Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: When listing the winners from this term at the Supreme Court,
Speaker 1: former President Donald Trump stands at the top of the list.
Speaker 1: In a historic six to three ruling, the Court's conservative
Speaker 1: majority rule for the first time that former presidents have
Speaker 1: brought immunity from prosecution. While the Court didn't grant Trump
Speaker 1: the complete and total immunity from prosecution, he sought it
Speaker 1: conferred enough of a shield to all but ensure that
Speaker 1: Trump won't be tried for election interference before November. Joining
Speaker 1: me is Victoria Norris, a professor at Georgetown Law and
Speaker 1: an expert on separation of powers. In dissent, Justice Sonya
Speaker 1: Sotomayor wrote that the president is now a king above
Speaker 1: the law. Do you think that's what this decision really
Speaker 1: leads to.
Speaker 2: Well, I think they're a tremendous risk posed by that
Speaker 2: opinion because basically, the majority opinion allows the president doesn't
Speaker 2: answer the sealten sixth questions. That was Judge pan who said,
Speaker 2: what if the president ordered sealtaine six to kill his
Speaker 2: political opponent? The majority does not shut down the fact
Speaker 2: that that would be an official act and could not
Speaker 2: be prosecuted, and that is why he's saying that, can.
Speaker 3: You explain broadly what the opinion does.
Speaker 2: The opinion complicates the trial by injecting this question of
Speaker 2: official act community. So most lawyers thought that the two
Speaker 2: main presidents here were the Nixon case and the Clinton case.
Speaker 2: All right to presidents. One was sued civilly, one was
Speaker 2: in the criminal thing. And in both those cases they
Speaker 2: start out and say very emphatically, the president is not
Speaker 2: above the law. Okay, he can be subpoenaed and to
Speaker 2: be in a criminal trial, and he has to suffer,
Speaker 2: you know, civil justice for what he did. But the
Speaker 2: court went off on a different case called Harlow, which
Speaker 2: is a civil case and involving President Nixon, and that
Speaker 2: says that you can't sue a president civilly for his
Speaker 2: official for damages for you know, an executive order. And
Speaker 2: everyone thinks that's right. So this is an executive order
Speaker 2: and it somehow hurts someone or changes their job in
Speaker 2: the military, you can't sue him for that because that
Speaker 2: would just tie up government. You know, everyone agrees us
Speaker 2: the law. But what they did is they took that
Speaker 2: Harlow thing and said that applies to a criminal case,
Speaker 2: and now Judge Chuckkin will have to hold a hearing
Speaker 2: about what of the acts and the indictment are official
Speaker 2: and what aren't. And some of the statements in the
Speaker 2: majority opinions seem to say that conversations with other officials
Speaker 2: like the Attorney General are absolutely immuned. But then what
Speaker 2: happens if you're having a conversation with Seal Team six
Speaker 2: or the seat of the Defense Department? Is that official?
Speaker 2: And you can never indict someone if they've done something terrible.
Speaker 2: So it looks like it doesn't answer that hy pathetical.
Speaker 2: And it's particularly dangerous if you have a president like
Speaker 2: Trump who is always pushing the envelope. So if he
Speaker 2: orders the Defense Department to shoot protesters, right, he could
Speaker 2: say that's official. That's what people are very worried about.
Speaker 3: These six are supposedly originalists. Is there anything in the
Speaker 3: Constitution or history that supports this decision.
Speaker 2: There's certainly nothing in the text. The text says that Congress.
Speaker 2: You know, the founders wanted Congress to be the important
Speaker 2: body here. That's why it's in Article one. The Supreme
Speaker 2: Court was in the basement of the Senate for most
Speaker 2: nineteenth centuries, and it's in article three, not article one.
Speaker 2: So the text tells you what's the most important. And
Speaker 2: they have immunity for things they say, because the King
Speaker 2: in Britain used to, you know, throw the members of
Speaker 2: Parliament and members of Commons in jail. So no one
Speaker 2: wanted that to happen, but there is no text on immunity.
Speaker 2: Now the historical case which they decided, you know, there's
Speaker 2: another case called Vance that was deciding the last few years,
Speaker 2: which is about whether Trump could be subpoena in this
Speaker 2: Mazaar's accounting firm case. And they said yes because they
Speaker 2: relied on the Burg case and they'd held that in
Speaker 2: the Nixon case too, and so everyone thought, well, if
Speaker 2: you can subpoena him, and if he can be an
Speaker 2: unindicted co conspirator as in Nixon, then of course if
Speaker 2: he's a former president, he can be subject to criminals sanction.
Speaker 2: Is there anything in history to know this has never
Speaker 2: happened before?
Speaker 3: So how did they come up with this?
Speaker 2: Where did they get from their own president? So basically
Speaker 2: they took this case called Harlow, which was a guy
Speaker 2: who sued Nixon because of what Nixon did to him
Speaker 2: Nixon had some you know, sort of aggressive policing of
Speaker 2: the executive branch and individual and he treated this person
Speaker 2: terribly and so the person sued and the court said, well, yes,
Speaker 2: he treated you poorly. But if anyone could sue the
Speaker 2: president for damages, then it would stop government, right, And
Speaker 2: that's true throughout the government today. You can't like sue
Speaker 2: the Justice Aparment because you don't like them or what
Speaker 2: their policy. That's just a general There are many different
Speaker 2: doctrines of government a stop all immunity that apply throughout
Speaker 2: the government, Like you can't easily see the government and
Speaker 2: particularly for policies you don't like. So that's about money damages.
Speaker 2: But this is about a crime. So there's a big
Speaker 2: move there. And so basically Roberts made this all up
Speaker 2: talk about making up legislating. I find it very odd
Speaker 2: because it also is not very clear about how you're
Speaker 2: actually going to do this. Now. The truth is that
Speaker 2: if people are worried about this, they shouldn't be too worried.
Speaker 2: You know, they shouldn't be worried about the rule law
Speaker 2: because they decide forty cases a year that no one
Speaker 2: cares about an energies, whether it's original or not. You know,
Speaker 2: it's within the realm of reason in my view. This term. However,
Speaker 2: they decided about six cases that are going to scare
Speaker 2: the American public, and they show no interest in actually
Speaker 2: being statesmen or calming the waters, which is disturbing to
Speaker 2: me as someone who studies the whole Constitution. But they
Speaker 2: relied on precedent. I told you that civil case, and
Speaker 2: then they applied it to a criminal case. But all
Speaker 2: their application of the doctrine, so they've got this official
Speaker 2: immunity once they adopted from the Harlow case and they
Speaker 2: apply that to criminal cases, which is a leap there.
Speaker 2: Number one. But then the majority opinion is this long
Speaker 2: discussion about the difference between allegations in the indictment of
Speaker 2: what was official and what was not. So they say
Speaker 2: it was official if you talk to your attorney general. Well,
Speaker 2: what if you talk to your attorney general to bribe someone?
Speaker 2: And that was all the discussions in these or a
Speaker 2: largument and why so themuor push back. So there are
Speaker 2: three buckets that they developed and there's nothing in the
Speaker 2: text of the Constitution that says any of this. So
Speaker 2: one is the absolute immunity. So some conversation referred to
Speaker 2: with Bill Barr about then the question is about Mike Pennce,
Speaker 2: and that's in this middle ground that they've given presumptive
Speaker 2: immunity to but it can be rebutted. And then there's
Speaker 2: the stuff that you know, probably private. And this is
Speaker 2: where Justice Barrett to the country a great service by noting,
Speaker 2: as the GC Circuit had held that the Sake Elector
Speaker 2: scam was all private. Even the speech, in my view
Speaker 2: was private because it was funded by the campaign, because
Speaker 2: if they spent several dollars on that, that would be
Speaker 2: a felony. You can't spend federal money on campaign speech.
Speaker 2: So there are three buckets. We're going to have a
Speaker 2: big hearing about it. Everyone's gonna scratch their heads about this,
Speaker 2: and the court is going to look terrible. You know,
Speaker 2: I've spent my whole life defending the role of law,
Speaker 2: and I'm really sad, and I'm kind of angry at
Speaker 2: Roberts for doing this, because I just think it showed
Speaker 2: so little sense of where the country is. They decided
Speaker 2: a case they didn't need to decide, which is imprudent.
Speaker 2: They could have written it very simply. It's really complicated,
Speaker 2: so you know, usually like Brown versus Board, it's a
Speaker 2: very short deelphic thing with nine people on it. Right,
Speaker 2: it's hubris. It's just hubris and lack of statesmanship and understanding.
Speaker 2: They're a part of the Constitution. They're not above it.
Speaker 2: They are not They're part of it. And so that
Speaker 2: hubris is a real problem. And I think the American
Speaker 2: people their only option now is to make the Court
Speaker 2: a political issue so their things Congress can do. They
Speaker 2: can reverse local Bride, they can reverse a lot of
Speaker 2: these things. So people are going to have to elect
Speaker 2: people who will actually do that kind of stuff if
Speaker 2: they wanted to change, because there's no way those court
Speaker 2: will be packed. Fdrhad sixty seven vote.
Speaker 1: When Trump lost the twenty twenty election, the Supreme Court
Speaker 1: basically turned away his different challenges. What do you think
Speaker 1: happened at the Court to lead to this opinion which
Speaker 1: paves a way for him to run in November without
Speaker 1: facing a trial for criminal interference in the twenty twenty election.
Speaker 2: It's their blindness to their role within the constitution. And
Speaker 2: you know, Scalda liked this theory called the unitary executive
Speaker 2: that's behind this decision. They all believe they wear bracelets.
Speaker 2: It's not what would Jesus do, it's what would Antonique
Speaker 2: Glea do? Look at a bracelet. And Scalia's most famous
Speaker 2: opinion was a dissent in Morrison versus Olsen against the
Speaker 2: Special Council. You saw that in Thomas's opinion he thinks
Speaker 2: Jack Smith is unconstitutional and that's being argued down in
Speaker 2: Aileen Canon's case. So that gives the president a lot
Speaker 2: of power. That's part of the tenant of originalism. There's
Speaker 2: no textual source of this. They view something called the
Speaker 2: vesting Clause, which was added at the end of the
Speaker 2: Constitution Convention. It's sort of like a header, but anyway,
Speaker 2: it says, shall vess the executive power in a president.
Speaker 2: They view that as, to quote a professor's book, Imperial
Speaker 2: from the beginning. And they've been saying this for years
Speaker 2: out loud. Now I've written extensively about why they're adding
Speaker 2: text to the Constitution effectively because for some time Justice
Speaker 2: Scalia wrote in that opinion that the president has all
Speaker 2: executive power and the word all is not in there.
Speaker 2: And the fact that they're arguing that, I mean, the
Speaker 2: greatest generation will be rolling over in their grave. Robert Jackson,
Speaker 2: who wrote in an opinion called Steel Seizure that when
Speaker 2: the government argued that, you know, the Nixon thing, if
Speaker 2: I do it, it's legal, that it was the kind
Speaker 2: of language for a totalitarian And this is what I
Speaker 2: have taught for years. I pushed back on the unitary executive.
Speaker 2: And so this is a theory that they even moderate,
Speaker 2: some moderates in the Republican Party adopt, like the bushy
Speaker 2: George W. Bush persons. Now, note there is something important
Speaker 2: to note. There were a lot of fancy conservative laders
Speaker 2: telling them not to do this, and yet they did,
Speaker 2: like Charles Cooper, Peter Kisler, that very clause, you're citing
Speaker 2: that text. So they focus on the executive's vesting clause.
Speaker 2: But right after the executive promising clause is the president
Speaker 2: faithfully execute the law. And so these conservatives argued, well,
Speaker 2: the president can't violate the law. We have to faithfully
Speaker 2: execute the law. And there's nothing in the vesting clause.
Speaker 2: It's just as sort of a header or a description
Speaker 2: that undermines the president's beauty. And they did not accept
Speaker 2: that argument. So my head has been exploding since I
Speaker 2: heard the oral argument, because I know that behind this
Speaker 2: is the assumption that the unitary executive is a wise thing.
Speaker 2: So what they've done is they've aggrandized the president and
Speaker 2: they've aggrandized themselves. And what can I say except for
Speaker 2: historically we've had other legal revolutions. So this isn't just
Speaker 2: constitutional because the low for Bride and all this batchtory stuff.
Speaker 2: I study textualism. You know, it's a theory for easy cases,
Speaker 2: not hard cases. You know, for the president being thirty five.
Speaker 2: But it's not about you know, the limits of executive power.
Speaker 2: And so I think that they've begun in the seeds
Speaker 2: of destruction of originalism because there's nothing historically that really
Speaker 2: supports what they've done. There's nothing in the text that
Speaker 2: supports what they've done. And so we now see that
Speaker 2: this originalism seventeen eighty seven stuff is a veneer. So yeah, women, okay,
Speaker 2: you go back to the witch hunter in thirteenth century.
Speaker 2: But meanwhile, the president can do anything he want. It's
Speaker 2: not well thought out. It's more political in the sense
Speaker 2: of I don't like that word. There's a philosopher calls
Speaker 2: it the cunning of unreason in this politics, and this
Speaker 2: was a unitary executive opinion because they think they're looking
Speaker 2: down at there. What would Justice Scalia do? Bracelet And
Speaker 2: they're really really not thinking of that, particularly in the
Speaker 2: era of Trump. So this is extremely dangerous for what
Speaker 2: will come if Trump wins the election.
Speaker 3: So they're all for this unitary executive, a strong president,
Speaker 3: yet they're against the administrative state, and they took away
Speaker 3: power from federal agencies. The president is controlling. How do
Speaker 3: you reconcile those.
Speaker 2: Two, Well, they want the president, not the executive briends.
Speaker 2: They think the president under unitary executive has to be
Speaker 2: in charge of all. There has to be one line
Speaker 2: from the president every person in the administration. So they
Speaker 2: want to politicize the executive actual and they want to
Speaker 2: get rid of expertise. That's the twins punch. It's like
Speaker 2: Trump with his schedule f he wants to get rid of,
Speaker 2: you know, the scientists and the notion of expertise. It's
Speaker 2: also a power move for them. So they in their
Speaker 2: statutory interpretation world, they say what the law is, it
Speaker 2: comes from Marbury versus medicine. It comes from the most
Speaker 2: evacuous statement there because if you ask the president, any president,
Speaker 2: you say, with the law they say, yeah, I sign
Speaker 2: the law. So this Congress doesn't mean anything. All it
Speaker 2: says is that we get to decide. So they've tied
Speaker 2: the administra to stay up into knots by saying, if
Speaker 2: you haven't written it quite correctly, we get to say no.
Speaker 2: So they've given themselves a lot of power, mostly with
Speaker 2: the local brides in my view, and Republicans felt care
Speaker 2: to actually affirmative, really regulate. They only believe in deregulation.
Speaker 2: So it's a one way ratchet. If Trump deregulates, it's
Speaker 2: not clear they will think that's a major question. There's
Speaker 2: nothing to review.
Speaker 1: Trump is asking the judge in the hush money trial
Speaker 1: where he was convicted for things that happened before you
Speaker 1: as president. So tell us what Trump's argument is.
Speaker 2: Okay, So Hope Hicks testified and she corroborated the testimony
Speaker 2: of Michael Cohen. She was an official, she worked for Trump,
Speaker 2: and in this opinion it says conversations with the Attorney
Speaker 2: General Bill Barr are absolutely amused and federal constitutional law
Speaker 2: governs any criminal Trump. So the question is whether he's
Speaker 2: going to say, okay, I think they would have held
Speaker 2: the same verdict even if we get rid of that testimony.
Speaker 2: It was harmless error. If a judge does that, I'm
Speaker 2: sure there will be six billion appeals. I think they
Speaker 2: thought that the danger here is criminalizing politics, and the
Speaker 2: right keeps telling me, oh, this means Trump can't vindictively
Speaker 2: prosecute bids and that's just false because you can. You
Speaker 2: can still prosecute people for personal acts. Right, So this
Speaker 2: was a personal act in the New York case. So
Speaker 2: what he paid off the porn star before he was president,
Speaker 2: that was personal. He is a personal lawyer. He wasn't president,
Speaker 2: so you can't say that. But there was testimony in
Speaker 2: the case by one of his aides about the payments
Speaker 2: when he was in the White House. So basically two
Speaker 2: district court judges, the guy in New York and Chuck Kins,
Speaker 2: their heads must be sinning because they have to decipher
Speaker 2: all this stuff and it's not clear what they should do.
Speaker 2: My own view is this is one of those cases
Speaker 2: where they should think of the country because this is
Speaker 2: just going back to the court. It's like the abortion,
Speaker 2: Like they decided the abortion things that he would go away,
Speaker 2: and if anyone knows anything about the abortions and stuff
Speaker 2: and the different state lawns. So that's kind of crazy.
Speaker 2: That's going back done. And so I just road up
Speaker 2: in the New Republic about you know, this is just
Speaker 2: chaos right now. You know, I defend the different realms
Speaker 2: of politics and law, and law should move flow. This
Speaker 2: is why progresses don't like me, because I'm like, now,
Speaker 2: there's some virtue to moving flow. Even Brown, there was
Speaker 2: virtue in them getting to the point where it was
Speaker 2: ridiculous when a guy was sitting outside the classroom, you know,
Speaker 2: and the black guy had to sit two inches away
Speaker 2: from the classroom. I mean, the cases have made it,
Speaker 2: you know, important for the court at that point in
Speaker 2: real life to make a general pronouncement. But this court
Speaker 2: has not moved slowly, and it's philosophy really isn't coherent.
Speaker 2: So they're taking a modern notion of right that no
Speaker 2: historian things existed in seventeen eighty seven. So it's really
Speaker 2: a problem. And one of the reasons that the problem
Speaker 2: is that said sock is the only source of information.
Speaker 2: You know, it's a feedback loop over there. So I
Speaker 2: used to I've appeared there's maybe twenty times on statutory
Speaker 2: interpretation the separation of powers, because I'm one of the
Speaker 2: few women who do the separation powers. Because the last
Speaker 2: time I went there and I was talking about the
Speaker 2: Federalist fakers, I have a theory about them, and it's
Speaker 2: kind of interesting. I think, you know, I get a
Speaker 2: good speech, and I made it an aside about President Biden,
Speaker 2: who thought I was a nutcase because I had had
Speaker 2: the Federalist papers on my lap reading them because I
Speaker 2: wanted to be an academic, and he thought that was
Speaker 2: very weird for a feminine and they bowed him. When
Speaker 2: I said, Biden, they booed, that's not a legal society.
Speaker 2: That's some kind of political campaign to me, So you know,
Speaker 2: it's not it's not a happy look for those of
Speaker 2: us who care about the rule of wary law. The
Speaker 2: good news is thereas a new conservative society called the
Speaker 2: rule of Law Society. Like Peter Kreiser, all those people
Speaker 2: I mentioned a rote depth brief in the case they
Speaker 2: told them not to do this. So there is an
Speaker 2: alternative now for students and people who think they're conservative.
Speaker 2: I don't. I won't join it because they say they're conservative.
Speaker 2: I don't think that's the rule of we wal WAW
Speaker 2: and not conservatives liberal. The rule of law is about consistency,
Speaker 2: It's about certain kinds of reasons. So politicians they just
Speaker 2: say stuff they don't necessarily have to have good reasons. Right.
Speaker 2: Judges have to have reasons that make sense to lots
Speaker 2: of other lawyers not to be treated with derision. So
Speaker 2: that's why I'm sad for the court because the American
Speaker 2: public is just not going to understand this, and it's
Speaker 2: going to breed a lot of cynicism in our system.
Speaker 2: Just as a time, we need faith in the rule
Speaker 2: of loss. It's work of progress. We often fail all
Speaker 2: the time, but this was a massive fail.
Speaker 1: The implications of this decision will reverberate and keep reverberating.
Speaker 1: Thanks so much for joining me, Victoria. That's Professor Victoria
Speaker 1: Norse of Georgetown Law. And that's it for this edition
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