The consequential question before the Supreme Court on the limit and scope of presidential immunity has been decided, in three essential buckets. Veteran prosecutors Andrew Weissmann and Mary McCord decipher the ramifications for the former president, for the January 6th case brought by Special Counsel Jack Smith, and for the broad constitutional authority of the presidency itself. And they are joined by Trevor Morrison, NYU law professor and Dean Emeritus, to discern the finer points of the decision and the warnings cast in dissents by both Justice Sotomayor and Justice Jackson.
Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hello and welcome to “Prosecuting Donald Trump.” It is Monday, July 1st, the last day of the Supreme Court term, and I’m Andrew Weissman. I’m here with my co-host, Mary McCord. Hi, Mary.
Mary McCord: Hey, Andrew. I was about to say good morning, but it’s not morning anymore.
Andrew Weissmann: Yes, it’s 1:05. The two of us have been speed reading this morning because, as anyone who is listening to this knows, the Supreme Court has issued its decision in the presidential immunity case, and that is something we’re going to spend a whole episode talking about, going through the decision, the majority, the dissents.
We also have a guest, somebody who people may remember. He is an expert on presidential immunity, Trevor Morrison. But first, Mary and I are going to talk about that decision. So, Mary, I’m going to turn it to you because this is one doozy of a decision. How do you want to start us off?
Mary McCord: Yeah, I mean, you know, we could go through, you know, what the majority held, or we could have some observations, which is what I’m going to do, about sort of a open question, I think, in my mind about how narrow or how broad this ruling is, because the chief justice who wrote for the majority wants to try to tamp down any fear-mongering that this is really the end of democracy because it’s elevating presidents above the law.
And the dissent, to the contrast, are saying, oh, no, no, no, this is exceedingly broad. And it basically gives, I mean, Justice Sotomayor and also Justice Jackson, in a separate dissent, both go back to the examples that Florence Pan, a judge on the D.C. Circuit, raised with Mr. Trump’s attorney during oral argument on this case in the D.C. Circuit. Could a president order SEAL Team Six to assassinate his political opponent? And their fear is the answer, given the majority’s opinion, is yes.
Andrew Weissmann: So why don’t we start with how do you read the holding here, the actual holding, and then we can talk a little bit more about where it might go. And then also, one way to think about this is big picture, what is it saying about the presidency? And the smaller picture is what does it say about this case? Like, where does it leave this case, the January 6 case?
But why don’t we start with the bigger picture? Because in many ways, you know, that’s the thing that’s maybe more important to our country. And then we can sort of take it in like an onion and peel back the layers.
Mary McCord: Yeah, well, that’s interesting, right? Because after we talked about the argument, one of the things I think you and I sort of criticized some of the justices for is making this a case for the ages, right? Where some of the justices indicated that they needed, you know, this lay down the law for the future. And certainly, Jack Smith and the government had argued, and I think you and I generally agreed with this point, but correct me if I’m wrong, that, you know, you actually don’t have to decide every possible permutation of when a president might be immune because the allegations in this case are what are in front of you and this doesn’t have to be a case for the ages. It’s never come up before. There’s no real reason it would come up again.
But as you said, the majority’s approach was very much this is establishing sort of a rule for the ages. And just in terms of the basics, which listeners have probably heard by the time this podcast airs, you know, the three buckets of things the Supreme Court majority discussed were absolute immunity for acts that are within the president’s core constitutionally committed duties and responsibilities. Thing one, we’ll come back to that. Thing two, for other things that are within the outer perimeter of a president’s official acts, there would be at least presumptive immunity.
But that could be rebutted by the government upon a showing that prosecution, even for those things within the outer perimeter of official acts, would not impair or impede the executive functions, the power of the executive to do what he has a responsibility to do. We’ll come back to what that means. And then finally, unofficial acts, no immunity. So how this all works together, I think, is where the rubber meets the road in terms of applying it to this case and in any future case.
Andrew Weissmann: Can I give a slightly different read that I definitely have the three-bucket view, but —
Mary McCord: But how you apply it involves far more questions than three.
Andrew Weissmann: Yeah. And I think my concern about the middle bucket is that I think what the court is saying is that if it is ultimately determined that the conduct at issue is official conduct, it is immune. And so if you’ve got official conduct, it’s immune. If you’ve got unofficial conduct, it’s not immune. So, you know, personal conduct. So that’s really borrowing from the civil standard of presidential immunity.
The reason I think they can focus on this issue of absolute immunity is they say, look, if its core functioning of like something that’s been exclusively delegated to the presidency, you don’t even have to sort of get into it. There’s not a lot of fact finding. So they actually give an example of that, which is the president’s communications with the attorney general, they say, is core and absolutely immune.
And that means all the allegations about Donald Trump’s communications with the Department of Justice, even though, by the way, they’re not with the attorney general himself. They were actually with other people who were wanting to be the attorney general, but they basically seem to be kicking that out as part of saying absolutely immune and then they say —
Mary McCord: Hang on. I wouldn’t say basically or an example. I think they rule that is off limits.
Andrew Weissmann: Oh, yeah, yeah, yeah. You’re right. You’re right. Oh, yes.
Mary McCord: That’s an official act. That’s off limits. No prosecution for that.
Andrew Weissmann: Sorry. I shouldn’t have said basically. You’re absolutely right. And we can come back to that because that has such incredible, dire consequences when you’re dealing with Donald Trump talking about weaponizing the Department of Justice.
Mary McCord: That’s right.
Andrew Weissmann: And you now have the Supreme Court saying, oh, yeah —
Mary McCord: They are new.
Andrew Weissmann: — there are certain core functions. Those are absolutely immune. I mean, that to me is just beyond shocking in terms of what they’re doing. You don’t need to worry about, oh, hypotheticals. And Chief Justice Roberts denigrates the hypotheticals that Justices Sotomayor and Jackson give. But these aren’t hypotheticals. You’ve got a former president and a person running for office saying this is what he wants to do and he’s —
Mary McCord: But before we move to the next bucket, if that’s what you were going to do —
Andrew Weissmann: Yeah.
Mary McCord: — I do want to also mention that in this idea, this idea of what’s core constitutionally committed to the president, core constitutional functions, that wouldn’t include, I don’t think, in any typical reading of the Constitution, talking to your attorney general. Because what I think most of us think of when we think about constitutionally committed presidential functions, it’s things that are explicit in the Constitution.
Things, for example, that Jack Smith argued were core constitutional functions, the pardon power, the power to appoint ambassadors, the power to recognize foreign governments. Those are the kind of things. Instead, the majority expands core to, well, the president has the power under the Take Care Clause to see that the laws be faithfully executed. Within that means, as part of the executive branch, he has discretion over what the Department of Justice investigates and what it does, and that’s part of his Take Care Clause functions. Therefore, that’s core. That is a very expansive reading of core.
Andrew Weissmann: Exactly. This is why it’s great doing this with you, because that was going to be my second point, plus you said it so much better than I would have, which is that we all thought, and I know Trevor had talked about this core piece being something that would be absolutely immune, but we didn’t think core was going to be expanded to be like Take Care Clause. If it’s Take Care Clause, I mean, that is so malleable. But anyway, so then you’ve got this second bucket, and the second bucket is where I do see what I’ll say is a slight silver lining in connection with —
Mary McCord: Same.
Andrew Weissmann: — this case —
Mary McCord: Right.
Andrew Weissmann: — but a terrible precedent big picture.
Mary McCord: Yeah.
Andrew Weissmann: And the reason it’s a terrible precedent big picture is that the court goes out of its way to say there’s this presumption that what the president does is in his official capacity, and that it says, you know, even if you’re talking to state officials, that could be within your official capacity. Even if you’re tweeting, it just gives tons and tons of examples of why you would be able to view something as part of your official functions, and super expansive. And the only example they really give of something that might be unofficial is when they say, essentially, it says, perhaps as a candidate.
Mary McCord: Right.
Andrew Weissmann: And so that very much goes back to something that Judge Pryor on the 11th Circuit focused on when he was dealing with Mark Meadows. And Mark Meadows said, I was doing all of my outreach to Georgia as part of my official functioning as chief of staff. And Judge Pryor said, no, you’re not, because there’s no function there. And that’s —
Mary McCord: And by that, just to take your no function, meaning there’s no federal government authority to direct how states send forth electoral ballots or choose their electors. And so he was looking at what I think is a logical legal way to analyze this, is something within the federal government or the executive branch authority.
And if it’s not, because the Constitution commits to the states how to decide on who their electors will be for president, then you can’t say it’s official acts. But as you just were saying, this goes beyond that. Well, you know, he has a bully pulpit and he can certainly raise issues of election fraud with state officials. And so you have to parse it.
Andrew Weissmann: Right. They basically say just because he has no role doesn’t mean that he doesn’t have an interest in talking about it to the public. I mean, it is the most expansive view, but they do say that it’s very fact intensive.
Mary McCord: That’s right.
Andrew Weissmann: There isn’t a factual record here. And so they do send it back to Judge Chutkan to have a factual hearing. And that means that she will be able, after briefing, which they also say is something that she needs to do, meaning slow, there needs to be briefing. And she, though, can have a factual hearing on this issue.
And then finally, there is this third bucket, which is the personal, but as we’re talking about it, it’s really hard to imagine what personal is. Now, I would say the New York case where he is sending from the Oval Office signing checks in connection with a hush money scheme is going to be personal. They don’t say that. But I wanted to raise something that you noted, Mary, which is the dissents raise the Judge Pan issue of, can you order SEAL Team Six to kill somebody?
And this would be, can you order the attorney general to prosecute somebody who’s a political rival? And what’s remarkable to me is the only response from the majority is to say those are fanciful.
Mary McCord: Yeah. Are they?
Andrew Weissmann: They don’t actually say —
Mary McCord: Yeah.
Andrew Weissmann: — how will the test —
Mary McCord: Apply.
Andrew Weissmann: — deal with that. And the test, I hate to say this, because this is what’s so scary, outrageous. I know this has been a very difficult week. If you do not think that the Supreme Court is on the ballot, this decision, I think, leave aside the Trump trial, because I never thought that was going to go to trial before the election and this at least allows a hearing, which I also thought might be possible, but now we know is possible.
But big picture, this fundamentally changes the role of the presidency in our democracy. We just had Chevron, which basically is a big blow to the administrative state, and clean water, health, clean air, basically the regulatory state, you know, from FDR on has a huge blow. But if you think that was a big blow, this to me means it is so important that you’re electing a president who has some internal sense of propriety and norms as to how you’re going to exercise power, in the same way that you want somebody who’s going to exercise the pardon power judiciously.
Here, because of this decision, it is now, I think, beyond imperative that you are electing somebody like George Washington, who understands not running for office because of needing to have a peaceful transfer of power, because the Supreme Court, I think, in this majority decision has gone full MAGA.
Mary McCord: Well, I’m speechless there. I hear all of these concerns. And part of the reason I started with the idea of let’s think about is this as broad as the dissent says it is or as narrow as the majority tries to send it is, is because I’m trying to think if I’m continuing to litigate here, what are my arguments against that broad reading, right?
Andrew Weissmann: I love this.
Mary McCord: What are my arguments against —
Andrew Weissmann: Tuck me off the ledge. Tuck me off the ledge.
Mary McCord: Yeah. And so, yeah.
Andrew Weissmann: Yeah, I just want to say on page 37 what Chief Justice Roberts says, because he tries to give a narrow reading. And he says, as for the dissents, they strike a tone of chilling doom that is wholly disproportionate to what the court actually does today. Conclude that immunity extends to official discussions between the president and his attorney general and then remand to the lower courts to determine in the first instance whether and to what extent Trump’s remaining alleged conduct is entitled to immunity. So —
Mary McCord: Exactly.
Andrew Weissmann: — that’s the description.
Mary McCord: So that’s where the open door is, right? And so if I am Judge Chutkan and I am Jack Smith, I am thinking, how do I apply what the majority has told us and win? Of course, Judge Chutkan is not thinking, how do I win? She’s the judge. But if I’m Jack Smith, how do I apply that here and prove up to the satisfaction of Judge Chutkan and in a way that I think will eventually, if this case doesn’t go away, with a Trump win and a dismissal of the cases, a win in the election.
If this case remains and there’s something to still be litigated, what arguments can I make that will fit into the analysis that the Supreme Court majority has said I have to engage in? Which goes back to that bucket, too, right, which is first, Judge Chutkan will have to see with the benefit of briefing. I think a lot of this will be legal briefing. Some will be factual development, particularly when it comes to some of these discussions with state legislators and use of the quote, unquote “bully pulpit” to speak to the members of the public.
She’ll be deciding are the acts official or unofficial acts, right. And official within the outer perimeter of official acts. And even if she were to determine that something is official acts, the majority has been clear that Jack Smith and the government get the opportunity to rebut that by showing that a prosecution for those official acts would not so interfere with executive functions that it would, you know, basically cause the type of separation of powers problem that the court says it’s trying to avoid.
And so there’s a couple of steps there, right? Could be she would just determine on the legal analysis in the factual record. Not official. Could be. She says it is official. But let’s just take, for example, communications with Brad Raffensperger about finding 11,700 hundred votes, right? She could say, so under the Supreme Court’s guidance, I’m not suggesting this right answer. I’m just trying to put like some context, right.
Andrew Weissmann: Yeah.
Mary McCord: She could say, okay, the Supreme Court said, you know, there’s an interest in the presidency in speaking to legislators raising concerns about election integrity, et cetera. So I think that him having a conversation with Brad Raffensperger, expressing to Brad Raffensperger, the secretary of state of Georgia, that there are anomalies in the counting of the votes in Georgia and that he should reconsider these or take this alleged fraud into consideration. I think that’s official acts.
Jack Smith could come back and then make an argument. Yes. But here he went well beyond that. First of all, there was no proof of fraud. As the secretary of state, Brad Raffensperger explained to him, they’d already done an investigation. They’d already done audits. They found no evidence of fraud. And the president, President Trump, went further than that and said, I just need you to find these and actually implicitly threatened the secretary of state, as you may recall from that very lengthy, I think, 102-minute phone call.
Andrew Weissmann: Yes, I do.
Mary McCord: And then Jack Smith’s argument would be prosecuting for that absolutely does not interfere with executive function, taking care that the laws be faithfully executed, because this is really just about trying to pressure, coerce someone into making up votes. Then Judge Chutkan could have in front of her then something to be the basis of saying, okay, that is something that is permissible for you to be prosecuted on.
Two last points. Two of the other challenges with this ruling is that everything I just said, one of the other really bizarre points made by the majority is that you can’t look to the president’s motive for doing things if they’re once they’re within official acts, which means as corrupt as that motive may be, as bad as it may be, as criminal as it may be, that can’t be considered if the act itself is official.
So to me, that’s a little bit in conflict with saying the government can rebut whether prosecution for this official act would infringe on core executive, because what part of that rebuttal, to my mind, would be to what we were just talking about. He’s corruptly trying to get Brad Raffensperger to make up 11,700 votes.
Andrew Weissmann: Yes, absolutely. Because if you just sit there and say you can take any action and describe it in a way that makes it sound like it would be within the outer perimeter, is there anything wrong with the president calling the Georgia secretary of state?
Mary McCord: Right.
Andrew Weissmann: No, of course not. Is that criminal? Now, they are allowed under this decision, to put in the substance of the call. But if looking at his personal motive is so relevant. And by the way, I teach Fourth Amendment law. The court has allowed you to look at intent and motive in deciding what actions you took and how to evaluate what actions.
Mary McCord: Yes.
Andrew Weissmann: And also, of course, motive and intent, because we’re talking about a criminal matter, is core. But anyway —
Mary McCord: It’s key, right? It’s key.
Andrew Weissmann: Right.
Mary McCord: Intent is required in almost every single criminal prosecution.
Andrew Weissmann: So how they actually deal with sort of what motive is, what isn’t, what’s in and what’s out, but that’s like, to use your phrase, thing one, which is that the state is not allowed to use motive and the court cannot consider that so Judge Chutkan could not consider it. And by the way, whatever she rules at this hearing is clearly going to come back.
Mary McCord: Can go back up. Right.
Andrew Weissmann: Right. There is like are you going to get to thing two?
Mary McCord: Thing two. Like yeah, thing two.
Andrew Weissmann: Yes, because thing two is big and that’s where —
Mary McCord: Thing two is huge.
Andrew Weissmann: — that’s where Justice Amy Coney Barrett actually —
Mary McCord: Really differs.
Andrew Weissmann: — she differs and she joins the dissents. So it’s 5-4 on the issue that you’re about to go to, Mary.
Mary McCord: Right. And, you know, it’s funny because you just said the call comes in. And that makes me think of thing two, because the call, of course, at any hearing that Judge Chutkan has, will be able to listen to the whole call and make some determinations about whether it’s official or unofficial. But if she were to determine that it is official and that it wasn’t rebutted, thing two is the majority says you cannot, government, you cannot introduce evidence of official acts even to prove up the criminality of the unofficial acts.
So once you get down to this core of something that’s unofficial that you can still prosecute on, you can’t use official acts as evidence of motive, of knowledge, of intent for the unofficial acts. Now, this would mean, for example, like I just said, if she were to conclude that the call was an official act, the Jack Smith would not be able to play that call, that recording of the phone call at trial, even if he was permitted to prove up other unofficial acts as part of the scheme, right, to actually overrule the will of the voters on January 6th. And this one so surprises me because the chief at argument —
Andrew Weissmann: Was so strong the other way, yes.
Mary McCord: Yes. I also think it’s utterly perplexing because he drops a footnote to take on this example of bribery, which is the very example that he used in oral argument. He incredulously said to counsel for Trump.
Andrew Weissmann: Yeah.
Mary McCord: So are you telling me if a president promises an ambassadorial appointment in return for a bribe that the government can only introduce evidence of the appointment, but not the motive, the reason for that appointment, the bribe? And he said that can’t be. So he deals with that in a footnote and says, well, of course the government could put on public records evidence of the ambassadorial appointment and the government could put on evidence of the demand for a payment or whatever the bribe is in return for that ambassadorial appointment. So I’m not sure how that is squaring —
Andrew Weissmann: I agree.
Mary McCord: — with what he says in the text.
Andrew Weissmann: I know exactly because I don’t know what it means to say they could put on the appointment. The appointment came from the president.
Mary McCord: Yeah.
Andrew Weissmann: And that’s an official act. I don’t understand the flip there.
Mary McCord: I don’t either.
Andrew Weissmann: So we address this so much because we were sort of saying Alito was sort of really trying to do something outrageous. But that’s where the court goes.
Mary McCord: That’s right.
Andrew Weissmann: And what’s so interesting to me is on that it’s 5-4 because Barrett goes with the dissents. But I’m so surprised that the chief justice flipped to go with the majority here because essentially, he’s doing it.
Mary McCord: But did flip (ph)? I don’t understand what they’re doing.
Andrew Weissmann: I mean, I think he did. I mean, he says it. I mean, he absolutely says.
Mary McCord: But then you have the footnote. And here’s what he says in the footnote.
Andrew Weissmann: Yeah.
Mary McCord: What the prosecutor may not do is admit testimony or private records of the president or his advisors probing the official act itself. So that is doing some limiting work. It’s just not entirely clear. And I tell you, I’ve read that footnote and the paragraphs that it drops from like four times. And I still got to think more about that.
Andrew Weissmann: It just makes it, I think, very hard to prove up, because if you can’t get into those details, how do you really show that this was done as a result of the bribe? Otherwise, you end up with a bribe and an appointment. But there always can be some legitimate. You could get money coming in.
Mary McCord: A payment of money and an appointment. That’s what you get to tell the jury.
Andrew Weissmann: Great. And I guess and they’ll be saying, but the money had nothing to do with it.
Mary McCord: Right.
Andrew Weissmann: There were independent reasons to do it. And you can’t put on any of the connective tissue. I just don’t understand how the chief justice flipped on that. I mean, and he seemed so incredulous, as you said, at the oral argument. And this is, I think, by the way, listeners should know the reason that we’re so focused on this is because, Mary, you and I are trial lawyers at heart. And so we’re thinking of just how difficult this makes a prosecution.
Mary McCord: Depending on, again, the results of hearings about what’s official and unofficial, which are going to cover anything, makes it hard also, and I know we’ll come back to this probably after we talk with Trevor or while we’re talking with Trevor, what could Jack Smith do now, right —
Andrew Weissmann: Yeah.
Mary McCord: — in light of this ruling? Yeah.
Andrew Weissmann: Perfect segue. So, let’s take a break and then we’ll come back and we will have a discussion with Trevor Morrison, who I know you and I are both dying to talk to, to get his read on this as a subject matter expert.
Mary McCord: Yep. See you after the break.
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Mary McCord: Welcome back. As promised, our friend and Andrew’s colleague Trevor Morrison joins us now. He’s a law professor and the Dean Emeritus at New York University Law School. He was previously a professor at Columbia Law School and Cornell Law School and an associate counsel to President Barack Obama. So, Trevor, we have been talking for the last half hour or so about this decision, kind of on the broad strokes of what it says in terms of what things the former president has immunity for and what things he does not.
But I think a lot of the area is gray, right? Official act immunity for things that are part of his core constitutionally committed responsibilities. But as Andrew and I have been discussing, the court read that more broadly than I think we would have. And I’m curious your view of that. No immunity for unofficial acts, but the devil is really in the details in the middle there. What about the things that are not core constitutionally committed responsibilities, but are within what seems to be quite an expansive reading of outer perimeter official acts?
So I guess I’d love to just hear your big picture on all of this, and then maybe we can get into some more details and maybe even what are the available options for Jack Smith and the government and the judges in the lower courts?
Trevor Morrison: Sure. I’m glad to be back with you. Yeah, I think the sort of highest level of generality is the court hasn’t announced a categorical sweeping immunity that can’t possibly be overcome by any of the charges that Jack Smith is purporting to bring against Trump. It has announced a much broader conception of immunity than I think it should have. And maybe most tellingly, it has left immense amounts of work to be done by the lower courts on remand to the extent the court thought it important to provide any sort of clear definitive answers to questions that are pertinent to this case.
So I read the court to be saying that it’s really not going to be possible to pursue any charge against Trump that focuses on communications between Trump and the Department of Justice, for example, whether that is, you know, threatening to remove an acting attorney general or just, you know, interacting with anyone in the Justice Department. That’s just going to be all conceived of as part of an unreviewable exercise of official capacity authority of the president to oversee the Justice Department and to be ultimately responsible for taking care that the laws are faithfully executed.
So the big story there, I think, is that the court apparently felt it incumbent upon itself to take some of the things off the table altogether by saying, you know, there’s just no way that these elements of the case will be able to go forward.
Andrew Weissmann: Could I ask you about that? Because I think the theory there was that part of the Take Care Clause makes this something that sort of exclusively within the province of the presidency. And Trevor, I know when we had talked about this before the decision, you sort of had this idea that in that there would be some core —
Trevor Morrison: Yeah.
Andrew Weissmann: — presidential functions that could be absolutely immune. But if you put it in the Take Care Clause, just to be a nerd here for our audience, I mean, where are the limits on that? They didn’t really, to me, articulate why that is limited to the Department of Justice. And that’s scary enough to think that a president can use the Department of Justice in any way, shape or form, or at least those communications with the department in any shape or form for criminal purposes. And that’s absolutely immune. And then take care could include so much more than just conversations with the attorney general.
Trevor Morrison: I agree with all of that. So just to step back one-half step, right, you’re right that going into the oral argument in the case, I was among those who said that, you know, I think there is a very good argument. The president does enjoy a modest scope of what I would call absolute immunity.
And I don’t think actually anyone on the court explicitly disagreed with that proposition. Some thought it was relevant to the case as currently postured, others thought not. But I would never have thought that the take care authority fell within that bucket. We’re talking about these things like the veto power, the pardon power, the recognition power, those elements of presidential power that belong to the president and belong to him so exclusively that they are not subject to regulation whatsoever.
And that’s the first category that Roberts began with. But as Justice Sotomayor points out in her dissent, that category essentially becomes irrelevant because it gets swamped by the second category, which is just a very broad conception of immunity for anything the president does in his official capacity, subject only to the overcoming the presumption that you described, Mary, if the government can show that even though the president acted in his official capacity here, pursuing these charges would not pose any danger of intrusion on the authority and functions of the executive branch.
We don’t know what it looks like to apply that standard. That’s some language drawn from the Nixon versus Fitzgerald case, but we really don’t have any really textured sense of what application of that standard will look like. So there’s that. Then, Andrew, what you’re asking about is what are we to make of references by the court to the Take Care power? I don’t know that the majority has to be read as broadly as Justice Sotomayor worries about in dissent.
She may be right that the court seems to be suggesting that any element of the Take Care power is beyond regulation by Congress. That just doesn’t make any sense to me insofar as what it means to take care that the laws are faithfully executed is you have to attend to the laws that are enacted by Congress. So I think what the majority opinion says about the president’s relationship to the Justice Department, at least on a first pass, I’m not justifying this.
It seems like the court is just picking out that relationship between the president and the Justice Department as running especially to the core of presidential authority and just doubting that it will ever be possible to interpose a special counsel between the president and the Justice Department to pursue charges there. But the Take Care Clause doesn’t justify that move by itself. Or if it did, it would justify a whole lot more that I think goes beyond what even the court would be prepared to say.
Andrew Weissmann: So let’s just take a hypothetical. Let’s assume that there is a tape recording and video tape like the Brad Raffensperger call where the president says, I’m replacing the attorney general because I want to have a new attorney general who is going to institute a fraudulent case, and the person says that on tape. Now, the hypothetical is there’s no question. That’s what the conversation is.
Mary McCord: Let’s get more specific. I want my Justice Department to investigate all of my political enemies, including those who prosecuted me and I don’t care if there’s any validity or not.
Andrew Weissmann: Yes, exactly.
Mary McCord: That’s what I want him to do. Let’s say that’s explicit.
Andrew Weissmann: And let’s assume that it’s actually worse than that. It’s like, I know that there’s no evidence, but I want to have them prosecuted.
Trevor Morrison: Right. So I think this hypothetical is bringing us to some of the most shocking elements of today’s opinion. And they’re on two levels for me. One is what the court’s opinion says about presidential contacts with Justice Department leadership in general. I read the court to be saying that is always and in every case conduct in the president’s official capacity.
We might agree with that because it’s going to be hard to imagine the president acting in a purely personal capacity when the attorney general takes his call and he’s only taking the call because it’s the president.
But then I think the court is also saying that it’s not prepared to accept that there would be any circumstance where a prosecutor could overcome the presumption of immunity in that case, that any charge would necessarily pose a danger of intrusion into the authority and function of the executive branch. And that’s shocking, but it’s more than that, right? The court also says in trying to figure out the boundaries of official conduct or not motive or purpose on the part of the president never matters.
And so all of the cases, Andrew, when you and I have talked about this in the past —
Andrew Weissmann: Yes.
Trevor Morrison: — as a prosecutor, you rightly bring up that mens rea is often the whole thing that tells you about whether you’ve got a permissible purpose or a corrupt one. The court’s taking that off the table entirely for purposes of deciding whether the president has acted in his official capacity. And then it’s even worse because of somehow you could figure out that there was some aspect of what the president had done that was correctly understood to be him acting in his private capacity.
The court has taken off the table the ability to rely on any official capacity acts to sort of inform our understanding there. I thought Justice Barrett had it exactly right in her concurrence when she says, well, then how could we ever under pursue, say, a bribery, you know, prosecution? You have to be able to talk about the quid and the quo. And all that the chief justice has to say in response to that as well, you can rely on public information, but suppose it’s a phone call between the president and the attorney general along the lines of what you’ve hypothesized.
Mary McCord: Andrew and I were talking about this at the break, and this is one of the more surprising parts of the opinion, because the chief during oral arguments seemed to be exactly where Justice Barrett is. And so this seemed like a complete flip. And his footnote does seem to be a little bit in opposition to the broad brush of you can’t put on, you know, any evidence of official acts.
And if the only difference, is you can only put on public record, not the only difference because it’s a big difference, but you can put on, you know, public record information, but not the reasons for it, I don’t see how you’re any less hamstrung than you would be if you couldn’t put on, you know, any of it.
Trevor Morrison: Yeah. I mean, I think there are multiple ways to think about that footnote, too. And I’ve been puzzling over it.
Mary McCord: I’ve read it five times trying to say, is this actually pulling back on what’s in the text? Is there still an opening here? How do you apply this?
Trevor Morrison: I mean, one question is, once Justice Barrett wrote what she wrote, why didn’t the chief just go along with it? I assume he was going to lose Alito and Thomas over this. And so, and might there have been a possibility of a different five at that point —
Mary McCord: So what? Lose them.
Trevor Morrison: Well, then you lose your court.
Andrew Weissmann: I have a question. What is that in the context of this decision? What would that mean to lose them? In other words —
Mary McCord: Right.
Andrew Weissmann: — like they were going to sign on to this. Maybe they wanted to be further.
Mary McCord: They could dissent from that part, right?
Andrew Weissmann: I don’t understand why it wasn’t 5-4 the other way, because it ended up being 5-4 on this issue. I don’t —
Trevor Morrison: Right.
Mary McCord: I just couldn’t understand why he didn’t go along with Barrett.
Trevor Morrison: I think it’s a great question. I’ve wondered, I mean, from the oral argument, I thought, okay, this is awfully a consequential case. Presumably the chief justice will want to write. But if, you know, remember the Halcyon days when we thought maybe the court would want to decide this case quickly, you know, the quickest path to that would have been to give it to Barrett based on her questions during oral arguments.
Mary McCord: Yes.
Trevor Morrison: And her short concurrence is super smart. As you know, although I’ve thought it was fine to call it immunity in the space of exclusive responsibility, she said, I wouldn’t call it immunity, but I would let the president raise it on the front end, which is really the only thing that mattered to me. And then she kind of folds in the clear statement rule of sorts by deciding you have to figure out whether the statute applies. She wouldn’t quite use the clear statement rule.
Mary McCord: Yeah, she wouldn’t say you have to. It has to clearly say it applies to the president. But yeah.
Trevor Morrison: Right. But she said that the layers of protection here are first, does the statute even govern the president? And second, does it implicate? And so —
Mary McCord: The Constitution, yeah.
Trevor Morrison: I wondered almost, was there the possibility of, say, the three dissenters joining Barrett? And then does it come down to this evidentiary thing as the reason the chief wouldn’t have gone along with that position? Because as troubling as the majority opinion is on a number of these points, the greatest trouble is just going to be in the difficulty and time it will take to sort out these questions.
And if you thought that the questions that the lower court had to face were as described in Justice Barrett’s concurring opinion, the path going forward would look clearer. And Barrett, at least, says for most of them, except this evidentiary one, that’s what she thinks the court is saying.
Mary McCord: Yeah.
Trevor Morrison: And so there was a more minimalist thing here.
Mary McCord: That’s a perfect segue.
Andrew Weissmann: Yeah. Let’s take a quick break. And when we come back, Trevor, maybe talk to us a little bit more for people who haven’t read or are in the weeds on Barrett’s decision. Maybe we can go over just a broad brush what it says. But then let’s talk about sort of for this particular case, even though this case is so huge for America writ large, let’s try and talk about what we think is going to happen now with this decision. But let’s take a quick break.
Trevor Morrison: Sure.
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Andrew Weissmann: Welcome back. Trevor, for those of us who have not read Chapter and Verse on Justice Barrett, who I have to say this term has really sort of been really interesting to watch, and is definitely an active mind. And not that everyone’s going to agree with her on everything, but has proved to be an independent thinker. Also, by the way, just a note, beautiful writer. But can you walk us through sort of what you think is sort of the key parts of her? Like, how does she come out? What’s her reasoning?
Trevor Morrison: Sure. Let me just agree with what you said in general about her. I’ll go further with no real offense intended to the other two Trump nominees. I think in the course of this term, Justice Barrett has showed herself to be by far the most nuanced and careful and insightful thinker of the Trump nominees, not even close.
Mary McCord: Agree.
Trevor Morrison: So in this case, she first of all sort of resists the idea that we would be talking about this as immunity at all, but she thinks there are constitutionally and statutorily based limits on the prosecutability of a president. And she would think about it in two steps. And she thinks that both of these steps need to be addressed pre-trial, not simply as defenses in trial. And she thinks that both of them should be able to be pursued on appeal pre-trial. So that’s functionally operating kind of like an immunity doctrine, though she wouldn’t call it that.
The first she says is, look, you can imagine things that presidents might do that are deeply objectionable to people, but that doesn’t mean always that it violates the law. And so she gives examples, an interesting one from the Obama administration that was raised by the Trump people, was Obama’s ordering of a targeted drone attack on a United States citizen. And there is a federal statute that prohibits murder when done by U.S. personnel.
There’s also an office of legal counsel opinion that’s been made public in the years since then that took up this very question, but didn’t decide it in terms of constitutional doctrine of presidential immunity or anything like that. It said there is a background principle of statutory interpretation that says the general homicide statutes don’t apply to public authorities like law enforcement or the military when they’re operating within the scope of their authority.
And so the public authority exception, she says, look, I’m not saying this has anything to do with this case, but that’s an example of how just figuring out whether the statute even applies to presidential action that we would otherwise think is unlawful in other circumstances not involving the president, that’s a real limit on the extent to which the president is prosecutable. And then she would say, okay, if the statute by its terms does govern the president, and she’s not using a clear statement rule here, to be clear. She’s not saying the statute would have to call out the president by office in order for it to apply.
If it as ordinarily interpreted, including using rules like the public authority exception, should be understood to apply the president’s actions, would application of it in this case implicate some core constitutional concern? And I would call it immunity, but she would say the constitutional defense, if you want, that she would recognize for the president are where the president is exercising powers that he has been given by the Constitution exclusively and closely adjacent actions.
She doesn’t define what that is, but she’s imagining things that maybe it’s not literally within the president’s exclusive power, but it’s very close to something that is exclusively the president’s. And she would give him a kind of buffer. I’ve been wondering if the way to think about that is something like a qualified immunity buffer around exclusive presidential authority.
Andrew Weissmann: To take a term that I don’t think people use anymore, a penumbra.
Mary McCord: Yeah.
Trevor Morrison: An emanation on a penumbra? Yeah, possibly. And she says, if we think about it that way, there will be lots of times when even though the conduct in question is official, it’s official conduct, there’s no reason to think that there’s any constitutional problem with pursuing the prosecution because it doesn’t implicate any core presidential power or any closely adjacent activity.
Now, she says this in the course of concurring in the majority opinion, not concurring in the judgment, but concurring in it. So, one way to read this is that her more straightforward, I think, simpler, more concise, easier to understand standard, she thinks is compatible with what the majority has said. I think there’s going to be a lot of play in the joints. I mean, one possibility on remand is that the law will end up looking, if we ever apply any of this, will end up looking like what Justice Barrett has said. But I think there are also opportunities to read the immunity much more broadly, given language that Roberts used in different parts of his opinion.
Mary McCord: For example, she goes further than the majority. You know, what the majority does is says some things, the communications with the Department of Justice that are absolutely immune, doesn’t carve out anything that is definitely only unofficial conduct. But she would, in a footnote, she makes clear. She says, take the president’s alleged attempt to organize alternate slates of electors. In my view, that conduct is private and therefore not entitled to protection.
And so, even though she said sometimes it might be hard to sort official conduct from unofficial conduct, she says, it’s not always going to be difficult. And this is a place where it’s not difficult. The majority didn’t go that far. They basically said, we’re going to send this back to Judge Chutkan to figure out in the first instance after briefing and factual development, but even suggested with respect to that scheme that, you know, there’s parts of the president’s communications with state legislators and others that might be official.
Trevor Morrison: Yeah, I agree with you. I think so in principle and maybe in practice, it will be possible, I think, for the lower court to come out on the fake elector scheme where Justice Barrett would come out. But just as a matter of, you know, exercising the judicial power in an institutionally minded way, I think it’s quite unsettling that the Chief Justice saw no need to provide even one illustration of something that would fall —
Mary McCord: Yes.
Trevor Morrison: — on the not immune side of the ledger.
Andrew Weissmann: Right.
Trevor Morrison: He took some things categorically off the table, like interaction with the Justice Department.
Mary McCord: That’s right.
Trevor Morrison: Why not say that on the allegations in the complaint, of course, they have to be proved, but on the allegations in the complaint, the interaction with the fake slates of electors is obviously not official conduct. Or for that matter, why not tell us how the SEAL Team 6 hypothetical comes out?
Mary McCord: Right.
Trevor Morrison: Now, I understand that’s just a hypothetical, but Justice Sotomayor is left to say in dissent that it looks like the majority opinion would treat that as immune.
Mary McCord: That’s right.
Trevor Morrison: Now, I don’t know if that has to be the way to read the majority opinion. I think it’s clearly official capacity conduct. So it’s just the question of whether the prosecution could overcome the presumption there. But the fact that the majority didn’t even feel the need to speak to that issue.
Mary McCord: That’s right.
Trevor Morrison: There’s this one sidedness to the issues that did resolve that Justice Sotomayor points out, and I think in a very convincing way.
Andrew Weissmann: Well, to me, I think that’s a really key part of this, which is to the extent that you saw this sort of policy debate as to what are you more worried about? Are you worried about prosecutors run amok? Are you worried about presidents run amok? And you saw that at the oral argument. The idea that you’re going to come out on the, we’re worried about prosecutors run amok, but we’re not going to do even a brushback pitch to say in the oral argument, don’t start thinking about this because that’s a problem.
Mary McCord: Right.
Trevor Morrison: Right.
Andrew Weissmann: There wasn’t any attempt to give those kinds of categories, even the claim about what would be personal conduct. They say perhaps not even saying it’s sure, but perhaps when you’re acting as a candidate, that would be personal. And I was like, what do you mean, perhaps? It’s like —
Trevor Morrison: They walk back Trump’s lawyer’s own concession on that point.
Andrew Weissmann: Yes, exactly.
Trevor Morrison: Yeah.
Mary McCord: That’s what I was just going to say. They didn’t even accept the concessions. They sort of said, ah, that’s what one lawyer says, you know, at argument, but you still have to look at it independently. So that did feel very one-sided.
Trevor Morrison: Yeah. I mean, I recall Justice Gorsuch’s comment during oral argument, which was pilloried a bit by some commentators afterwards that, look, when we decide this case, he’s admonishing, I think, Michael Dreeben at that point, we’re writing for the ages. Well, then to decide to write for the ages, and I don’t know, it’s like writing only for the odd number of years in the ages —
Mary McCord: Right.
Trevor Morrison: — or something like that. I mean, it’s a very one-sided approach to the kinds of issues that needed to be resolved and then that were going to be left unresolved.
Mary McCord: So what do you do? What do you do if you’re Jack Smith and if you’re Judge Chutkan?
Andrew Weissmann: I mean, I take it you think that there can be and there will be a hearing before Judge Chutkan. Obviously, there isn’t going to be a trial because all of her conclusions can be appealed.
Trevor Morrison: Right.
Andrew Weissmann: But I take it there can be, upon briefing, which the Supreme Court pointedly said she should have, meaning it can’t be immediate, there’ll be briefing.
Trevor Morrison: Right.
Andrew Weissmann: But it sounds like there will be a hearing. And so, you know, the small picture is I think there will be an opportunity for Jack Smith to call witnesses and witnesses that have not necessarily been heard from before the January 6th hearing to wit the former vice president of the United States, various lawyers for the White House who testified in part but not fully before the January 6th committee. Those may be part of what’s allowed, but they will run up with a lot of objections as to what they can say.
Trevor Morrison: Yeah. I think it’s into that set of weeds that Jack Smith must now venture. I agree with you that, you know, unless the prosecution is going to be abandoned, and I assume it won’t be in the near term, the next thing is briefing and a hearing to try and go allegation by allegation. But whether the vice president could be called, who within the White House could be called without running afoul of this evidentiary limitation, which is the other big disagreement between, as we were discussing, between the chief justice and Justice Barrett.
Justice Barrett is with Justice Sotomayor and the other dissenters on the unwisdom of having an evidentiary bar there. So I think evidentiary hearings on communications with the fake slates of electors and with state level officials is easier to imagine happening over any objection, whereas I think just the act of objecting to trying to put on the former vice president or high-ranking White House officials itself may need to go up on appeal before the hearing even happens. I don’t know. But it seems to be a dimension of the immunity, according to the chief justice.
Mary McCord: I think there’ll be that argument. But I didn’t read the majority to be saying for purposes of pretrial motions where you’re trying to decide what’s official and unofficial, because how would you even know what’s official and can’t come in as evidence when you’re still trying to figure out what’s official and what’s unofficial? I read it to be once those decisions are made, the things that fall on the official side of the lever can’t be introduced as evidence at trial. But all of that said, that doesn’t mean Trump’s attorneys won’t make the very argument you just teed up.
Trevor Morrison: I think it would make sense for the rule to be as you’ve described, but dinner is on me, Mary —
Mary McCord: Yeah. Right
Trevor Morrison: — if Trump’s lawyers don’t raise the argument.
Andrew Weissmann: Trevor, do you have any last thoughts on sort of either small picture or just big picture in terms of what you think this means? I mean, I sort of went off the deep end before you came on about big picture because I thought this decision was so much worse than I anticipated. I had read what you had written about this and I’d listened to you speak about it. And so I was all in on the Trevor Morrison approach.
But I think this is about as close to applying the civil standard with some aspects that are even worse though, as we talked about in terms of the evidentiary components. And I just wondered what you thought sort of big picture, how people should be thinking about this in terms of the presidency in our democracy.
Trevor Morrison: Yeah, it’s a shocking decision to me. As you said, I’m among those who have said that just under some standard separation of powers principles, there is a core of presidential conduct that I would say is properly recognized as immune from prosecution or that the Constitution bars prosecution of. And that’s like the first subsection of the chief justice’s opinion. But Justice Sotomayor is right that readers can just ignore that section because it is swamped by the rest of what the chief justice says.
And the rest of what he says is an incredibly broad articulation of the theory of the immunity. I think an even more surprisingly broad semi-application of that theory in the context where he would apply it and an extension of the idea on this evidentiary privilege piece. And so, you know, the court kind of bats away objections from the dissent and from punditry and others that this would place the president above the law.
I think it’s Justice Thomas and his concurrence. He says, no, no, no, presidential immunity is part of our law. So the president isn’t above the law. But frankly, those are just word games. If the answer to the president’s not supposed to be above the law is that, well, the doctrine of absolute presidential immunity is part of our law, so he’s not above it. Well, that would just be like saying that the monarch’s immunity is not placing the monarch above the law as long as the law recognizes it.
The long-term implications here are to suggest that the circumstances in which the president can be held to account in the courts for even blatant illegality are far fewer than I think any of us supposed. And the court today said that in the name of, it said, protecting the presidency without, to my mind, nearly enough attention to what it takes to protect the rule of law and our constitutional democracy. The country is much worse today than it was yesterday.
Andrew Weissmann: And if you think of our history, the examples of presidential abuse are much more legion and worrisome than the examples of prosecutorial abuse when it comes to the president, where, you know, the only thing you could really point to is either Nixon, which everyone agrees happened, or this, where we just had a conviction on the first of the charges. And there’s no reason to think that this didn’t happen. Certainly, the Mar-a-Lago case is totally open and shut.
So that the concern for abuse is one I was really surprised about how this read in terms of we’re so concerned about the tit-for-tat, which was the Donald Trump argument when we have no history of that. Whereas you have had concerns about the misuse of the powers of the presidency, not just with Donald Trump.
Trevor Morrison: Indeed. And the court, I think, is going to make it harder for the legal system to hold that kind of abuse to account in the future.
Mary McCord: Well, Trevor, I, for one, I’m going to try to take what the majority said about this ruling is not as broad as the defense argued it is and see that as the opening here to salvage something. We are so grateful to you for joining us. Andrew and I will be back tomorrow on Tuesday, our normal recording time. We’ll, you know, give listeners any further thoughts we’ve had overnight after we sleep on this, assuming we sleep.
But we will also discuss tomorrow something that we haven’t had a chance to talk about yet, which is the Supreme Court’s decision on the obstruction of an official proceeding. And I’d like to say that has no impact on the Trump case. And I think it doesn’t, except this immunity decision has far more impact on the Trump January 6 case than that decision would.
At any rate, we will be joined with Ryan Goodman, New York University law professor and our co-author in a piece we wrote, Andrew and I and Ryan for “Just Security,” that really establishes with the statistics and the numbers that the effect of that ruling is going to be extremely minimal, even as to the rioters who were charged with this. So please tune in tomorrow for more on that. And thanks again, Trevor.
Andrew Weissmann: Thanks, Trevor.
Trevor Morrison: Thanks for having me.
Mary McCord: Thanks so much for listening. We want to continue to answer your questions as they come up. To send us a question, you can leave us a voicemail at 917-342-2934. Or you can e-mail us at prosecutingtrumpquestions@nbcuni.com. That is nbcuni.com. This podcast is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Our audio engineers are Catherine Anderson and Bob Mallory. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Kutler is the senior vice president for content strategy at MSNBC. Search for “Prosecuting Donald Trump” wherever you get your podcasts and follow the series.