0:00

This is the Kato Daily Podcast for Friday,

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April 26, 2024. I'm Caleb Brown. Just what

0:10

kind of immunity should presidents have

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for acts they take while president,

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even acts that are clearly criminal in

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any other context? That's part

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of what the Supreme Court will

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consider following yesterday's oral argument where

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Donald Trump's lawyers argued that immunity

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from prosecution for former presidents should

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be extremely broad. Kato's

0:30

Clark Neely discusses the case and

0:32

how the high court might weigh Trump's

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various pending criminal charges. Clark,

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to the best of your ability, what

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were Trump's lawyers arguing

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before the US Supreme Court? I

0:45

think the most charitable take on their argument

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is that of necessity, a president and

0:50

former president must have at least some immunity

0:52

from criminal prosecution for at least some of

0:54

the decisions and actions that they undertook while

0:56

they were president. That's not

0:59

a frivolous argument. Think about the kinds

1:01

of decisions that presidents make. Sauer, who's

1:03

Trump's lawyer, used the following illustration in

1:05

his intro. What about President

1:08

Obama's decision to use drones to take out people

1:10

abroad, including in one case, if somebody who was

1:12

an American citizen, do we really

1:14

want presidents worried about potentially being prosecuted for

1:16

murder after they leave office? That is not

1:18

a frivolous question. All right.

1:21

But beyond that, Trump's

1:23

lawyer was peppered with some

1:25

questions, notably from Justice Sotomayor.

1:28

What if the president decided

1:30

that a political rival was,

1:33

I don't know, dangerous

1:35

or bad or something and had

1:37

them executed? Yeah, exactly. And so

1:39

that's where the action is in this case, right? Is

1:41

trying to figure out what exactly is the

1:44

scope of legitimate presidential

1:46

immunity. And you can come up

1:48

with any number of hypotheticals to try to test the

1:51

outer bounds of this theory.

1:53

And I think that's a good one. But

1:55

then, of course, this case, the

1:58

prosecution of Trump presents some somewhat

2:00

thorny questions because his argument is, look, I

2:03

wasn't trying to steal an election.

2:05

I was simply trying to exercise

2:07

my constitutional right to raise concerns

2:09

about the way in which the

2:11

election was conducted, the votes were counted

2:13

and certified, et cetera. And

2:16

not only is that not a criminal act, but even

2:18

if some of the things that I did may have

2:20

been in kind of a gray area, I need immunity

2:22

from that. Just like any other president would need immunity.

2:25

You know, both candidates and Bush v.

2:27

Gore had issues with the way the election was conducted.

2:30

Could they have been criminally prosecuted, et

2:32

cetera? So as much as

2:34

I want to sort of dismiss this

2:36

case or characterize it as yet another

2:38

unprincipled Trump effort to get out of

2:40

responsibility for genuinely bad and indefensible conduct,

2:42

there's more to this case, unfortunately, than

2:45

I think a lot of us maybe

2:47

would have conceded going into it. And

2:49

the line drawing questions are challenging in

2:51

the abstract, but I don't think they're

2:53

going to prove to be difficult in

2:55

this case. And I don't think that

2:57

there are five justices who will

2:59

sign on to the proposition that

3:02

Trump should be immune from criminal

3:04

prosecution from whatever he did on

3:07

January 6th and the run up to those

3:09

efforts to frustrate the regular

3:12

and lawful process of determining who

3:14

the winner of the 2020 election

3:16

was. He clearly

3:18

has been alleged at least to have

3:20

gone outside of any bounds of what

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could be sort of plausibly protected through

3:25

any... Again, I would say

3:27

principled application of immunity

3:29

in this case. But

3:31

as he so often does, he's essentially trying

3:33

to suggest, well, what if I weren't such

3:36

a crook? What if I had conducted myself

3:38

in a way that was at least arguably

3:40

sort of inside the bounds of what might

3:42

be reasonable? What would we do

3:44

then? I think the Supreme Court is going to say,

3:46

well, we'll figure that case out if and when it

3:49

arises, but you don't fall in that category. I

3:51

was looking through the various newspapers

3:54

coverage of just his criminal

3:56

and civil proceedings that are

3:59

pending. And under the

4:01

category of all the rest, the

4:04

New York Times put stealing

4:06

classified documents and threatening state

4:08

election officials with jail

4:10

time if they don't turn their state

4:12

his way in the 2020 election. Those

4:15

are things that have to weigh on

4:17

the Supreme Court because those are pending

4:20

cases about this guy. You

4:22

know, it's funny, I think that's right as a

4:24

matter of human nature, but I'm not sure that

4:26

it's technically sort of legally right. As

4:28

I'm sure you're aware, and many of our listeners are

4:31

aware, there are rules of

4:33

evidence that prevent prosecutors from introducing, for example,

4:35

evidence of other bad acts, prior crimes, for

4:37

example. Because in our system, you're not supposed

4:40

to be convicted of just being a generally

4:42

bad person, and you're not even supposed to

4:44

be convicted because the jury thinks you have

4:46

a propensity for certain kinds of behavior because

4:49

you've done it before. I think there are

4:51

really sound policy reasons for

4:54

not allowing fact-finders

4:56

and adjudicators to consider somebody's prior bad

4:59

acts as a general matter, or

5:01

essentially trying to say, well, you know, basically

5:03

you're a crook, so probably you did this

5:06

thing that's been charged specifically in this case.

5:08

On the other hand, as I said a moment ago,

5:10

I think there is kind of an aspect of human

5:12

nature that we know that there are some people who

5:15

it's kind of reasonable to just call them

5:17

a crook or a fraudster. And I

5:19

think most of us, or many of

5:21

us, feel that Trump is that kind

5:24

of person, and that those

5:26

kinds of people do have a propensity for

5:29

breaking laws and defying norms. And

5:33

ultimately, I think most people

5:35

would be uncomfortable with the idea that Trump should

5:37

just get a completely free pass, whatever it is

5:39

he's been accused of doing, and that there needs

5:41

to be at least some process

5:43

by which, you know, the government

5:45

can determine and put that question,

5:47

for example, to a jury. Did

5:50

he cross the line when he called the Georgia Secretary

5:52

of State and asked him to find another 12,000 votes?

5:56

And was he just asking, or was he threatening? Right.

5:59

And that's it. an open question that

6:02

a jury in Georgia will

6:05

have to determine, perhaps? I

6:08

think so. And I think they probably should.

6:11

I mean, I've listened to that call. I

6:13

hope everybody listens to that call. I think

6:15

reasonable people can differ about whether Donald Trump

6:17

crossed the line in the context

6:20

of that call and whether he was making some kind

6:22

of a veiled threat. I personally think he was. And

6:24

if I were on the jury and, you

6:26

know, it all came down to what I took from that

6:28

call, which it probably wouldn't, but if it all came down

6:30

to what I took from that call, I'd probably lean in

6:32

favor of a conviction because I think he was threatening. He's

6:35

not your next door neighbor. He's the president of the

6:37

United States at the time he's making that call.

6:39

And that carries a lot of weight. But anyway,

6:42

I totally agree with your premise, which is this

6:44

has to get sorted out somehow.

6:47

Not all allegations merit

6:49

criminal prosecution, certainly, and probably

6:51

some alleged conduct should be

6:53

shielded by at least some kind of

6:55

immunity. Again, the easiest case would be

6:57

a president's decision as commander in chief

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to order a specific use

7:02

of military force abroad. We

7:05

don't want to live in a world, I don't think most of us

7:07

want to live in a world where a president has to worry

7:09

about getting prosecuted for making

7:11

that decision after they leave office.

7:14

But neither do we want to live in

7:16

a world where that basic insight becomes carte

7:18

blanche so that no president can be criminally

7:20

prosecuted for anything they do. And

7:22

even if a president commits treason while

7:24

in office, we're limited to just impeaching

7:26

and removing them from office and the

7:28

Senate can say, well, you can never

7:31

run for office again. And

7:33

that's the extent of our remedy and our response. I

7:35

certainly don't want to live in that world. And I

7:37

don't think that's the world that the Constitution envisions.

7:39

Are Trump's lawyers essentially,

7:42

though obliquely, asking

7:44

that essentially all of these criminal cases

7:46

just go away? I think that's

7:48

a fair characterization of the

7:51

implications of the argument that

7:53

we heard yesterday and that

7:55

it may be that

7:57

if pressed, Trump's lawyers would say...

7:59

say, look, if he

8:01

were accused, for example, of, I don't

8:04

know, murdering a family

8:06

member in the Oval Office in

8:09

a fit of passion or fury, that

8:11

would not be immune. But

8:13

I kind of wonder if we get some pushback if it turned

8:15

out it was a staffer. Because, well,

8:17

maybe disciplining staffers

8:19

is within the

8:21

office of the president. And even though he might

8:23

have gone about it in a way that most

8:26

people would disagree with, that's still arguably an official

8:28

act as president. I mean,

8:30

I'm being a little bit flippant here,

8:32

but I do think that his lawyers

8:34

are pressing a conception of presidential immunity

8:36

that is well beyond anything that

8:38

I think the Constitution plausibly provides,

8:41

but equally important, or perhaps equally

8:43

important, well beyond anything that is

8:45

sort of a reasonable

8:47

person who was open

8:50

to the concerns that are very real here.

8:53

Namely, we don't want presidents looking over their

8:55

shoulder about every decision they make as president,

8:58

that his lawyers are pushing well beyond what reasonable

9:00

people would agree is fair to

9:02

be concerned about. And they're really just making an

9:04

argument that's trying to get their candidate who stands

9:06

credibly accused of serious criminal acts, repeated criminal

9:08

acts off the hook across the board. So

9:11

yes, I think that would be their ultimate

9:13

argument is that everything that's been charged so

9:15

far in the four pending criminal cases against

9:17

him, he's immune from for the basic reason

9:19

that they flow from his activities as president

9:22

of the United States. Was

9:24

there anything notable in the questioning from

9:26

the justices? Well, yes,

9:28

I think, I think, you know, I mean,

9:30

look, there's the very fact that we're having

9:32

the Supreme Court arguments is the first time

9:34

in the history of this country that a

9:36

former president has been criminally prosecuted. That's notable.

9:39

I would say that a

9:41

lot of people are noting the fact that

9:43

Justice Kavanaugh seemed much more

9:45

receptive to at least some

9:47

of Trump's arguments than most of

9:49

the other justices that may be in part due

9:52

to his service. He was an

9:54

assistant counsel to the president, so he has a

9:56

lot of firsthand experience with some of these issues.

9:58

It's not surprising that he might have that. perspective,

10:00

but I'd say the back and

10:02

forth. I mean, there's something fundamentally

10:04

unseemly, right, of essentially an argument

10:07

in which it all comes down to, well, let's

10:10

just say that my client did commit some crimes. We

10:12

need to distinguish between the ones he gets a free

10:14

pass from and the ones that he doesn't get a

10:16

free pass from. That really was the essence of the

10:18

argument. And I think there's something kind of fundamentally

10:21

unseemly about that. But unfortunately, when

10:23

you elect somebody to the

10:25

presidency who has the character of

10:27

Donald Trump and the attitude of

10:29

Donald Trump, you will find yourself

10:31

eventually having to answer a lot

10:33

of unseemly questions, as we have

10:36

been doing lately and unfortunately as

10:38

we may be in for, depending

10:40

on what happens six months from now. How

10:43

heavily should it weigh on justices?

10:45

I know they're trying to create

10:47

a sustainable system, right, of executive

10:49

authority going forward where the lines

10:52

are as clear as they can

10:54

be for the people who hold

10:56

those offices. How

10:59

cognizant do you think they are or

11:01

should be about the idea

11:03

of, well, if we give

11:05

this guy a free pass, what kind

11:07

of candidates do we get down the

11:09

road? You bet. I

11:11

do think there's a moral hazard here. I'm

11:13

not sure how much the fear of criminal

11:15

prosecution deters people like Donald Trump

11:17

from seeking high office. Probably not all that

11:20

much. But it's

11:22

not a secret that at

11:24

least some people who seek high office have

11:27

a basic lack of character. George

11:29

Santos obviously is a bad

11:31

person. I think Senator

11:33

Bob Menendez is pretty clearly a serial

11:35

bribe taker and a corrupt senator. I'm

11:37

not going to say that that's representative,

11:39

but positions of power do tend to

11:41

attract people who are interested in abusing

11:44

that power and in some cases personally profiting

11:47

from it. So I think it'd be foolish

11:49

not to have that in mind to at least

11:51

some extent. But the flip side of that coin, unfortunately, is that

11:53

we really do live in a world where every single one

11:55

of us could be plausibly or almost every single

11:57

one of us could be plausibly charged with having

12:00

committed criminal act probably within the

12:02

last few months, if not days.

12:04

And I would hazard a guess

12:06

that nearly every senior executive

12:08

branch official could plausibly be

12:10

charged with serious criminal conduct

12:12

for at least something that

12:14

they've done in office. And

12:17

that is a backdrop that even if they

12:19

don't fully articulate it, I think has to

12:21

be on the mind of the

12:23

justices when they grapple with these questions. And there

12:26

was a really striking exchange at one point

12:28

where Justice Alito said, in effect, to the

12:30

Solicitor General's lawyer Michael Drueben, in

12:33

effect, like, yeah, we've all worked

12:35

in the Justice Department. And I'm sort of

12:37

being, again, a little flippant here. It's not

12:39

that they all have, but a disproportionate number

12:42

of judges have. And

12:44

we know that our colleagues were honorable people.

12:47

But how much

12:49

protection is the professionalism of

12:52

a DOJ prosecutor or

12:54

even a grand jury against a politically

12:56

motivated prosecution? And I think the subtext,

12:58

or at least I took the subtext

13:00

to be not much, not much protection.

13:04

And that's, I think, a

13:06

really valid and important concern. I am

13:08

not going to say that I think

13:10

the average DOJ prosecutor wakes up every

13:12

day hoping to get the opportunity to

13:14

initiate a dubious, politically motivated

13:17

prosecution. I don't believe that whatsoever. I

13:19

think most of them are professionals trying

13:21

to do their best to do an

13:23

often difficult job. And they also have

13:25

to not be blind about the temptations, the

13:27

motivations, the kind of people who rise in

13:29

an environment like that, the kind of political appointees

13:32

who make the decision about whether to pursue

13:34

certain people. There are already people

13:36

who are openly talking about payback. And

13:39

if all that's required is the ability

13:41

of some prosecutor to sort of creatively

13:43

string together some theory about how you

13:45

committed a crime in office and

13:47

you can be in the bull's eye, well, guess

13:49

what? I think that's coming. And so the justices,

13:52

to the extent, the nature of their questioning yesterday,

13:54

and there their seeming willingness to go

13:56

outside the four corners of the actual case in front

13:58

of them, which is actually a I think a pretty

14:00

easy case. You know, does Trump have immunity for all of

14:02

the things that he's been charged with in connection with January

14:04

6th? It's an easy answer. The answer is no.

14:07

But the court was really interested, I think, more

14:09

interested than in the average case of thinking through

14:11

the implications of not only their answer to that

14:13

question, but their rationale. And I think

14:15

they clearly have at least one eye on the effect

14:17

of whatever rule they announce in this case on

14:20

future administrations and the decision-making

14:23

process of senior officials in

14:25

those future administrations. Thank

14:31

you.