Trump’s Case for Total Immunity

from The New York Times this is the. daily I'm Natalie. [Music]. kitro Donald Trump has consistently. argued that as former president he's. immune from being charged with a crime. for what he did in. office today my colleague Adam lipac on. what happened when his lawyers made that. case in federal court whether the. extraordinary claim has any chance of.

being accepted and why Trump may win. something valuable either. [Music]. [Applause]. way it's Wednesday January. [Music]. 10th Adam hi welcome back to the show. hello so Trump and his lawyers appeared.

in a federal appeals court Tuesday to. make their case that as a former. president Trump is immune from Criminal. prosecution basically that the justice. department cannot charge him for a. criminal act which if Trump wins seems. like it would make a lot of his legal. troubles go away is that right yeah it's. an extraordinary ask he says he has. absolute immunity from Criminal. prosecution for anything resembling an. official Act while he was President even.

after he's no longer president Adam can. you take us back just explain how we got. here well the criminal case against. former president Trump I say the. criminal case the criminal case we care. about today because it's one of four is. a Federal indictment brought by special. counsel Jack Smith arising from Trump's. efforts to overturn the 2020 election so.

that charge is filed in federal district. court in Washington and among Trump's. responses is to file a motion saying you. can't prosecute me because I have. immunity from Criminal prosecution for. my official acts when I was president. and the trial judge considers that. motion and rules against Donald Trump. says we have presidents not Kings and. you're responsible for criminal conduct.

if the prosecution can prove it Trump. appeals it goes to a three judge panel. of the United States court of appeals. for the DC Circuit of federal appeals. court in Washington oh y oh y oh yeah. and they heard a very Lively argument. today all persons having business before. The Honorable the United States court of. appeals for the District of Columbia. circuit are Mish to draw near and give. their attentions so you said this was an.

extraordinary ask by the former. president to be granted absolute. immunity tell me about the Trump. argument here why would he be immune Mr. sour for the evalent Mr Pierce for the E. sour good morning well at 9:30 Tuesday. Morning his lawyer John SAU steps up to. the lecturn addresses the three judge. panel and makes an aggressive argument. if a president has to look over his. shoulder or her shoulder every time he. or she has to make a.

a a controversial decision and wor after. I leave office if I go into jail for. this when my political opponents take. power that inevitably dampens the. ability of the president he says a. president is the head of one of the. three branches of government and that. gives him special power and special. immunity from prosecution that we can't. have our. presidents distracted when they're. trying to make tough decisions to. authorize the prosecution of a president.

for his official act would open a. Pandora's box from which this nation may. never recover and he says allowing. criminal prosecutions would open up a. Pandora's box of criminal actions taken. against former presidents of all kinds. for all sorts of things could George W. bush be prosecuted for obstruction of an. official proceeding for allegedly giving. false information to Congress to induce. the nation to go to war in Iraq under. false pretex.

es could President Obama be potentially. charged with murder for allegedly. authorizing drone strikes targeting US. citizens located abroad so he's saying. that there could be this flood of. prosecutions and that presidents need to. be able to operate without fear of that. that it could be dangerous to the public. good it could interfere with the. president's ability to execute his. duties yes and there's a logic to that. Natalie we don't want our president's. distra raed we want them to be able to.

make smart decisions in real time about. very difficult questions without looking. over their shoulders without being. afraid of prosecution and the Supreme. Court has in a limited way endorsed this. idea in a case from 1982 called Nixon V. Fitzgerald when President Richard Nixon. was a former president he was being sued. by a whistleblower who said that Nixon.

had. unfairly dismissed him and the court. says we can't have constant lawsuits. against even former presidents because. that would make their day jobs really. difficult when they're thinking about am. I going to be sued for something and. therefore by a 5 to4 vote in the context. of civil litigation where people are. seeking money private parties seeking. money not criminal conduct the Supreme. Court says yes the president has.

absolute immunity from being sued for. money up to the Outer Perimeter of His. official conduct but that's one category. lawsuits for money are one category and. the Supreme Court has spoken to that it. hasn't directly spoken to criminal. prosecutions which are I would think a. much more deliberate sober measured. action taken by professional prosecutor. particularly from the Department of.

Justice and that effort to vindicate. criminal law is different in kind the. Supreme Court has suggested than. lawsuits for money yeah I mean part of. the difference is that obviously anyone. can bring a lawsuit but not everyone can. bring a criminal case against someone. exactly right okay but in the Nixon case. he's given immunity you just said in. part because he was acting in His. official Capac.

I mean my question is is what Trump is. accused of here reasonably considered. part of his official duties I mean he's. accused of seeking to overturn the. election is his team making the case. that seeking to overturn the election. was part of his job as president that's. what they say uh not in those terms they. wouldn't say that his job was to. overturn the election they would say his. job was to. investigate claims of.

election misconduct by other people you. know responding to widespread. allegations of fraud abuse and and and. Miss Fein in a presidential election. trying to find how to respond to that in. a manner that's in the National interest. and he did that they say maybe not very. convincingly in His official capacity. and not as a candidate seeking. reelection this is a point of real. vulnerability for Trump but the case as. it reaches the appeals court is about. whether he has absolute immunity for all.

official conduct and not details about. what is and is not official conduct and. one of the judges Judge Karen Henderson. makes the strong point that even. official conduct can be quite. problematic I think it's paradoxical to. say that his constitutional duty to take. care that the laws be Faithfully. executed allows. him to violate criminal laws so is.

Trump's lawyer essentially making the. argument that a president shouldn't be. prosecuted for anything he does in. office I mean at the end of the day a. crime is a crime right well the judges. certainly seemed to feel that way and. they tested that question that you're. asking natal with some wild. hypotheticals and so in your view could. a president. sell pardons or sell military.

Secrets those are official acts right. it's an official act to Grant a pardon. it's an official act to communicate with. the foreign government and such a. president would not be subject to. criminal prosecution so they asked well. what if the president was selling. pardons what if he was selling military. Secrets could a president ordered Seal. Team 6 to assassinate a political. rival that's an official act in order to. SEAL Team Six what if he sent Seal Team.

6 off to. assassinate a political rival he's the. Commander in Chief he's allowed to send. seal team6 off to do things but almost. everybody would agree that it's a crime. and Trump's lawyer didn't shy away from. those. hypotheticals and they did not get the. answer that perhaps you would expect he. he would have to be and would speedily. be you know uh uh impeached and. convicted before the criminal prosecu he.

said that the president is immune from. Criminal prosecution with one exception. could only be. prosecuted if he was first impeached by. the house and convicted by the senate. for that conduct and in that narrow. circumstance and only in that narrow. circumstance Trump's lawyer said would a. criminal prosecution be appropriate let. me get this straight he's saying the. only way for a president to be. prosecuted for ordering say the murder.

of a political rival is if he's first. impeached and convicted by the senate. for that crime that's I mean impeachment. is a political process decided by. partisan elected officials he's saying. they decide whether the Judiciary Branch. can prosecute. crimes that's what he says the. Constitution contemplates he says the. Constitution contemplates a very strong. president with with a lot of room to.

maneuver subject to oversight by the. House and Senate in the quite limited. impeachment proceeding process so I just. want to confirm your position is if. president Trump had been. convicted after his impeachment trial on. incitement of insurrection if he'd been. convicted then this prosecution would be. entirely proper and judge Florence pan. makes the point that even that construct.

is a little weird because Trump is. arguing he has absolute. immunity in every circumstance but he's. just found a circumstance in which he's. not absolutely immune if there is. impeachment by the house and conviction. by the Senate he can he concedes be. prosecuted uh which I would say that if. you were impeach and convicted for the. same and similar conduct then that would. authorize a subsequent prosecution. obious we have many other issues with. this PR is because I think you said in.

your brief that that. impeachment for incitement of. insurrection is based on the same or. related conduct as that which is in the. indictment yes yes yeah I agree with. that so the notion of absolute immunity. is not quite. right right it seems like this kind of. negates the whole thing about how the. president is immune from prosecution if. he's committing crimes in an official. capacity I mean Trump's lawyer is saying. that if a president is convicted by.

Congress he can be prosecuted and he. also seems to be saying if he's not. impeached and convicted by Congress he. cannot be prosecuted what should we make. of that so it's uh not the only obvious. reading of what lawyers call the. impeachment judgment Clause the. impeachment judgment Clause says that if. you're impeached and convicted the. punishment you get from Congress is no. more than removal from office and.

possibly being banned from holding. office again and then there's a second. part of the Clause that says. notwithstanding all that you're still. subject to prosecution so if convicted. you're still subject to prosecution. Trump reads that in a non-obvious way to. say if not convicted not subject to. prosecution and that you know if you. took logic in college you might think. that does not quite parse.

if the court has no further questions we. would ask the court to reverse and if. the court rules against us in any. respect we renew our request the court. stay its mandate to allow us to seek. further review thank you your. honor so it sounds like the judges are. pretty skeptical of the Trump argument. here yeah all three judges have serious. problems with major aspects of the. argument set out by Trump tr's lawyer.

and they seem to be eager to see what. the government has to. [Music]. say we'll be right. [Music]. back Adam you just said the judges were. eager to hear the Justice Department's. case so how did that go how did the. government lay out its case good morning. and may I please the court so James. Pierce justice department lawyer a.

member of special counsel Jack Smith's. team gets up and makes a general Point. never in our nation's history until this. case has a president claimed that. immunity from Criminal prosecution. extends Beyond his time office this is a. case where a sitting president has tried. to subvert an election at a minimum this. case case in which the defendant is.

alleged to have conspired to overturn. the results of a presidential election. is not the place to recognize some novel. form of criminal immunity he says that. this is not the case in which you need. to be making any kind of nuanced or. elaborate legal judgments and whatever. can be said about official acts and. Immunity in some setting or not but he. is not above the law this fits squarely. within the.

possibility of pursuing a criminal. prosecution okay so what does the. government's lawyer say specifically. about Trump's arguments how does he. respond well he rejects for instance the. idea that Trump's lawyers pressed that. allowing this prosecution would open the. floodgates to all kinds of prosecutions. of other presidents the careful. investigations in the in the Clinton era. uh didn't result in any charges the fact.

that this investigation did doesn't. reflect that we are going to see a sea. change of vindictive Tit for Tat uh. prosecutions in the future I think it. reflects the fundamentally unprecedented. nature of the criminal charges here. pointing out that we have lived in this. Republic for more than 200 years and not. come across anything remotely like this. and there's no reason to think we would. see it again and he says that criminal.

proceedings are serious matters. constrained in many ways and that is a. process which has the kinds of. safeguards that a couple of of members. of the Court here have already referred. to uh we're talking about prosecutors. who follow strict codes and not only by. prosecutors making hard calls about. which cases to bring but grand juries. doing the. inditing trial judges supervising the. trial juries hearing the case an.

elaborate appell it process that there. are all kinds of checks in the system to. make sure that any eventual conviction. is justly deserved I have to ask though. Adam I mean there is this widespread. belief that while the criminal justice. system is not supposed to be politicized. while it's supposed to operate with the. checks and balances that the. government's lawyer laid out that in. reality there are a lot of political.

motivations behind some of these. criminal cases and you know maybe these. safeguards aren't actually. working well former president Trump's. supporters certainly. believe that this prosecution and others. are politically. motivated they point out that although. there's a special counsel somewhat. insulated from the justice department. nonetheless the person at the head of. the current Executive Branch President. Biden. is former president Trump's main.

political rival so it's not easy to. convince people who are supportive of. President Trump and skeptical of this. prosecution that there's no element of. politics at play here and Trump's lawyer. raises the possibility that there could. be a criminal prosecution say of Joe. Biden for failing to control the Border. adequately I'm not sure that's a crime. but he raises the idea that one criminal.

prosecution of one former president will. beget another and open the floodgates in. that way okay and what about this. question of acting in an official. capacity and whether that confers. immunity what do the government's lawyer. say about. that the government's lawyer says that. these two things are not mutually. exclusive that you can be acting in an. official capacity and you can be. committing grave criminal wrongdoing. the lawyer Echoes the point from Judge.

Henderson I fully endorse or agree with. the idea of the Paradox of a president. uh on the one hand having the article. two take care responsibility and on the. other hand sort of seeing compliance. with the law as optional that there's an. element of paradox about this that your. job is to execute the laws faithfully. and yet you are violating a criminal law. and you could be immune from that I mean. what kind of world are we living in if. As I understood my friend on the other. side to say here a president orders his.

Seal Team to assassinate a political. rival and resigns for example before an. impeachment not a criminal act and then. he returns to the example of the. political assassination ordered up via. SEAL Team Six and says that cannot be. the case that you are immune from. prosecution for murdering your political. Rivals. unless Congress acts my impeachment and. conviction. I think that is.

extraordinarily frightening future and. that is the kind of we're talking about. a balancing and a weighing of the of the. interest I think that should weigh. extraordinarily heavily in the Court's. consideration and there's a brief. rebuttal from Trump's lawyer John sour. in which he makes the case that the. future is frightening but for a. different reason than the government. says if we are in a situation where uh. we have the prosecution of the chief. political opponent who's winning in. every pole uh and is being prosecuted by. the administration that he's seeking to.

replace that is the frightening future. that is tailor made to launch cycles of. recrimination that will shake our. Republic for the. [Music]. future it's interesting there's these. kind of two dueling visions of what the. frightening future that this case leads. to actually is on either. side it's the case of the dueling. dystopias. [Music].

So Adam what's going to happen here I. mean it seems like things didn't go that. well for Trump in the courtroom today. the judges don't seem to be leaning. towards siding with him how does this. end I think in very short order this. court is likely to rule against Donald. Trump he will then either take his. appeal to the full DC circuit not. because he's likely to win there but. because he has every incentive to delay.

and to burn up time and then to the US. Supreme Court which had earlier turned. this case away Jack Smith the special. Counsel had asked the court to LeapFrog. the appeals court and hear the case. right away they wouldn't do that but. they are more likely than not going to. weigh in uh for at least two reasons one. if a question of this constitutional. importance the scope of presidential. immunity from Criminal prosecution is.

going to be decided by a court it. probably ought to be the Supreme Court. and second because the court has already. agreed to hear questions about Trump's. eligibility in Colorado and really. around the nation the court might like. to have the option of issuing one. decision favoring Trump and one decision. not and because this immunity argument. is so ambitious such a long shot you. might think the Supreme Court would rule.

against Donald Trump in that case and. perhaps find a way to keep him eligible. on the ballot in the other case you're. saying the court might want to rule. against Trump here so that they can. preserve the sense of balance when they. rule in favor of him in the cases in. Colorado and other states where they're. trying to get him off the ballot they. would never admit to that they would. probably not even have a conscious.

feeling about doing that but history is. replete with days at the end of the term. in June when liberals score a big. victory and conservatives score a big. victory and it just happens to work out. that way now that's in an era where the. court was more closely divided uh so all. of this is speculation only but it would. not be shocking if the. court tried trying to maintain its. reputation as itself an apolitical.

institution were to go one way in one. case and one way in the other okay you. think this will end up at the Supreme. Court but my question is when and I'm. asking because of course the timing of. all of this is important obviously. there's an election the Iowa caucus is. next week I mean you said part of the. Trump strategy here is not just to gain. immunity but also to delay the trial the. trial continues to be scheduled for. March 4th with each passing day it makes.

it more likely it's going to. slip just getting a decision. out then getting a request to the full. appeals court to hear the case then. going to the Supreme Court then the. court either turning it away or hearing. arguments and deciding it all of that. even if done at a Brisk Pace by legal. standards will take weeks if not months. and that's been one of Donald Trump's.

main legal strategies in this case and. in other cases to Kick the Can down the. road to slow things. up and the more he can delay the more. options he. has he may well lose at the appeals. court at the Supreme Court and at the. same time win something very valuable. for him which is to get enough delay to.

lock in the nomination of one of the two. major political parties even as he is. accused of serious. crimes Adam thank you so much thank. [Music]. you we'll be right.

back here's what else you need to know. today on Tuesday Walter Reed Medical. Center revealed why secretary of defense. Lloyd Austin had been hospitalized more. than a week ago a hospitalization Austin. had concealed from the public and the. president in a breach of protocol that. frustrated some in the Biden. Administration Hospital officials said.

the secretary of defense was admitted on. New Year's Day with severe abdominal hip. and leg pain after undergoing a. procedure for prostate. cancer officials said his condition has. since improved and called his cancer. prognosis quote. excellent and in a court filing this. week a lawyer for one of the defendants. charged alongside former president Trump. in the Georgia election interference.

case said that the district attorney. overseeing that case fonnie Willis had. engaged in a quote clandestine. relationship with the special prosecutor. she hired for that. case the filing provided no proof of the. relationship but argued that it should. disqualify the district attorney and the. special prosecutor from Prosecuting the. case. today's episode was produced by Alex.

Stern Eric krupy and Jessica Chung it. was edited by Paige cowt and Lisa Chow. contains original music by Marian Lozano. Dan Pow and Alicia ba and was engineered. by Chris Wood our theme music is by Jim. brunberg and Ben lansberg of. wonderly.

that's it for the daily I'm Natalie. kroof see you. [Music]. tomorrow.