WEBVTT - Trump Does Not Have Presidential Immunity 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:10.080 --> 0:00:13.720 For the purpose of this criminal case, former President Trump 0:00:13.760 --> 0:00:17.720 has become citizen Trump. That's what the DC's Circuit Court 0:00:17.760 --> 0:00:21.439 of Appeals wrote as it moved Donald Trump one step 0:00:21.520 --> 0:00:24.880 closer to standing trial for trying to overturn the twenty 0:00:24.960 --> 0:00:29.720 twenty election. In a decisive, unanimous ruling, the three judge 0:00:29.760 --> 0:00:33.040 panel found that Trump can't claim that the office of 0:00:33.080 --> 0:00:38.159 the presidency protects him from criminal prosecution. The judges wrote, 0:00:38.360 --> 0:00:42.040 we cannot accept that the Office of the Presidency places 0:00:42.080 --> 0:00:46.200 its former occupants above the law for all time. Thereafter, 0:00:46.640 --> 0:00:50.479 the judges had made their skepticism of Trump's immunity claims 0:00:50.640 --> 0:00:54.280 clear during the oral arguments last month. Here's Judge Karen 0:00:54.360 --> 0:00:55.480 Lacraft Henderson. 0:00:56.200 --> 0:01:02.080 I think it's paradoxical to say that his constitutional duty 0:01:02.520 --> 0:01:07.040 to take care that the laws be faithfully executed allows 0:01:07.120 --> 0:01:11.880 him to violate criminal laws. 0:01:12.160 --> 0:01:15.720 And in the opinion, the judges repeatedly used Trump's words 0:01:15.720 --> 0:01:19.440 and positions against him, for example, pointing to Trump's position 0:01:19.600 --> 0:01:23.360 during his impeachment that he could still be criminally charged, 0:01:23.880 --> 0:01:27.200 something Judge Florence panpointed out during the arguments. 0:01:27.680 --> 0:01:31.160 You took the position or your client did during the 0:01:31.160 --> 0:01:35.600 impeachment proceedings that there would be an option for criminal 0:01:35.640 --> 0:01:38.920 prosecution later, and it's in the congressional record, and I 0:01:38.920 --> 0:01:41.600 guess the question is what has changed or why have 0:01:41.600 --> 0:01:42.520 you changed your position. 0:01:42.640 --> 0:01:45.039 The court put the ruling on hold for Trump to 0:01:45.080 --> 0:01:49.480 appeal to the Supreme Court, but only until Monday. Joining 0:01:49.480 --> 0:01:53.280 me is former federal prosecutor Jessica Roth, a professor at 0:01:53.280 --> 0:01:57.080 Cardozo Law School. The court said, our analysis is guided 0:01:57.120 --> 0:02:00.880 by the Constitution, federal statutes, and his as well as 0:02:00.960 --> 0:02:06.280 concerns of public policy. What's your impression broadly of the opinion? 0:02:07.280 --> 0:02:10.799 My opinion broadly is that it is a resounding rejection 0:02:10.960 --> 0:02:14.480 of Trump's claim of immunity from criminal prosecution, and that 0:02:14.560 --> 0:02:18.120 it's an extremely thorough well written and well reasoned opinion 0:02:18.560 --> 0:02:21.520 that is unanimous issued on behalf of a panel that 0:02:21.560 --> 0:02:25.720 included one judge appointed by a Republican president, all speaking 0:02:25.760 --> 0:02:28.960 in one calm but clear voice, holding that a former 0:02:29.000 --> 0:02:30.640 president is not above the law. 0:02:31.320 --> 0:02:35.959 They address all of Trump's arguments for immunity and shoot 0:02:35.960 --> 0:02:39.600 them down one by one, starting with his argument that 0:02:39.840 --> 0:02:42.919 separation of power's doctrine immunizes him. 0:02:43.600 --> 0:02:47.359 The Court took that argument seriously and addressed it thoroughly, 0:02:47.720 --> 0:02:51.840 but found that there was no problem in separation of 0:02:51.880 --> 0:02:57.359 powers concerns with a former president being held criminally responsible 0:02:57.639 --> 0:03:00.600 for actions taken while in office that were in violation 0:03:00.919 --> 0:03:05.399 of federal criminal laws passed by the United States Congress. 0:03:05.720 --> 0:03:09.120 And it cited precedents in which presidential actions had been 0:03:09.160 --> 0:03:13.840 subject to judicial review, including former President truman seizure of 0:03:13.880 --> 0:03:16.120 the steel mills, and the Court said it did not 0:03:16.400 --> 0:03:20.760 find that separation of powers concerns prevented the Court from 0:03:20.760 --> 0:03:24.760 exercising oversight through the adjudication of the criminal laws over 0:03:24.919 --> 0:03:28.160 acts committed by a former president while in office that 0:03:28.280 --> 0:03:30.160 in fact were violations of criminal law. 0:03:30.720 --> 0:03:33.600 As you mentioned, there was a measured tone, but I 0:03:33.639 --> 0:03:36.880 thought that the tone was a little less measured when 0:03:36.880 --> 0:03:41.160 they had concerns about quote at bottom, former President Trump's 0:03:41.200 --> 0:03:45.200 stance would collapse our system of separated powers by placing 0:03:45.200 --> 0:03:49.080 the president beyond the reach of all three branches. At 0:03:49.080 --> 0:03:53.320 different points, I just thought that they raised some heightened concerns. 0:03:53.920 --> 0:03:57.000 They certainly raised concerns, and there were a number of 0:03:57.120 --> 0:04:01.040 really striking portions of the opinion that in a sense 0:04:01.280 --> 0:04:04.480 in a very measured way, I thought, expressed a sense 0:04:04.560 --> 0:04:08.400 of outrage over the implications of the former president's arguments. 0:04:08.520 --> 0:04:10.760 So you just read one portion of it. There's another 0:04:10.800 --> 0:04:13.360 portion where the court said, it would be a striking 0:04:13.440 --> 0:04:16.240 paradox if the president, who alone is vested with the 0:04:16.279 --> 0:04:20.720 constitutional duty to take care that the laws be faithfully executed, 0:04:21.040 --> 0:04:24.880 were the sole officer capable of defying those laws with impunity. 0:04:25.240 --> 0:04:27.159 So there are a number of statements like that that 0:04:27.200 --> 0:04:32.000 are just really strong rejections of the notion that a 0:04:32.080 --> 0:04:36.839 former president would be immune from prosecution and from his 0:04:36.920 --> 0:04:38.520 actions being reviewed by the court. 0:04:39.720 --> 0:04:44.480 They also took on policy considerations that he'd raised. Trump's 0:04:44.520 --> 0:04:47.400 lawyer had said, and Trump himself has said this on 0:04:47.440 --> 0:04:51.560 the road, that if presidents didn't have immunity, it would 0:04:51.640 --> 0:04:56.200 risk chilling their actions, and that presidence would be routinely 0:04:56.240 --> 0:04:58.160 indicted after they left office. 0:04:58.600 --> 0:05:03.440 Yes, the court did into account those policy considerations and 0:05:03.600 --> 0:05:08.279 said that not only was there no historical precedent for 0:05:09.040 --> 0:05:13.239 immunity from criminal prosecution of the kind that former President 0:05:13.240 --> 0:05:18.640 Trump thought, but that these policy considerations did not weigh 0:05:18.680 --> 0:05:22.600 in favor of recognizing such immunity. For the first time. 0:05:22.720 --> 0:05:26.039 In this case, they said that it has always been 0:05:26.240 --> 0:05:30.560 understood that former presidents could be subject to criminal prosecution 0:05:30.640 --> 0:05:34.120 when they left office. For example, that's why former President 0:05:34.200 --> 0:05:38.359 Ford pardoned former President Nixon. They cited the example of 0:05:38.520 --> 0:05:41.039 former President Bill Clinton, who entered into an agreement with 0:05:41.080 --> 0:05:44.640 the special counsel who had been investigating him with various sanctions, 0:05:44.640 --> 0:05:48.960 including forfeiting his law license, in part to settle the 0:05:49.000 --> 0:05:52.520 prospect of a future criminal prosecution. And then, most importantly, 0:05:52.560 --> 0:05:57.200 they cited statements by attorneys for former President Trump during 0:05:57.279 --> 0:06:01.159 his impeachment trial his second impeachment trial, they argued that 0:06:01.279 --> 0:06:05.560 impeachment was not the proper remedy, but rather the possibility 0:06:05.560 --> 0:06:08.840 of a criminal prosecution would be the proper remedy. And 0:06:08.880 --> 0:06:12.640 so they said these examples that point toward an understanding 0:06:12.720 --> 0:06:16.920 that former presidents could be subject to criminal prosecution when 0:06:16.960 --> 0:06:20.840 they left office for acts taken while president, and that 0:06:20.880 --> 0:06:24.480 there was no suggestion in the historical record that that 0:06:24.920 --> 0:06:29.000 prospect had chilled presidents while they were in office from 0:06:29.200 --> 0:06:33.559 exercising their duties without too much concern. And in fact, 0:06:33.680 --> 0:06:35.800 there was a quote from the district court opinion that 0:06:35.839 --> 0:06:38.440 they reiterated in the appellate opinion that I just thought 0:06:38.480 --> 0:06:41.880 was very telling. The District Court had said, every president 0:06:41.920 --> 0:06:45.560 will face difficult decisions, whether to intentionally commit a federal 0:06:45.600 --> 0:06:48.560 crime should not be one of them. And the DC 0:06:48.720 --> 0:06:52.200 Circuit quoted that language, saying, basically, they don't think that 0:06:52.240 --> 0:06:55.560 they're holding that there is no immunity from criminal prosecution 0:06:56.080 --> 0:06:59.479 is going to actually chill presidents in the exercise. 0:06:59.040 --> 0:07:02.000 Of their duties. They sort of turned the argument around 0:07:02.160 --> 0:07:07.800 against Trump. During the oral arguments, Trump's lawyer spent seemed 0:07:07.839 --> 0:07:11.320 like most of the time on the impeachment clause and 0:07:11.400 --> 0:07:15.240 this argument that Donald Trump would first have to have 0:07:15.320 --> 0:07:20.680 been convicted by the Senate in order to then be 0:07:21.520 --> 0:07:23.920 tried criminally after he left office. 0:07:24.400 --> 0:07:28.440 So, as the Lascimenta points out very clearly, then the founders, 0:07:28.440 --> 0:07:32.280 the framers actually in the Constitution Convention clearly contemplated that 0:07:32.280 --> 0:07:35.080 that sequence that I've described would be mandatory. He would 0:07:35.080 --> 0:07:36.880 have to be impeached and convicted first of them. 0:07:37.360 --> 0:07:40.400 And they took that on and they said, the strongest 0:07:40.440 --> 0:07:43.800 evidence against Trump's claim of immunity is found in the 0:07:43.800 --> 0:07:46.320 words of the Constitution's impeachment clause. 0:07:47.400 --> 0:07:50.880 They did treat thoroughly this argument that he could not 0:07:51.080 --> 0:07:54.920 be prosecuted criminally because he had not been convicted in 0:07:54.960 --> 0:07:58.240 the Senate relying on the impeachment clause. They addressed it 0:07:58.360 --> 0:08:01.840 thoroughly and said that they rejected it, that they thought 0:08:01.880 --> 0:08:05.160 it was a strained reading of the clause that he offered, 0:08:05.560 --> 0:08:09.600 and that although the clause makes clear that a president 0:08:09.760 --> 0:08:14.800 can be criminally prosecuted after being impeached and convicted, that 0:08:15.000 --> 0:08:18.080 the negative implication that Trump was arguing from that clause 0:08:18.080 --> 0:08:20.840 that he could only be criminally prosecuted if he had 0:08:20.880 --> 0:08:25.120 been convicted in the Senate following impeachment simply did not follow. 0:08:25.760 --> 0:08:30.120 So in the opinion, you had the legal arguments based 0:08:30.160 --> 0:08:34.880 on precedent and history and the Constitution, and then there 0:08:34.880 --> 0:08:39.320 were the sort of logical, sensible arguments, and one here 0:08:39.480 --> 0:08:42.280 was that, you know, the founders knew how to grant 0:08:42.320 --> 0:08:46.160 immunity if they wanted to, and they didn't want to hear. 0:08:46.640 --> 0:08:47.439 Yes, absolutely. 0:08:47.480 --> 0:08:49.960 They cited to other portions of the Constitution that were 0:08:50.000 --> 0:08:53.120 explicit about granted immunity, for example, with respect to the 0:08:53.160 --> 0:08:55.800 speaking debate clause and making clear that there would be 0:08:55.840 --> 0:08:59.240 immunity there for actions in the course of speech and debate. 0:08:59.280 --> 0:09:03.200 By members of Congress, And so if the framers knew 0:09:03.200 --> 0:09:05.880 how to be explicit about grants of immunity, it follows 0:09:05.880 --> 0:09:08.640 that if they didn't explicitly grant it to presidents in 0:09:08.679 --> 0:09:10.400 this context, that it doesn't exist. 0:09:10.720 --> 0:09:13.720 Is there any part of this opinion that you think 0:09:14.000 --> 0:09:18.199 is weak or subject to attack on appeal? 0:09:19.600 --> 0:09:24.160 It is a really sorrow opinion, and I think that 0:09:25.480 --> 0:09:28.160 the fact that the Court took its time to write 0:09:28.160 --> 0:09:31.959 this and to speak in one voice clearly was time 0:09:32.000 --> 0:09:35.679 well used to write such a sorrow opinion. I do 0:09:35.760 --> 0:09:39.000 not see any weak points in this opinion. I thought 0:09:39.040 --> 0:09:42.000 it was interesting that the court wrote in a footnote 0:09:42.160 --> 0:09:45.760 that it was not addressing the situation of a criminal 0:09:45.760 --> 0:09:50.720 prosecution by a state prosecutor for ax undertaken in office, 0:09:50.720 --> 0:09:54.320 and nor was it addressing the prospect of immunity of 0:09:54.360 --> 0:09:58.720 a sitting president from criminal prosecution. So in a sense, 0:09:58.720 --> 0:10:03.200 it's very much narrowly tailored to the situation before the court. 0:10:03.360 --> 0:10:06.480 And where did Trump's arguments about official acts go? 0:10:07.160 --> 0:10:10.120 I thought it was really interesting that the DC Circuit 0:10:10.200 --> 0:10:15.880 held categorically that there was no immunity from criminal prosecution 0:10:16.400 --> 0:10:20.840 for a former president, even for official acts at the 0:10:20.960 --> 0:10:23.880 oral argument, and given the briefing, much of which was 0:10:23.920 --> 0:10:27.240 dedicated to whether these were official acts of the president, 0:10:27.800 --> 0:10:31.080 I thought it was possible that the court would say, 0:10:31.520 --> 0:10:34.760 we're not going to deal with the categorical question because 0:10:34.760 --> 0:10:37.840 we're going to find that there is no immunity here 0:10:38.400 --> 0:10:40.680 because these were not official acts. In other words, they 0:10:40.760 --> 0:10:43.760 might have said, arguendos, we're going to apply the framework 0:10:44.240 --> 0:10:49.120 for immunity from the civil context to the criminal context, 0:10:49.120 --> 0:10:51.960 which is what Trump invited them to do, that we 0:10:52.000 --> 0:10:55.600 would find that even within that framework, these actions by 0:10:56.080 --> 0:11:00.600 Trump fall outside of his official acts. Have written an 0:11:00.640 --> 0:11:04.280 opinion along those lines, but they didn't, and I think 0:11:04.320 --> 0:11:07.280 that that is significant. It's a really sort of resounding 0:11:07.400 --> 0:11:11.800 rejection of the idea that there could be immunity from 0:11:11.840 --> 0:11:16.720 criminal prosecution even for official acts. The Court didn't really 0:11:16.760 --> 0:11:19.360 discuss whether or not these were official acts in the 0:11:19.360 --> 0:11:22.959 body of its opinion. They dropped a footnote where they said, 0:11:23.520 --> 0:11:27.160 even if we were to apply that framework, which asks 0:11:27.200 --> 0:11:31.320 whether the actions were within the outer perimeter of the 0:11:31.360 --> 0:11:36.440 presence responsibilities, which is the civil suit immunity framework, they said, 0:11:36.480 --> 0:11:39.880 we are doubtful that these most of these acts is 0:11:39.880 --> 0:11:43.200 alleged to the indictment would constitute official acts, and they 0:11:43.240 --> 0:11:46.120 cited to their recent's opinion in the Blastingham case, which 0:11:46.160 --> 0:11:49.680 was the civil suit against Trump and others involved in 0:11:49.679 --> 0:11:52.920 the January sixth riot, where the court did apply the 0:11:52.960 --> 0:11:56.760 civil immunity framework and found that most of the actions 0:11:56.760 --> 0:12:02.000 as alleged in those civil complaints outside the outer perimeter 0:12:02.160 --> 0:12:05.480 of official actions. And so although the court didn't squarely 0:12:05.480 --> 0:12:08.600 address that question in this opinion, because it didn't need to, 0:12:09.040 --> 0:12:12.800 given that it said categorically there is no immunity from 0:12:12.880 --> 0:12:16.160 criminal prosecution, I thought it was interesting that it did 0:12:16.240 --> 0:12:20.400 drop that footnote essentially expressing doubt that these would be 0:12:20.440 --> 0:12:21.800 deemed to be official acts. 0:12:22.120 --> 0:12:25.959 Didn't the judges also throw cold water on any claims 0:12:26.040 --> 0:12:28.880 that the counting of the ballots, that part of the 0:12:28.880 --> 0:12:32.280 electoral process has anything to do with the president. 0:12:32.679 --> 0:12:33.040 They did. 0:12:33.080 --> 0:12:37.200 They talked about how these were not actually acts that 0:12:37.280 --> 0:12:41.960 were within the president's duty, that these were not matters 0:12:42.080 --> 0:12:46.120 entrusted to him, and to the extented he claims that 0:12:46.240 --> 0:12:49.439 his actions were an effort to see that the laws 0:12:49.480 --> 0:12:53.880 were faithfully executed, that that essentially was a disingenuous argument 0:12:53.960 --> 0:12:57.640 here because he had no role to play with respect 0:12:57.679 --> 0:13:02.640 to the administration of the state elections and the county 0:13:02.679 --> 0:13:05.160 of the electoral votes, and that, in fact, what he 0:13:05.200 --> 0:13:09.000 did was an effort, as alleged, it's an effort to 0:13:09.600 --> 0:13:13.360 actually undermine the working of the laws that do govern 0:13:14.000 --> 0:13:18.319 the election of the president. It's a one other sort 0:13:18.360 --> 0:13:21.560 of notable quote from the opinion in that regard is 0:13:21.640 --> 0:13:25.000 the court said former President Trump's alleged efforts to remain 0:13:25.080 --> 0:13:29.360 in power despite losing the twenty twenty election were, if proven, 0:13:29.720 --> 0:13:33.400 an unprecedented assault on the structure of our government. He 0:13:33.440 --> 0:13:37.160 allegedly injected himself into a process in which the president 0:13:37.240 --> 0:13:40.400 has no role the counting and certifying of the Electoral 0:13:40.400 --> 0:13:45.760 College votes, thereby undermining constitutionally established procedures and the will. 0:13:45.559 --> 0:13:46.280 Of the Congress. 0:13:46.440 --> 0:13:48.679 Jessica, you're going to stay with me. Coming up, we're 0:13:48.720 --> 0:13:51.880 going to discuss whether the Supreme Court will take this 0:13:52.040 --> 0:13:55.400 case on appeal. I'm June Grosso and you're listening to Bloomberg. 0:13:56.360 --> 0:13:59.200 In a unanimous ruling, the DC Court of Appeals has 0:13:59.280 --> 0:14:02.680 found that Donald Trump cannot claim that the office of 0:14:02.720 --> 0:14:07.920 the presidency protects him from prosecution. Quote. Former President Trump 0:14:07.960 --> 0:14:11.480 has become citizen Trump with all the defenses of any 0:14:11.520 --> 0:14:15.720 other criminal defendant, but any executive immunity that may have 0:14:15.840 --> 0:14:19.640 protected him while he served as president no longer protects 0:14:19.720 --> 0:14:24.560 him against this prosecution. This decision moves Trump closer to 0:14:24.640 --> 0:14:28.360 standing trial for trying to overturn the twenty twenty election, 0:14:28.880 --> 0:14:31.720 but it may not be the last word. The court 0:14:31.720 --> 0:14:35.440 put the ruling against Trump on hold until February twelfth 0:14:35.640 --> 0:14:38.200 for him to appeal to the U. S. Supreme Court. 0:14:38.640 --> 0:14:41.200 He might also ask the full d C. Circuit to 0:14:41.280 --> 0:14:44.720 rehear the case. Neither court is required to take up 0:14:44.760 --> 0:14:48.720 his appeal. I've been talking to former federal prosecutor Jessica Roth, 0:14:49.120 --> 0:14:53.560 a professor at Cardozo Law School. The court gave Trump 0:14:53.720 --> 0:14:58.320 until Monday only to appeal to the Supreme Court to 0:14:58.360 --> 0:15:00.800 have this case on hold. Do you think they were 0:15:00.960 --> 0:15:04.120 looking at his strategy of delayed delay delay. 0:15:04.880 --> 0:15:07.960 I can't speak to what was in the judge's vines 0:15:08.800 --> 0:15:11.960 in their decision about the timing here. It is notable 0:15:12.000 --> 0:15:14.600 that they gave him a short time frame in which 0:15:14.640 --> 0:15:18.040 to appeal to the US Supreme Court before they would 0:15:18.080 --> 0:15:21.320 issue the mandate. I think it speaks to the urgency 0:15:21.480 --> 0:15:24.760 of the matters involved in this case, and you see 0:15:24.800 --> 0:15:28.920 that sense of the significance of this case throughout the 0:15:28.960 --> 0:15:33.560 Court's opinion when it talks about how the alleged conduct 0:15:33.760 --> 0:15:37.760 was an effort to overturn the results of a democratic 0:15:38.120 --> 0:15:42.720 election and the public's interest in the enforcement of criminal laws. 0:15:42.920 --> 0:15:46.800 So I think that those substantive aspects of the case 0:15:47.440 --> 0:15:49.520 may carry over to the court sense of what is 0:15:49.520 --> 0:15:53.760 an appropriate time frame in which to allow resort to 0:15:53.800 --> 0:15:57.320 further appellate review before the case goes forward in the 0:15:57.360 --> 0:15:58.280 district Court. 0:15:58.440 --> 0:16:01.200 Does that order the way it's it's raised mean that 0:16:01.560 --> 0:16:05.800 if Trump decides to appeal on Bank to the DC 0:16:06.080 --> 0:16:09.440 Circuit that the order won't be stayed. 0:16:10.560 --> 0:16:10.880 Yes. 0:16:11.200 --> 0:16:15.680 So the order makes clear that although Trump could file 0:16:15.720 --> 0:16:19.080 a petition for rehearing in Bank from the full DC Circuit, 0:16:19.760 --> 0:16:24.200 that motion would not stay the mandate. The only thing 0:16:24.240 --> 0:16:27.560 that will stay the mandate beyond Monday would be Trump 0:16:27.640 --> 0:16:31.840 filing an application for a stay from the United States 0:16:31.920 --> 0:16:35.360 Supreme Court. And as I read the DC Circuit order, 0:16:35.800 --> 0:16:39.000 its mandate will be stayed tending the US Supreme Court's 0:16:39.080 --> 0:16:43.120 resolution of a motion by Trump for a stay. So, 0:16:43.280 --> 0:16:47.240 if the Supreme Court considers an application by Trump for 0:16:47.320 --> 0:16:50.840 a stay and rejects it. Then the case goes back 0:16:50.880 --> 0:16:54.880 to the trial court, even if the US Supreme Court 0:16:54.920 --> 0:16:56.880 subsequently grants circiora. 0:16:57.800 --> 0:16:59.800 No one knows whether the Supreme Court will take the 0:16:59.840 --> 0:17:03.000 case or not, but they already have a couple of 0:17:03.280 --> 0:17:07.720 Trump cases on the docket, including this Thursday, the case 0:17:07.760 --> 0:17:11.159 over Colorado barring him from the ballot. What would be 0:17:11.200 --> 0:17:13.679 your guess as to whether they'll take the case or not. 0:17:14.400 --> 0:17:18.800 This is such a well reasoned and thoughtful opinion that 0:17:18.920 --> 0:17:22.280 I think they are very compelling reasons why the Court 0:17:22.359 --> 0:17:26.320 wouldn't take this case. There's no circuit split on this issue, 0:17:26.840 --> 0:17:31.200 and they certainly have their plateful with other really important 0:17:31.400 --> 0:17:35.159 cases that they need to decide, including the ballot access question. 0:17:35.640 --> 0:17:40.000 On the other hand, this is an enormously significant issue 0:17:40.200 --> 0:17:43.800 whether a former president is entitled to immunity from criminal prosecution. 0:17:44.160 --> 0:17:46.439 One could imagine the Justice is saying this is an 0:17:46.440 --> 0:17:49.359 issue on which we should open. But on the other hand, 0:17:49.520 --> 0:17:52.800 unless there are enough justices who think that the DC's 0:17:52.800 --> 0:17:55.760 circuit opinion is wrong, then I could also see them 0:17:55.960 --> 0:17:58.920 letting the DC opinion be the final word on this subject. 0:17:59.440 --> 0:18:04.600 So is everything here because the federal election case was 0:18:04.920 --> 0:18:07.520 on for March fourth, but then the judge had to 0:18:07.600 --> 0:18:11.520 take it off the calendar. If the Supreme Court decides 0:18:11.560 --> 0:18:14.040 not to take the case, how fast could the trial 0:18:14.119 --> 0:18:17.600 be put back on the calendar and move forward. 0:18:18.359 --> 0:18:21.680 Well, the Trial court has indicated that she will give 0:18:21.840 --> 0:18:26.240 the former president additional time to respond to motions that 0:18:26.280 --> 0:18:29.560 were filed by the special counsel to file any additional 0:18:29.600 --> 0:18:33.919 motions on his own behalf time that but for the 0:18:34.000 --> 0:18:37.800 stay of the trial court proceedings, he would have had 0:18:37.840 --> 0:18:40.840 to work on these motions in this last month or so. 0:18:40.840 --> 0:18:43.760 So she's going to give him that time. That means 0:18:43.800 --> 0:18:47.399 we're probably looking at some time at the earliest in 0:18:47.560 --> 0:18:51.880 late summer, perhaps late July, early August, for a trial date. 0:18:52.320 --> 0:18:55.119 But we really don't know what's going to happen. I mean, 0:18:55.160 --> 0:18:57.320 if the US Supreme Court were to take the case 0:18:57.400 --> 0:19:00.280 in grant to stay, that would mean that things would 0:19:00.280 --> 0:19:03.920 remain frozen. We really don't know, But we do see 0:19:03.960 --> 0:19:07.080 coming from the Trial Court in DC, Judge Chutkin every 0:19:07.080 --> 0:19:10.240 effort to move the case along as expeditiously as possible. 0:19:10.560 --> 0:19:12.320 So I think we may have a better sense by 0:19:12.359 --> 0:19:15.919 next week, by Monday, when and if Trump files an 0:19:15.920 --> 0:19:18.639 application in the US Supreme Court for a stay. Whether 0:19:18.680 --> 0:19:20.960 that's going to happen, I expect it will, and then 0:19:21.000 --> 0:19:23.400 I would imagine within a week or so after that, 0:19:23.560 --> 0:19:25.919 perhaps we would have some indication from the US Supreme 0:19:25.920 --> 0:19:28.200 Court about how quickly they're going to move, and if 0:19:28.200 --> 0:19:30.040 they're not going to take the case at all, then 0:19:30.480 --> 0:19:32.919 these things may start proceeding even more quickly in the 0:19:32.920 --> 0:19:33.400 trial court. 0:19:34.400 --> 0:19:36.920 So I know that what they say here, or as 0:19:36.960 --> 0:19:41.120 they said it has no application to what's happening in Georgia. 0:19:41.720 --> 0:19:46.000 But Trump did make a similar argument in Georgia, and 0:19:46.080 --> 0:19:49.480 I'm wondering if the courts there might look to what 0:19:49.520 --> 0:19:50.520 this court has said. 0:19:50.920 --> 0:19:53.080 I think the courts there will look to what this 0:19:53.160 --> 0:19:58.080 court has said as persuasive authority. Certainly, the analysis about 0:19:58.200 --> 0:20:03.280 the functional considerations about what impact would a holding that 0:20:03.320 --> 0:20:05.679 a case, a criminal case could go forward have on 0:20:06.520 --> 0:20:10.480 a president's ability to conduct their official duties without too 0:20:10.560 --> 0:20:13.840 much concern. I think that would be persuasive to state 0:20:13.840 --> 0:20:18.240 courts considering whether immunity should apply from a state prosecution. 0:20:18.960 --> 0:20:22.080 But I do think that some of the language might 0:20:22.119 --> 0:20:25.000 cut the other way, in the sense that one of 0:20:25.040 --> 0:20:28.720 the things that the Court says about why federal criminal 0:20:28.800 --> 0:20:32.359 prosecutions don't pose as great a concern as the prospect 0:20:32.400 --> 0:20:35.919 of civil lawsuits is. They said, well, essentially, there are 0:20:35.960 --> 0:20:39.359 so many private parties who might file civil lawsuits against 0:20:39.359 --> 0:20:43.520 a former president, and that prospect is significant enough for 0:20:43.640 --> 0:20:46.959 us to be concerned about not granting immunity. Those are 0:20:46.960 --> 0:20:50.000 statements that the US Supreme Court had made in the 0:20:50.000 --> 0:20:54.840 Fitzgerald's case, where it did recognize immunity from civil lawsuits 0:20:54.920 --> 0:20:57.760 for presidents for actions taken in the course of their 0:20:58.160 --> 0:21:01.960 official duties. DC Circuit said, well, we don't think those 0:21:01.960 --> 0:21:06.240 considerations apply with the same force with respect to federal 0:21:06.280 --> 0:21:11.280 criminal prosecutions, because prosecutors are subject to a number of 0:21:11.320 --> 0:21:15.000 constraints before they can bring criminal charges, including a code 0:21:15.040 --> 0:21:18.520 of ethics and also having to present their cases to 0:21:18.800 --> 0:21:21.680 a grand jury composed of ordinary citizens before the case 0:21:21.720 --> 0:21:25.520 can proceed. So much of that language I think works 0:21:25.880 --> 0:21:30.040 in the same way with respect to date criminal prosecutions. 0:21:30.080 --> 0:21:33.040 Prosecutors in the States also are subject to codes of 0:21:33.040 --> 0:21:36.320 ethics before they can bring charges. They also generally have 0:21:36.400 --> 0:21:39.080 to present them before a grand jury. But on the 0:21:39.080 --> 0:21:42.320 other hand, there are many more state prosecutors in a 0:21:42.400 --> 0:21:45.560 sense than there are federal prosecutors who are all encompassed 0:21:45.560 --> 0:21:47.879 within the Department of Justice. So I could see that 0:21:48.080 --> 0:21:52.199 discussion parts of it being used to help establish immunity 0:21:52.280 --> 0:21:55.119 from state prosecution, and parts of it being used to 0:21:55.160 --> 0:21:58.959 establish it there is no immunity from state prosecutions. And 0:21:59.000 --> 0:22:01.280 then of course there's a whole issue of the supremacy 0:22:01.280 --> 0:22:03.639 clause on how that would work in the context of 0:22:03.720 --> 0:22:07.159 state prosecutions of a former president. That wasn't a consideration 0:22:07.240 --> 0:22:10.119 in this case because it is a federal prosecution of 0:22:10.119 --> 0:22:10.919 a former president. 0:22:11.520 --> 0:22:13.400 So now we'll be keeping our eye on the calendar 0:22:13.480 --> 0:22:17.320 until Monday to see what happens with the appeal. Thanks 0:22:17.400 --> 0:22:22.399 so much, Jessica. That's Professor Jessica Roth of Cardozo Law School, 0:22:22.960 --> 0:22:26.280 coming up next on the Bloomberg Lawn Show. The Pennsylvania 0:22:26.359 --> 0:22:28.960 Supreme Court has made a ruling in a case over 0:22:29.000 --> 0:22:32.760 the use of Medicaid dollars to cover the cost of abortions, 0:22:33.280 --> 0:22:36.680 and the reasoning in that ruling signals a possible new 0:22:36.760 --> 0:22:40.760 path for reasserting abortion rights. I'm June Gross when you're 0:22:40.800 --> 0:22:44.879 listening to Bloomberg. The Pennsylvania Supreme Court has ordered a 0:22:44.920 --> 0:22:48.720 lower court to reconsider a challenge to the states decades 0:22:48.760 --> 0:22:52.600 old ban on using medicaid funds for abortions except in 0:22:52.680 --> 0:22:56.280 cases of rape or incest. But the State Supreme Court's 0:22:56.359 --> 0:23:01.600 reasoning has far wider implications. A law school professor Jessica 0:23:01.680 --> 0:23:05.840 Levinson has written in a column for MSNBC, the majority 0:23:05.880 --> 0:23:10.320 opinion signals a possible new path for reasserting abortion rights, 0:23:10.560 --> 0:23:14.360 as well as thoroughly rebutting the Supreme Court's Dobb's decision, 0:23:14.400 --> 0:23:19.680 which overturned Roe v. Wade, and Professor Levinson joins me, Now, Jessica, 0:23:19.720 --> 0:23:22.320 in order to put this in context, where you have 0:23:22.400 --> 0:23:24.719 to go back to the Roe v. Wade decision in 0:23:24.800 --> 0:23:30.359 nineteen seventy three, explain how the court used the Fourteenth Amendment. There. Rov. 0:23:30.560 --> 0:23:34.879 Wade is the Supreme Court deciding what is included in 0:23:34.920 --> 0:23:39.480 the word liberty in the Fourteenth Amendment, what is constitutionally protected, 0:23:39.960 --> 0:23:42.880 And leading up to Roe v. Wade, what the Supreme 0:23:42.880 --> 0:23:46.720 Court had concluded is that broadly, there is this right 0:23:46.800 --> 0:23:50.760 to privacy that's included in that word liberty. That broadly 0:23:50.880 --> 0:23:55.040 that includes, for instance, the right to obtain contraception. But 0:23:55.080 --> 0:23:58.320 the question in Roe v. Wade was does the word 0:23:58.440 --> 0:24:03.359 liberty include the right to obtain an abortion? And back 0:24:03.400 --> 0:24:06.840 in that case, the court answered in the affirmative, they said, yes, 0:24:06.960 --> 0:24:11.240 it's not written anywhere in the Constitution, but we find 0:24:11.280 --> 0:24:16.520 these unwritten rights and we conclude that they are included 0:24:16.600 --> 0:24:19.360 in this word liberty. That the drafters of the fourteenth 0:24:19.359 --> 0:24:21.960 Amendment knew that we were going to have to fill 0:24:22.040 --> 0:24:24.720 in meaning to that word. And one of the things 0:24:24.720 --> 0:24:28.200 that must mean is the right not just to contraception, 0:24:28.480 --> 0:24:29.959 but also to an abortion. 0:24:30.720 --> 0:24:34.480 And you right that Ruth Bader Ginsburg, the attorney Ruth 0:24:34.520 --> 0:24:38.840 Bader Ginsburg, would have chosen a different legal theory. 0:24:39.520 --> 0:24:43.440