah, we will come back there. But I just want to point out historically, not just the Constitution, but the founders went back and looked at the Federalists. Because somebody was saying you should look at Federalist number 70, which is fine, but Federalist 69, the one right it by James Madison, right, yeah, sorry.

0:11:09 Thomas: In that starts with nice no sorry did get up to 420 of those bad boys or I don't think they wrote that many, I'm not sure, sorry.

0:11:29 Matt: He was clear the president can still be indicted after impeachment in just the same way that the Constitution says. There's just no doubt. And clear there. More recent history, Gerald Ford clearly believed that Nixon could have been subject to prosecution because he pardoned him.

0:11:39 Thomas: What was he pardoning Nixon for everybody sorry, it's so frustrating, I'm sorry, what was Eleanor pardoning for, nothing, he was, oh, you know what, Nixon must have sneezed, he must have sneezed and then he's like, we need a national pardon for that, snip, part, bless you, okay, now let's move on, otherwise what was the pardon for, yeah.

0:11:41 Matt: Exactly. Yep.

0:11:57 Matt: Know what Nixon didn't say? Oh, no, thanks a lot, but I don't need that because I'm immune from prosecution. I'm fine. I'll just take my chances. No, he

0:12:00 Thomas: Don't need it I don't even know what you're talking about, Gerald Ford, weird thing to say, yeah.

0:12:05 Matt: Accepted it. So again, right up until this year, it was pretty well understood the president could be convicted for things that he did in office if they're outside of the things he's supposed to be doing, if they actually constitute crimes. So Roberts puts together a majority opinion, which... And what the DC Circuit just said about how this is unsupported by precedent, history, or text.

0:12:25 Thomas: Not a close call is how I would classify what they said. I

0:12:28 Matt: I'm not persuaded after reading Roberts' majority opinion that there is any history precedent or text that I think he's, once again, just kind of making things up. He's making things in a very lawyerly way. If you read this, I think maybe just casually not really knowing much about the situation, you might think this is a legitimate legal decision based on history, text, and precedent. But he's really making it up.

And as Sotomayor points out, he's giving Trump everything that he wanted because Trump was arguing for absolute immunity, and he doesn't say that there's absolute immunity for everything. But at the end of the day, this decision, I would argue, pretty much gives absolute immunity. It's going to be very hard to prove otherwise. So just break this down, pulls this into three categories here of absolute immunity, presumptive immunity, and unofficial acts. And the Trump lawyers already conceded in their arguments that unofficial Acts are not covered.

So if the president, not that he drives, but I guess if the president were just to be driving through Vermont on vacation and ran over somebody, he can still, and left the scene, right? He could be charged with leaving the scene of an accident if he's off the clock on vacation, I guess. And I just came up

0:13:28 Matt: With that, but right.

0:13:28 Thomas: Guess but then you could be like, well, he's, it's part of his job to be like the president all the time, you don't have non-president hours, and he's got to go somewhere matt I don t understand what's an official and what's an unofficial act I think that we'll get to it I'm sure but like, one thing that I've seen I think to pause a moment I want to talk about kind of the reception of this that, I saw I, terms of the, like, people's reaction, I think we saw, oh wait, well, this, this wasn't necessarily that bad, because did see a wave of people that are like, well, it's only official acts. So maybe they're thinking like, OK, like when Obama killed that citizen, that was, that was an official act. So it's stuff like that, I guess.

And that seems to be consistent with history, unofficial acts surely must include stuff like, know, you stuff Nixon did, or stuff Trump did in trying to like arrange a private election that he would like a different, have his own different election with, and all that. And a lot of people doing the like, like, oh, I think, are we getting mad about nothing here because unofficial acts aren't covered, and so that, you should be fine, that should cover it.

But the more I thought about it, think, and a lot other people came to this conclusion too, it's like, I don't know what that is supposed to be and what couldn't be considered an official act. Like, it seems like not only that, not only could a lot of things be considered in official act, a lot of things that are crimes are not of context, so

0:13:36 Matt: They could try. I don't either. Yeah. Yeah,

0:14:43 Thomas: I don't know if you want to get into that now, but like, okay. For an levels of thing here that you already brought up are, well, when he's in his constitutional authority, when his official act within his constitutional authority, full immunity, can't do anything, completely immunity. I think an example was brought up of, yeah, appointing an ambassador, or that's fully. And then I'm thinking, well, but what if someone bribes him to appoint an ambassador? That's an official act, not, understand what this stupid decision says about that.

0:14:44 Matt: I do. Yeah because Yep. Me tell you why I am and a lot of people are very worried about this decision. It's not necessarily even breaking down between official and unofficial and presumptive immunity, which the way he defines this and or doesn't define it more to the point is very concerning and just on its own. I'm very concerned about the way concerning to me is the fact that he specifically says, and let me just read it so that everyone understands that this is actually in the Abandon. Go. Sorry. I actually have printed this out old-fashioned here.

0:15:36 Thomas: Nice, I like it. Read that from the old state house, Matt. Hear ye, hear ye. This whole thing sucks, everybody.

0:15:40 Matt: I kind of want to. Again, anybody who tells you that this is just, oh, it's fine. They're just defining what official versus unofficial or whatever is. I mean, here's where we start to get into really scary stuff. In dividing official from unofficial conduct, courts may not inquire into the president's motives. So what you just said about the ambassador is obviously the bribery would be an unofficial act. The appointment would be unofficial. And in the kind of country I want want to live in, you'd be able to subpoena his communications. You'd be able to bring in witnesses and have them say, yeah, no, I heard him on the phone saying, great, I'll take that half a million dollars and you can be the ambassador to France, right? And that's illegal, obviously not within something he's supposed to be doing.

0:15:58 Thomas: God.

0:16:20 Thomas: I would think, Matt, I would thinking it's illegal. No, I know. This might be an explicit show. This is just outrageous. God damn it.

0:16:26 Matt: It's not. It is no longer illegal.

0:16:29 Thomas: But you just said, okay, so that's already nuts. And maybe this is the point you're going to make. Sorry, I'm fired up. You just said motives can't even be whatever, right?

0:16:29 Matt: I'm sorry to tell you. Exactly. And worse than that, it's not just that we can't look into his motives. We can't even get the evidence that we would need to determine his motives."

0:16:42 Thomas: This is the worst. This

0:16:44 Matt: This is absolutely the worst part. This is Amy Coney Barrett had to write a concurrence in which she said, oh, I'm fine with making the president a king, but I'm not going to let you not bring in evidence.

0:16:53 Thomas: Is, but this is a little extreme. Look,

0:16:54 Matt: Yeah, it's too far from me.

0:16:55 Thomas: He can be a God, King, Emperor, Trump, all hail Trump. But like this part is like, it's kind of dumb.

0:16:58 Matt: Right, right. It's really unexpected. Did not expect this. And it's really concerning because he's saying that we just can't touch anything that looks like an official act.

0:17:08 Thomas: Can't even use it as evidence, right.

0:17:10 Matt: Yes, we can't, which means you can't use anything outside the public record. So if it's not in the New York Times, apparently, you can use a subpoena, even though in Trump Trump v. Vance four years ago, they said the president is absolutely subject to subpoena when it's private papers, right? There was his tax returns that Cy Vance was trying to get in New York. And they cite Vance here, but it seems like they might be tweaking it a little bit. But is, to me, what underlies this opinion. Even if you just skip over how they defined everything else, it doesn't matter how they defined it. If you can't look into his motives and you can get the evidence you would need to determine what his motives were, then anything to do with the pardon power, with the appointment power, with the removal power, as he absolutely can.

0:17:26 Thomas: He could sell pardons. Removal power. What's the removal power?

0:17:51 Matt: Removing officers from executive branch. And so Sotomayor, excuse me, Jackson makes the point in dissent that there is no reason at this point for the removal of power not to include poisoning the Attorney General. She actually puts that in a footnote.

0:17:53 Thomas: Oh, wow. Holy shit. What?

0:18:04 Matt: Yes, it says, yeah, I can remove the Attorney General, so I'll just kill him. We can't look beyond that if he wants to do that. Now, that's a little extreme. I don't think that's an unfair thing to say. It's not something I ever thought I'd be reading in a Supreme Court dissent or in any Supreme Court writing that we'd be talking about things like, and Sotomayor brings up the bribery example and talks about how this is pretty obviously an issue because one of the core functions being pardons, if you're saying you can't look into anything around pardoms, you can look at anything around appointments, around signing treaties, right? So if there's corruption around signing a treaty, really concerning.

0:18:21 Thomas: Yeah.

0:18:37 Thomas: To stick on that last point, which is really, logically speaking, is the thing that just made my brain explode. I, it is so, it ist so unnecessary. I don't understand why, like, forget, pretend to go with some amount of this just because, I don't know, we had too much lead in our fucking drinking water. Pretend we go with the, okay he needs to be immune to the whatever, why on earth couldn't anything be used for evidence, let's say, in like an unrelated crime, even like if he just commits murder, just, me, if I'm, maybe I'm misunderstanding that, let's say after he leaves office he just commits an old-fashioned murder, just a plain old run-of-the-mill murder, nothing presidential involved, but let's, it becomes clear through, through, I don't know, some sort of evidence or something that he planned this murder while in office. And he planned the murder just official communications with some other person in the government.

0:19:02 Matt: Yeah, yeah, yeah... And it was motivated by something that happened while he was in office, right? And so you can't even look into that. You You can't see why he did it.

0:19:33 Thomas: Oh, good point. Yeah. It was, it was, man, I, in the official presidential cable for the day, man I want to kill this guy. I really don't like this guy, let's kill him. But let's wait till after I'm president. Cause yeah, I'm busy for now. And then they do it after he's present. You can't even look into that as evident. Am I misunderstanding something there? None of that could even be looked at.

0:19:55 Matt: Yeah... I mean, I don t want to get too dark on you, But, you know, Juan Merchan, Jack Smith, these

0:19:57 Thomas: No, I want to know if that's true. Like, I'm not trying to make, I am trying to genuinely assess, is that true? Because that is the stupidest fucking thing I have ever heard in my life, man. I don't, I wanna know, like, tell me if I'm wrong. Like, tell me if I'M making something up. So that's truth.

0:20:12 Matt: I am – I'm with you. I – that's

0:20:14 Thomas: So a totally unrelated crime as a private citizen after He was in office, if any evidence, let's say all the crucial evidence is from when he's in in office, and it can be tied to some sort of, and you know, fucking official communication, then can't look at it, even use it.

0:20:16 Matt: Yeah.

0:20:28 Matt: That's what he's going to argue in New York. He's he's gonna try to overturn the New York conviction by saying, even though this was stuff that happened before I was president, some of it happened after when he was doing the, you Michael Cohen, right? We'll talk about that by the end of the hearing. But the other thing, in case you haven't heard The Stupidest Thing in Your Life, here's just one more.

0:20:41 Thomas: No. No, I'm so sorry, Matt, I genuinely asking, is that what this decision says?

0:20:46 Matt: This could be read that way. I don't see why not. And he's reading it that way, clearly, because of what he's seeking to do in New York right now.

0:20:52 Thomas: Wait.

0:20:52 Matt: There is absolutely no reason, because this is such a strict protection against looking into what the president does and why he does it, and then getting evidence about it. And I just want to read one more thing right after the thing about the motives. John Roberts on the same page, and I wouldn't believe this if I weren't looking at the words right here, nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. Turn that one over. Yes.

0:21:18 Thomas: Yeah, you're gonna have to help me with that.

0:21:18 Matt: That's direct contravention of what the DC Circuit said. Remember, the DC circuit said that if you're doing something that's clearly outside of the law, then it can't be an official act. And John Roberts is saying, well, just because they're saying, prosecutors are saying that you violated the law. That doesn't mean it's unofficial. So we can't look too far beyond that. Presidents would be subject to trial on every allegation that an action was unlawful, depriving immunity of its intended effect. No,

0:21:26 Thomas: Right. Not Really? Because That not happening to Biden, just just because it's only after you leave office or something, like why hasn't that happened to Obama? Obama's out of office, boy they sure hate him on the right, you would expect that if this were a problem, Obama, plus by their logic, Obama did, probably did commit several hundred thousand crimes based on their Fox News coverage, so why, why isn't he in court all day, every day, Matt, if this is a problem?

0:22:01 Matt: Out, and Jackson, of course, unlike Roberts, has actually spent quite a lot of time in courtrooms defending people. She points out that you have to go through a grand jury. You have to put this in front of a jury. You have to actually have charges that can be sustained in front of a judge that can survive a motion to dismiss, right? There's a lot of protections built into this system. It's not like the civil things where you can, you know, it's a much lower standard, right? So she's saying that going to happen. This is not something we need to worry about.

0:22:23 Thomas: 40, been 46 presidents, uh, or I forget if that, if they count the ones that the Garfield or whatever, but whatever, it's 45 out of 46 are wealthy white men. I wish just Jack, Jackson had added, although I haven't read the dissents, I don't know, maybe she did. Oh, also, so we're talking about a rich white guy, like we don't, there's no, they already have so much protection in the legal set.

We're not talking about, oh, well, sometimes the president is a poor, like, of color who lives in inner city Chicago. Sometimes that's the president, just, you no, resources has to get a court appointed attorney. This is somebody who already is going to have all the advantages in the possible system that we have. This is not a problem, this is creating a problem out of nothing.

There was one point, Matt, that I think is apropos of this, and again, this is so infuriating, I'm so sorry, the where Alito gets on in oral arguments is like, are you suggesting that the president is like a normal person, and you know, because the president would have to, like, he has to make decisions all the time, he had, no, actually, I want to play that, maybe I, I didn't even think to cue this up.

0:23:27 Thomas: But But it's So Stupid That I have to play It.

0:23:27 Matt: That's worth putting it in, yeah.

0:23:30 Clip: Mr. Trudeau, do you really, I mean, presidents have to make a lot of tough decisions about enforcing the law, and they have to made decisions about questions that are unsettled, and they make decisions based on the information that's available? Do you really? Did I understand you to say, well, you know, if he makes a mistake, he makes mistake.

0:23:33 Thomas: Just Jumps In A Makes

0:23:51 Clip: He's subject to the criminal laws just like anybody else? You don't think he's in a special, a pecuniary, precarious position?

0:23:50 Thomas: A mistake Do You don't think he's A god emperor among Mere mortals

0:24:00 Clip: He's in special position for a number of reasons. One is that he has access to legal advice about everything that he does. He's under a constitutional obligation.

0:24:09 Clip: He's supposed to be faithful to the laws of the United States and the Constitution of the United States. And making a mistake is not what lands you in a criminal prosecution. There's been some talk about the statutes that are issued in this case.

0:24:07 Thomas: That's A good response No Fucking Shit Sorry I just, I had to play that, I've been hearing that clip you making the rounds again, and I forget if we already covered this, Map, but, I, making me so mad, what, what is, what is he talking about? I Is there a bunch of of times where, that I don't know about, where the president is like forced into a split second, like, game show situation, and Regis Philbin's ghost is like, you gotta die right away, right now, is that legal, go, is that legal or not, push the button, you killed a man, illegal, go to jail. I don't know what this is, I don't know what this is talking about, I guess maybe, maybe you could bring up the Obama thing and say, like, okay, well, that's a curious situation, you had to evaluate whether or not that, I'm, don't remember what happened with that, I'll be honest. Was it incidental, or were they actually targeting a U.S. citizen? I can't remember.

0:25:09 Matt: It was a targeting, and his family actually sued to try to stop them from doing it. The ACLU got involved. Yeah, no, it's bad.

0:25:12 Thomas: Oh, my God. All right. Well, throw him in jail. We it, but I do think the idea of, yes, he should absolutely be able to be charged and then he could bring it up as a defense. He could have a defense that sounds like justice. That sounds like how things could work and a a jury could decide, well, man, if you put it yourself in his shoes, does it make sense what he did? Did he, you know, he was just trusting counsel or not. Sounds like justice to me, Matt. That sounds Like what it's supposed to be. But this idea that this president is just in these high pressure situations where, where he's, you Know what he's doing is he's Doing some insider trading all the time and he's not sure like, shoot, is this technically insider trading or am I just using information that is like, what is a hypothetical that is Like this decision all the Time that is These are close calls that he's evaluating. What is Alito talking about?

0:25:58 Matt: I don't know. I will tell you, though, that we know what Alito's opinion is of this already, because he wrote a dissent in Trump v. Vance, and I'll just give you a little bit from that, Give you some perspective. He and Thomas wrote separate. And Alito was very concerned, in very much the lines that you were talking about here. This is, again, just to say, subpoena for Trump's tax records, which we know contain evidence of at least civil violations and possibly crimes. Court's decision threatens to impair the functioning of the presidency and provides no real protection against the use of subpoena power by the nation's 2,300 plus local prosecutors. Respect for the structure of government created by the Constitution demands greater protection for an institution that is vital to the nation, safety, and well-being. So that's just getting evidence. He's not even talking about charges. This is where he stands.

0:26:07 Thomas: Right.

0:26:39 Thomas: If someone were to subpoena the current president, like, if it were Trump, would he have to turn off his Fox and Friends and go down to the basement and get all the documents himself and read through them and turn them over and be like, "God, I didn't have time to do anything else today." And for several months, because I had to respond to a subpoenas. Or would the office of legal counsel be like, first off, fuck off, we're the president, so no, and then would fight it forever and it wouldn't work. Or maybe if there was something genuine there, someone in the goddamn, that office, would do it for the president and it would take nothing away from the president in his duties.

0:26:56 Matt: Yeah, absolutely. He has a lot of people to do this stuff. But again, Alito, like Scalia before him and many other conservative judges, believe in the unitary executive, which means that the White House is the ultimate top of the executive branch. Alito Pretty his confirmation hearing, he was asked about the unitary executive.

0:27:31 Thomas: Really? Back that far?

0:27:33 Matt: No, because this is something that, again, that Scalia was pushing and that when he was working for Office of Legal Counsel himself was pushing when he Was working for DOJ.

0:27:35 Thomas: Oh. Oh, I didn't realize. Okay.

0:27:41 Matt: Clarified at his confirmation hearing that the unitarian executive isn't just the scope of executive power, it's who has the power, and executive power is conferred on the president. Ultimately, ultimately, there's nobody else that can stop him. And I don't know, this again, this is a very important part of the conservative project, as is rolling back Chevron, to make sure that executive agencies can be checked when there are presidents that they don't like are in charge, and is taking away basic freedoms. I mean, these are all part of the same project. But just want to discuss the presumptive immunity part very quickly, because I think some people are seeing that as a fallback. They're saying, well, there is at at least this other kind, you know, they're not saying it's absolute all the time, but they kind of are. Because let me find the exact language here. They're talking about the outer limits of official conduct, which arguably would include things like telling the vice president to throw an election, I would hope.

0:28:17 Thomas: Mm -hmm.

0:28:29 Matt: Specifically says that that's still within his official duties.

0:28:29 Thomas: You'd think really, right.

0:28:33 Matt: It's communication with the vice president. We have to protect that. It's very important that we not look behind the communication of the vice -president.

0:28:37 Thomas: That's like when I use my work email to, I drugs on Craig's list. Then I, but it's my work emails. So it's that's work. You can't tell me I did you furthermore, I need overtime. I did after I was off the clock, but I used my work email, so overtime totally

0:28:51 Matt: Exactly. Roberts suggests this at least would not be. Now, he's remanding. He's taking the easy way out here, and this is appropriate, but he's remanding everything back to Chutkan to use a standard that he hasn't really defined very well, this is all pretty nebulous, to decide if the with the vice President, with interfering certification would pose any dangers of intrusion on the authority and functions of the executive branch. This is what I want to talk about very quickly. The presumption of immunity could be rebutted.

He's saying it's a rebuttable presumption that the government can say, if they want to prosecute him, as long as it doesn't pose dangers of intrusion of the authority of the government, it's not a rebuke. It's not authority and functions of executive branch, you can overcome the presumption and you can prosecute them. But again, not very well defined. And he's sort of suggesting, right, I don't either. And he's saying that even this communication with Pence wouldn't necessarily go there. So don't take a lot of hope in the presumption of immunity being rebutted. I think it's a very high standard he's put here. And I think that my concern, we've been talking about this for a while and I've been thinking about this nonstop, honestly, the fact that we all understand that if Trump is elected, that he would drop these cases, the federal cases against him that he can drop at the earliest

0:29:30 Thomas: Know what that would mean. Yeah.

0:29:56 Matt: Opportunity, he would make sure DOJ does that. Now, I'd been assuming then he would do that corruptly. But this decision allows him to do it completely legally. Because

0:30:03 Thomas: On But yeah, okay, I'm So sorry, you remember this, um, thing, Matt? This famously corrupt thing that happened in the year whatever, because I'm bad at history, but I think it was like 1970 something, when uh, last, Trump, the only president we've ever had that was somewhat comparable to Trump, night, it, it happened on a Saturday, and it was a massacre, and they call it the Saturday Night Massacre, where he just fired, fired attorney general after attorney general, until they would agree to fire the special counsel. Something like that. Remember that? Cannot think of a reason, Matt. Light of this decision, I can't think of any reason. I can think of no single thing wrong with that. Can you?

0:30:38 Matt: If I could, I couldn't find the evidence to decide that it was.

0:30:41 Thomas: It's an official. I can not think of something that is more official than firing the attorney general. Something you have the power to do and it is in your authority.

0:30:48 Matt: The world I want to live in, we could subpoena his emails. Not that Trump sends emails, else, but we could get evidence of phone calls and bring in people to tell us what he was talking about around that time when he did that. Obviously, that's just what Nixon did, was just clearly corrupt.

0:31:01 Thomas: Right, but hold on. So, I am so sorry. I actually do want to make sure I understand this, because what, from this decision, is the evidence part is obviously terrible and ridiculous and horrible. Forget that for a moment. Let's just say that Trump just said, which he did. Now that, oh my God, I just tried to come up with an insane hypothetical, Matt, and then I realized it happened. Happened, let's say he went on TV and just admitted that he fired the director of the FBI, or whatever it was, what he admitted to correctly, let's just say he just said, I, yeah, I fired him because he wouldn't do what I wanted, I didn't want to be prosecuted anymore, I kept firing, I don't know what, you understand what's confusing about this, I fired the guys into as many as they could bring to me, until one who was, oh shit, who that was, was that Bork? Bork, no.

0:31:51 Matt: You're right. It was Bork.

0:31:52 Thomas: Was Borg was the one eventually did it. I think he did fire Archibald Cox.

0:31:54 Matt: Bork, yeah, he Borked Cox. That's right.

0:31:57 Thomas: God, that, That guy. Anyway, point is, let's pretend Nixon just said, "Yeah, no, that's what I did. It's 100%. It was corrupt. I'm telling you now in my own words, it was corrupt." I don't see how that matters because this says he's immune for official acts. If it's an official act, though he said we have some evidence, whether it's his word or whether it's something he wrote on a napkin in a way that was unofficial so we get to use it this was corrupt. I don't see how this decision says we still can prosecute that. Am I but am I am I missing something? No

0:31:58 Matt: I Agrees with you. Trust her on this. Let me just read from her footnote here, just to be very clear about what she says. The president may have the authority to decide to remove the attorney general, for example, the question here is whether the president has the option to remove the Attorney General by, say, poisoning him to death. Put another way, the issue here is not whether the President has exclusive removal power, but whether a generally applicable criminal law prohibiting murder can restrict how the president exercises that authority. That's in question. The fact that she points out that that is in question at all makes her point, right? Roberts is saying that there's something in the public record that we could use against the president, then perhaps. But yeah, no, it is. The removal powers are core constitutional official powers. So you're right.

0:33:04 Thomas: I Read the wording from just this. It is held, uh, nature of presidential power. This is the first friggin page, Matt. The nature of presidential power entitles a former president to absolute immunity from criminal prosecution for actions within his conclusive and Preclusive. Oh, constitutional authority. Would you say that firing an attorney general is not within his conclusive and preclusive constitutional authority? So The point I'm making is, even if you had 100% evidence that this was corruptly done, I don't understand how this decision would let you still prosecute it.

0:33:28 Matt: Yep.

0:33:38 Matt: It isn't.

0:33:48 Matt: Read just to support what you're saying from Justice Jackson's dissent. Again, very clear, as always, moral clarity here from her. The new presidential accountability model, the starting presumption is that the criminal law does not apply to presidents, no matter how obviously illegal, harmful, or unacceptable a president's official behavior might be. Regardless of all that, courts must now ensure that a former president is not held accountable for any criminal conduct he engages in while on duty, unless his conduct consists primarily or perhaps solely, of unofficial acts.

0:34:16 Matt: So again, removal is an official act, right? And I think that she puts it very clearly. And of course, Roberts, in his majority, says she's just being hysterical and that she's over -reading this or just not understanding what he's saying. But I think we all understand what he're saying.

0:34:16 Thomas: Unofficial Acts Yeah, I Would Love That that were true. Like I genuinely, I can't emphasize enough how much I am not trying to do an gotcha of this decision. I would love Matt right now to tell me, oh no, Thomas, you're just, you're not a lawyer. You're not understanding that after page one, there's some other thing that makes this make sense. I'm not joking. I would love for Matt to tell him, because this this is scary. This is genuinely scary for immunity for official acts. Matt, let's say president Trump is reelected. Let's say he puts a official presidential pardon on eBay and it sells it for a million dollars. What about that? When he pardons the person, what About that? Does this decision allow us to prosecute?

0:34:29 Matt: Yeah.

0:35:13 Matt: Really Depends on who's trying to prosecute him, but on paper, that is what Roberts is saying you can't do because it's a core function. Going to make you feel any better, but let's play a quick clip here from the president of the Heritage Foundation, which is, of course, responsible for Project 2025, which we've talked about before. Because remember, one important parts of the Project 2025 endeavor is to make sure that we have a very strong executive and that everything goes down The line in accordance to what the executive wants. So let's hear what Kevin Roberts has to say.

0:35:13 Thomas: Oh Yep.

0:35:41 Clip: Me speak about the radical left. You and I have both been parts of faculties and faculty senates and understand that the left has taken over our institutions. The reason that they are apoplectic right now, the reason that so many anchors on MSNBC, for example, are losing their minds daily is because our side is winning. And so I Come full Circle in This response And Just want to encourage you with some substance that we are in the process of the second American revolution, which will remain bloodless if the left allows it to be.

0:36:03 Thomas: Yeah. Okay. Agreed. AgreED there.

0:36:05 Matt: Here it comes.

0:36:14 Thomas: Boy, that's not ominous at all.

0:36:16 Matt: Yeah. So was on July 2nd, I think, the day after this came out, and they're talking about this decision. So what does that tell you that they think it means?

0:36:23 Thomas: Significant part, if I remember right. And please check out our episode on Project 2025. Matt did a great a deep dive on that and, and by the way, share it around if you don't mind, uh, the word about it. Um, remember a core part of that plan, Matt, being getting rid of the uh disloyals, the purging the government of people that previously would have had some amount of protection because, you know, they're just people with careers who are not political. Um, it's a reclassification of a bunch of people who Yep, who are not typically looked at as political appointees, reclassification.

And then that, that allows them to get rid of them. But now, that was already bad enough, they had scheduled up that was going to allow them to just get rid off and replace with loyalists, a bunch more, some, some few thousands of workers, whatever it was. But now I'm wondering, does this make it so that if the ultimate authority is with the president and he has the authority to fire someone, can he just do that? Can he just fire every single person in all of these agencies or whatever it is?

0:36:49 Matt: F.

0:37:20 Matt: Yeah. Usually I would tell you that I think the union would at least provide baseline protections because it's pretty hard to fire some of these federal employees. But the National Treasury Employee Union said that they're very concerned about the Schedule F plan under Project 2025 in particular. And this is something, again, Project 2025 and Heritage Foundation did not come up with Schedule EF. This is something that Donald Trump was putting into motion at the time that he left and that Joe Biden immediately repealed, because the union is saying that all of these office managers, human resources people, policymakers, cybersecurity, just a very large classification of people could move to Schedule F and could be easier to fire. If the union is saying that, then I'm concerned.

0:37:52 Thomas: That was Schedule F. Was this an updated statement after this decision? Because I Am wondering, maybe please tell me I'm wearing just piles of tinfoil, Matt if ultimately the authority rests in the president here, I don't understand what would stop the president from just, stroke of the pen, firing literally everybody in some agency or something, something. And what would the recourse be? I don't get it. Maybe be too far. Am I missing something? Sure.

0:37:54 Matt: Right. No.

0:38:16 Matt: What I can comment on. We're getting into employment issues here. No, getting much, much closer to the unitary executive that they've been wanting for a long time. I want to specifically comment too much on the hiring and firing stuff.

0:38:26 Thomas: Okay, so let's keep that in galaxy brain, that I might be me overblowing something, but I'll just say it's a fear I have based On this decision, and we're not I didn't prep Matt on that insane question ahead of time, but I do want to leave it in just as something I'm worried about. If somebody has a good answer for me, let me know. But I, Matt it seems like the more time went on, the more people thought about this decision, the more they were like, this might be just even more bad shit than we thought. And there might be creative ways, a la my galaxy that I probably thought of there. If not that, then something else. There might be many ways we're not thinking of that this is just a disaster. And it seems like people, the more time went on, were wising up to that. That is, that your impression of how it went? To Yeah.

0:38:32 Matt: Sure. Yeah.

0:39:08 Matt: Yeah. No, me, I've been thinking about some of these scenarios, but to me that the scenarios really begin and end with the pardon power, because you've got the president able to come out and say, well, whatever you want to do. And he basically said that near the end of his presidency, that I'll pardon anybody who does anything for me. So, and at that point, when you're talking about, for example, the largest deportation force ever assembled, when you're talking about ICE, the most violent and dangerous agency in U.S. history, when you're talking about the FBI, the Secret Service, when we're talking the kinds of things that were happening during the George Floyd protests, where vans were pulling up and pulling people away and disappearing them, never really know exactly what happened in some of those cases. You were talking about that fact that Guantanamo Bay exists, when that that Donald Trump retruthed, don't I know if you saw this, somebody saying that Liz Cheney and others should be subjected to televised military tribunals. And Trump endorsed that. Thought that was something that was worth retruthing.

0:39:21 Thomas: Jesus Christ, Jesus

0:39:54 Matt: Now he's been on the offensive yet again, talking about how, you know, I do not want to have to do it, but if they are going to come after us, we are going have to prosecute all of them. So, you can certainly, I dont want to get too dark here, but you can see any number of unlawful prosecutions against people like Judge Judge Juan Marchand or Jack Smith or, I don't know, legal podcasters who don't like the president very much. Going to end with some thoughts on some of this, but I t be too careful when you' re talking about expanding presidential power this way. I think that it's worth looking at not where this goes in 2025, which is bad enough, but where this go' s in 2035, 2045, because we' re normalizing something that we can' d take back.

0:40:10 Thomas: Christ Yeah

0:40:32 Matt: So I some closing thoughts on this, I want to just talk very quickly about where these cases are going now, because John Roberts, without Setting a clear standard, has remanded to the district court in D.C. This is obviously going to affect, or at least it will try to affect – the Trump team will do their best – all of the prosecutions, including the one that's already concluded, starting with D.C., Judge Chutkan is now going to have to go through the indictment using some of the guidance that Roberts has provided. And it's kind of indicative, but he's just kind of discussing some of these charges.

It does seem like, for the most part, though what we can all agree that, as alleged, the indictment is saying that he tried to do something that was extremely illegal and bad for democracy is suggesting that he's not really saying that any of this necessarily falls outside of presidential powers, and it's up to Chuck to hold a hearing and try to determine that. That's bad enough that she's going to have to do that. But that's just we're talking much more delay, because you're talking about a series of into some factual inquiries, which will be limited. The

0:40:38 Thomas: Yeah

0:41:19 Matt: Evidence will be limited by them. Not sure exactly what survives out of that. I've not enough of an expert on federal criminal law, especially these charges, to know, but I do think it's a real problem for the D.C. prosecution, considering that pretty much everything they're talking about occurred while he was president and while he was doing president stuff and communicating with people. I think the communications with people like Rudy Giuliani, maybe, who are outside of the executive branch, could still be prosecuted. Who weren't actually working for them. I will point out that Jeff Clark, and this actually was a patron question. We've I got a few patron questions along these lines. I think we're going to have to do an extra on this because we have so much to

0:41:19 Thomas: I We'll

0:41:50 Matt: Say in this episode.

0:41:51 Thomas: Stay Late for patrons to Answer some, some more questions. Yeah.

0:41:52 Matt: Yeah, sure. DC case I am concerned about. The Florida case, obviously, we're already concerned because we're talking about Judge Cannon. Trump, of course, already filed a motion based on presidential immunity that remains pending because she was waiting to see what happened with this. And I would usually say that a fair and impartial judge like Tanya Chutkan maybe wouldn't have to worry too much because clearly he violated the Espionage Act in holding onto these documents. Of course the argument's going to be that the documents were transferred to Mar-a-Lago in the final days of his presidency. So it's an official act. We can't look behind it and that's it. Continued to hold them beyond his presidency, of course.

0:42:00 Thomas: Yeah Any ignored any subpoenas and he did A lot of stuff again that should, even under this insane decision, you would think some amount of that's got to still be criminal or allowable, but just who knows? And pack on top of that, with that case, in the first one you talked about know how much of it now, say they've already utilized evidence that now this decision says you can't even utilize? What happens there? Do you have any idea?

0:42:25 Matt: Yeah.

0:42:47 Matt: They haven't really. I mean, we're still in pretrial proceedings and nothing has officially been used.

0:42:49 Thomas: Even To get the jury indictment or whatever, like isn't that, wouldn't that, Matt, like okay, I'm not the lawyer, but Matt, let's say I get indicted for something and later on it's discovered that, like, hey, they weren't allowed to use that evidence because it was a police illegal search and seizure or something. I would think I'd have some recourse, and I know that this decision says, as we talked about earlier, certain stuff can't even be used as evidence, can't be looked into as evidence.

0:43:17 Matt: Yep.

0:43:17 Thomas: Is there going to be any part of these cases that were relying on something like that, that now, what happens there?

0:43:24 Matt: I think part of that was built into the motion to dismiss and certainly that would be the recourse. It'd be a motion to smash and or a motion exclude the evidence, right? To suppress it as illegally obtained or something that the court shouldn't be reviewing. And we know Judge Cannon by this point is going to take the opportunity if she can to Trump some favors, But at the very least, this is a significant delay in a case that has already been delayed beyond any belief, any kind of reason. Then, of course, we have the two state prosecutions. Have the one that has successfully concluded, in which sentencing has just been pushed back to September. Judge Marchand had to do that because Trump's lawyers sent a letter explaining about the post -conviction relief they're going to be seeking. Now, we don't have that letter yet. We don't know exactly what they're thinking, but I can imagine.

Are past the post -conviction motion deadline, which we don' have in Massachusetts, but that's a thing in New York. But there are other ways that they could try to get this back in front of Juan Marchand and say, this is a long shot because, of course, pretty much all of the conduct we're talking about was before the election while he was a candidate, but the conspiracy to pay off Michael Cohen occurred while he as president. Incident.

0:43:27 Thomas: Ah, yeah.

0:44:18 Thomas: Did they ever give him a title related to the White House or can't remember now. I think he said he did, but he didn't. But anyway, that could be an argument, right?

0:44:21 Matt: Officially, he was made like the... He was looking for it. Right.

0:44:26 Thomas: I mean, if they did, then, oh, Well, official acts. And

0:44:28 Matt: Right, yeah. Were kind of making fun of this, but Emil Bobe was raising these claims all the way through, knowing this could be a possibility. So it's been preserved. Marchand might have to say this goes on appeal, but they could try to get it back in front of him as a motion for new trial in one way or another.

Again, this is, I'm not even really clear how state courts are supposed to interpret this necessarily, necessarily that's not really uh see because speaking of, of course, in Fulton County we've got our buddy Scott McAfee is going to have to have his own hearings probably to go through this very yeah just gotta get out his thinking chela uh he's going to have to go through this RICO indictment which as we've discussed is a very complicated and lengthy indictment which alleges a whole lot of different acts and and McAfee's gonna have to sort out which of these might have been official or unofficial uh Coney Barrett, by the way, we haven't really talked about this. We have to talk about the concurrences very quickly. But Coney Barrett and her concurrence, the Coney Barrett concurrence is actually much closer to what I would have wanted to have seen for the final decision here, because I'm okay with a certain amount of immunity for actual presidential acts.

0:44:54 Thomas: He's gonna have to electric Yeah.

0:45:23 Thomas: No.

0:45:23 Matt: But saying, we have to be able to look into these things. She makes the point that she's not sure that you can really say that interfering with the state election is an official presidential act. Nice of her to concede that. That's the allegation in Georgia, obviously. So who knows how this is going to go. But we do know right now, the one thing we do know is this is gonna add so much delay to all of these cases because it has to. And it's so many more opportunities for appeals and for interlocutory issues. It's gonna badly complicate things. And of course, we don't have a lot of clear guidance in this. Let's talk very quickly, since I mentioned it, the concurrence from Clarence Thomas is It is so bad. Do you know about this? Have you seen?

0:45:58 Thomas: I don't. Holy shit, there's something worse than what we've already talked about. Yeah.

0:45:59 Matt: Oh, okay. Yes. So Clarence Thomas, I don't think anybody asked him. I don't think anybody was really briefing this. He goes on for pages about how Jack Smith was illegally appointed. That's what he decides that his concurrence is going to be about. He agrees that the president should have immunity.

0:46:06 Thomas: Right. What does that have to do with But

0:46:16 Matt: Just wants to attack the prosecution just gratuitously and just say this whole thing's out of order. So that's... Thank you.

0:46:22 Thomas: To does that have do with even the constitutional question here? What

0:46:25 Matt: Yeah, I don't know. I don't understand. I mean, it's really...

0:46:28 Thomas: It just goes to show how, how little these assholes have, like, they can do whatever they want, these justices. They can rule on whatever they wants, stuff that's not related in any meaningful way. They can just spout off and it'll be tomorrow's, today's concurrence is tomorrow. No, I guess it is, is the concurrence, is part of the decision, right?

0:46:44 Matt: No, he says, I write separately to highlight another way in which this prosecution may violate our constitutional structure. Not that anybody asked me, but let's talk about that, right? So then he just goes on and on about the counsel and how it shouldn't be established. This is clearly some beef he's had for a while as a lot of them have about the the special counsel. But anyway, another episode even to talk about the history of special counsel, Morrison v. Olson and everything else.

But I just wanted to note that. The dissents, of course, are both very good. There's the one for all the liberal justices written by Sotomayor and then Jackson dissents separately to get into some other issues. The dissents are extremely alarmist in a way that I've never seen Supreme Court dissents be alarmist before. Usually, Supreme Court descents are pretty good about pointing out where this could go. These are both really... let me just read I before get to my closing thoughts. I'll read Sotomayor's closing thoughts here.

Decision to grant former presidents criminal immunity reshapes the institution of the presidency. It makes a mockery of the principle foundational to our constitution and system of government that no man is above the law. Relying on little more than its own misguided wisdom about the need for, quote, bold and unhesitating action, end quote, by the president, the court gives former President Trump all the the immunity he asked for, and more.

Because our Constitution does not shield a former president from answering for criminal and treasonous acts, I dissent. She's got no respect left. There's no respectful dissent, she dissents. Jackson,

0:48:01 Matt: I believe, also.

0:48:00 Thomas: Can we break out the, I disrespectfully dissent? Let's get, take it to a new level, please.

0:48:03 Matt: If Anything, deserved that, yeah. As we've said before, you can learn a lot about what's actually in these decisions by reading the very reasonable dissents of people like Sonia Sotomayor and and Ketanji Brown-Jackson. I think they're both great writers and great thinkers. Think we've said what we have to say about this. I just wanted to say a few things on a personal level about this before we close, because I have, I think, a kind of a unique perspective.

I've been working for the last 18 years, hundreds of hours with people who have fled failed states, collapsing states, collapsed states, people from places like Rwanda, Honduras, Uganda, Haiti, even Nepal, Venezuela, Iran. Run. These are places, I can tell you having met so many of them, these are places full of good people, but they're at the mercy of bad governments. And I've seen the pain that comes with having to talk about being afraid to return.

Had clients who are journalists, political candidates, activists, lawyers, and also just regular people who get on the streets and protest and get in trouble for it. And I've seen what happens in these governments and what it looks like and the fact that any given government is just one or two election cycles away from this. And maybe I'm a little more paranoid about this than most people, because I've talked to so many people.

But my clients have just made me so aware that democratic freedom is just not inevitable. And that even the healthiest countries, and we're certainly not a healthy country right now, are just an election cycle or two away. And

0:49:16 Thomas: Yeah. Yeah.

0:49:17 Matt: Especially talking to older people who can remember their before times and having to leave in the after times. Times. The same time, as a lawyer working with some of the least advantaged people in our systems for the last 20 years, I've seen in our systems that they're worst. But I still believe there are ideals in our legal system that are worth preserving for as much as I want to change.

And I don't blame people who want to throw the whole thing out at this point, but I do believe that due process of law can work, that the neutral application of justice can work when you have have people of good faith in these systems administering it. And I'm just getting emotional talking about this a little, especially as I'm sitting here within shouting distance of where the Declaration of Independence was famously read.

The future that this puts us on, I sincerely believe, is one in which it's not safe to make shows like the one that we're making right now. Not to make this about us, but a future in which running for office against the ruling party could put your entire family in danger. Future in which we start to scorn everything that we celebrate. And I think that that is really something that we have to talk to to about. I've seen a lot of people making jokes about this.

We've made some jokes about this today. But this is dead serious. This is so important. We don't live in the country that I've just described, but we're just an election cycle or two away. And I just want to try to offer some hope now that I've just settle with that.

I just, thinking again, from the perspective of asylum seekers and thinking about the possibility, as I've been thinking about for years now, about what it would look like to be an American asylum seeker, having to go to Canada or France or somewhere else and make my claim as to why I'm afraid of the American government. And is not an impossible thought at this point. All of that said, let me just say a couple of things.

Because it's very important to me on this show that we try to offer people hope. We offer people things they can can actually do beyond. And of course, the first thing we're going to say is to vote, but I want to talk about things beyond that. First thing I want to say, is that these kinds of movements, the Trump movement, particularly, were fueled by older people.

I think that one of the best things we can do right now is tell the younger people around us that this is not normal, that this is not how presidents are supposed to operate, this is how government is supposed to work, because I think they need the youth to make this work, to have a future in any of these movements. And right now, this this is a very, on average, older movement. From what I've seen of them and my teaching and just people around me, rising generations have a much better sense of moral clarity and

0:51:25 Thomas: One thing I feel like I've heard from the kinds of people that you're talking about that you've worked with is at a certain point, especially a lot of these very war-torn places where the average age just plummets because of conflict and all that, people have access to the history and memories that they would otherwise. And often the memory of the better system they might have once had is almost lost. And like, on one hand, yes, it's great that, people you certainly seem more progressive and even radical in ways that I like for sure.

But I also worry many of them, I'll see people talking about how it's insane when you start to get older to think about like 2016 was now eight years ago. Like there are people who maybe what if they were 10 when Trump was elected? Their whole like conscious lives, political conscious political lives is in under a different paradigm. And I worry, like, that can really eat away at stuff. If we forget at you norms that we might have once said, that there are going to be a lot of people of voting age who don't remember when we had those norms, even.

0:51:39 Matt: Exactly. Exactly, exactly. Yeah.

0:52:24 Matt: That's exactly I'm saying, is I think we should have those conversations about what... And again, this This country has never been perfect. I'm not saying that the 90s were the best time, But I clearly remember, you can clearly remember a time when things were at least somewhat normal and working more or less along the lines of what they were supposed to be doing. I think that just reminding as often as possible, younger people, because I do see younger people understanding that there are some things happening right now that have to be stood up against.

And I know that as long as we have the students with us, as long as younger people understand that, then I think there's a chance. But really do. And that's why I'm saying that we have these conversations now before this gets any more normalized, any more institutionalized, before we head into the kind of place that I'm talking about. I just want to say too, and I've said this before, but the that really matter are local politics at this point.

I mean, do your part, obviously, to vote and to push national candidates if you're living in a place where that's in doubt, in a swing state. It. The fact is that you can't stop the next Tom Cotton or J.D. Vance or Ted Cruz or any of those people. Those people are not inevitable either. And you can run against them if you have to. That person might be running for city council, might be 27 years old right now running for city counsel, and you can stop them.

You can keep them from any further career. Local politics are really the only thing that we're going to be able to influence, I think, and really have been for quite a while, which is why I also wanted to say, just for everybody here, talking to myself too, but look out for your neighbors and get to know your neighbors, know who they are, and think about how you can be self-sufficient and how you can work with your neighbors apart from the government.

Because I think that's, you know, I'm not trying to be too alarmist here, but I just think we have to think ahead about the power of mutual aid and about the power of looking out for each other, because that's all we got.

0:52:30 Thomas: Of course not. Yeah. Yeah, I think when it comes to this and if Trump is going to win in November, I don't think we can be too alarmist about this. I really don't. Doesn't mean everything that we every crazy thing we think of is going to happen, but it means that there may not really be a meaningful limit on what could happen. And

0:54:08 Matt: I agree. Right. And again, thinking beyond this election cycle, I'm thinking about the next few election cycles. And I'm think about what we normalize in this, what is looking to be an extreme administration. And we're going to talk a little more, I think, as we're coming up on the election about what this administration is actually promising to do and how far outside the window of normalcy we're talking about. As as these things become normalized, I don't know how we get them back. So now's the time.

0:54:39 Thomas: No, yeah, there's no way that under more presidents, don't they give up power. You know, and it's because the government has been just absolutely frozen. So often it's like the only way to get the good stuff done is to retain some of that power that maybe they shouldn't have. So it's for all those reasons. But anyway, I guess if I were to say anything that was remotely hopeful, what I think a lot about in terms of this often is the the power of American culture. And sometimes I just hope if there's any way that can be powerful enough to set some limit on this, I think that a massive amount of people who are not politically aware and don't totally understand what's happening here that I think as become more clear in a worst case scenario, that I I think we'll have a major problem here. And I just have to hope, like, keep the politics in sports and think things that major followings, you know, sports, culture, movies, all that stuff, think that it bothers the right that they aren't a part of any of those things

0:54:45 Matt: No.

0:55:03 Matt: Yeah.

0:55:33 Thomas: Meaningfully. And I thinkthat that wonder if that's, you our last remaining tool in this is just like, can DON'T know how powerful that is in the face of, you fascism. I, I Don'T know, but I ,I feel like it's, a tool we have and I, I it's resilient. I DON't know. But

0:55:33 Matt: So much. Yeah, it is. Think it's very powerful. And one of my personal heroes, the tuba player at Charlottesville. Have you seen that video of the tubo player? Might incredible. I'll got a guy, just one guy with a tuba, following white nationalists around playing Oompa music behind them.

0:55:53 Thomas: Don't think I have. Oh God, that's awesome.

0:55:59 Matt: It is perfect because they get so mad. And he's putting himself in pretty grave danger by doing this. But But you're watching videos of people marching around trying to be very serious and fascist, and you've got the dun -da -dun, da -dunk, da da -da da -duck, right? I mean, that's perfect. That's they hate, is it's counterculture, right, and they get very mad. They can't control the countercultur. And as long as we have that, I agree with you, that as long a satire exists, as long as we can point out their foibles and everything they're doing wrong and what they're doing to us, we still have a chance.

0:56:27 Thomas: Right. Well, we're going to stay extra, even though this was already already extra and it's be a tight turnaround at a time when that's already hard for me, but I really think this is that valuable. So we're going to stay extra to answer some patron questions on .com slash law, because we had a lot of them. So so much for listening.

Support the show if you can, but please just and please realize that voting against Trump in November is incredibly important and is not, it's not, it doesn't solve this. No one thinks it solves everything. It is a incredibly necessary step that if we fuck that up, I'm very scared for what happens.

I'm incredibly scared for what happens, please and encourage someone you know to vote, someone in your family, someone, whoever, please encourage people to vote and, you I don't know, have a quick spiel ready about how important this is in the most effective way you think possible. And it's all we can do. I mean, we're past the point of having the luxury of being able to complain about the incompetence that might have gotten us here. We don't Have that luxury, it doesn't do anything right now. It just doesn't.

0:57:28 Matt: The very least, we cannot have Trump appointing any more Supreme Court justices. And this opinion certainly underscores that. So don't stay home.

0:57:35 Thomas: Well, thanks so much for listening. Thing. We'll see you for Monday for of immunity for a different kind of immunity. That's gonna be talking talking about qualified immunity, a excellent guest on there as well. So look forward to that. And patrons, look forward to a little extra here where we answer some of your questions.

0:57:50 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.

0:58:07 Thomas: Can't remember bloody sunday it was so what is the the name for it that's it sorry my brain's a little crazy and

0:58:10 Matt: Said the Saturday Night Massacre? Yeah.