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Speaker 3: There is now a chance that we don't get a
Speaker 3: single fed rate cut before the election, and we might
Speaker 3: not get a second Trump trial before the election either, Joe,
Speaker 3: depending on how the Supreme Court rules after the arguments
Speaker 3: they heard today.
Speaker 4: A massive rerating from the economy to the political world. Yes,
Speaker 4: and this is why you have to join us every
Speaker 4: day here on Bloomberg, because it really is remarkable how
Speaker 4: a narrative can shift overnight. And I think that we
Speaker 4: can say that's already happened today in the Supreme Court,
Speaker 4: regardless of how this turns out.
Speaker 3: Yeah, we have to keep in mind here for our
Speaker 3: TV and radio audiences. There were already two lower courts
Speaker 3: that ruled Trump was not immune from prosecution. He had
Speaker 3: appealed it to the Supreme Court, and everyone was assuming
Speaker 3: the Supreme Court would decide on similar grounds. Some thought
Speaker 3: the Supreme Court wouldn't even take up this case at all, which,
Speaker 3: of course they have done. But judging the way the
Speaker 3: arguments have gone today, maybe it's not as cut and
Speaker 3: dry as legal analysts initially thought when they were considering
Speaker 3: what these nine justices might do a lot of folks.
Speaker 4: Told us the Supreme Court wouldn't even take this up
Speaker 4: at all because the Appeals Court's case was so strong,
Speaker 4: so well written. So let's explore some of the nuances
Speaker 4: here with Greg's store. As we mentioned reporting for Bloomberg
Speaker 4: on the Supreme Court, I can only imagine what your
Speaker 4: day has been like so far. It's very kind of
Speaker 4: you to spend some time with us. It's good to
Speaker 4: see you. Hearing from Chief Justice Roberts criticizing the DC
Speaker 4: Court of Appeals decision got everyone's attention today. Is it
Speaker 4: possible they just kick it down to the court. What
Speaker 4: kind of options are you weighing in your head as
Speaker 4: you listen to the justices?
Speaker 5: Yeah, the Chief Justice raised that very possibility. Maybe we
Speaker 5: should kick it back down to the appeals court, or
Speaker 5: at least we should tell them that reasoning is wrong
Speaker 5: sort of. The overall sense in the courtroom was, we
Speaker 5: want to draw a line here between what our official
Speaker 5: presidential acts and therefore potentially off limits for prosecution, and
Speaker 5: what are not what are private acts? And the Chief
Speaker 5: Justices question and some other questions suggested they didn't think
Speaker 5: the lower courts had done enough analysis to try to
Speaker 5: separate out the you know, what's in and what's out?
Speaker 3: Okay, So it kind of raises this question if they're
Speaker 3: just kicking it down to a lower court to ultimately
Speaker 3: decide if this is going to become more narrow just
Speaker 3: considering the specific things that Trump is charged with and
Speaker 3: what he did in office, or if I just wonder
Speaker 3: how narrow or sweeping and broad Ultimately this decision is
Speaker 3: whether or not it's made by the Supreme Court or
Speaker 3: by a lower court that they've kicked it back to.
Speaker 5: Well, in terms of the big constitutional principles, they're clearly
Speaker 5: thinking about something sweeping. They really want to think about this,
Speaker 5: and Justice Kavanaugh talked about, you know, I'm thinking about
Speaker 5: future presidents and how it's going to affect them. So
Speaker 5: in terms of the principles big, in terms of the
Speaker 5: Trump case, it really kind of depends that Jack Smith,
Speaker 5: special counsel, his lawyer in his office, Michael dreven was
Speaker 5: basically arguing, look, you know, just on stuff that is
Speaker 5: undisputably private actions by the president, we have plenty to
Speaker 5: go to trial here. And in fact, they say, you know,
Speaker 5: even if you think a few things are off limits,
Speaker 5: let the trial judge sort that out. Let's go ahead
Speaker 5: right now. So the exact impact of this Supreme Court
Speaker 5: decision on the Donald Trump trial remains to be seen.
Speaker 4: Is it unlikely or possible that the court completely agrees
Speaker 4: with Donald Trump and the presidency is almost re established
Speaker 4: or reinvented in a certain way.
Speaker 5: Yeah, that didn't seem likely. I mean, Donald Trump's arguments
Speaker 5: were really really broad that he was making. And even
Speaker 5: you know, Clarence Thomas the very first question out of
Speaker 5: the box, you know, basically saying, where is this in
Speaker 5: the constitution, this notion of presidential immunity? You know, you know,
Speaker 5: and he said before it's not in there. So it's
Speaker 5: hard to see that Donald Trump, Donald Trump wins a
Speaker 5: decision kicking out the case. That's that's not likely to happen,
Speaker 5: but it could be enough to kick the can far
Speaker 5: enough down the road that we get past the November election,
Speaker 5: and then if he becomes president, it'd be incredible, but
Speaker 5: he would have the power to say Justice Department drop
Speaker 5: this case.
Speaker 3: Right, So, so much of this really just comes down
Speaker 3: to timing more than anything else. Greg, Obviously, the Supreme
Speaker 3: Court could wait until the last day of their term
Speaker 3: to rule on this or to issue an opinion on this,
Speaker 3: if they so choose, which would be end of June.
Speaker 3: If they're just going to kick it down to another court,
Speaker 3: would they wait that long or would is that something
Speaker 3: they typically would decide on faster?
Speaker 5: You know, given the scope of the questions, they're clearly
Speaker 5: thinking about big things, and it's hard to imagine they're
Speaker 5: going to crank that out in just a matter of
Speaker 5: a few weeks. And this is the very last argument
Speaker 5: day of the term. And even under the best case scenario,
Speaker 5: even if this were an a risk case or some
Speaker 5: other kind of narrow area of law, you wouldn't expect
Speaker 5: the decision till June. So I would be surprised, given
Speaker 5: the way it went today, if we get a decision
Speaker 5: before the second half of June.
Speaker 3: All right, Greg store Bloomberg, Supreme Court reporter, one of
Speaker 3: the best in the business. Thank you so much. And
Speaker 3: that just gets to the point, Joe of the election timeline,
Speaker 3: because if we're assuming June, and the judge in this
Speaker 3: case in DC, Tanya Chutkin, has said, I will give
Speaker 3: all parties three months to prepare at least for trial. Yes, realistically,
Speaker 3: assuming no further delays, which we know is always the
Speaker 3: effort of Trump's legal defense team is to delay, delay, delay.
Speaker 3: It would be incredibly hard, if not just to begin
Speaker 3: the trial, certainly to finish it before voters are heading tone.
Speaker 4: So we're back in this world now where we're talking
Speaker 4: about it. Imagine a president elect potentially on trial like
Speaker 4: that after the election and before the inaugural. This is
Speaker 4: a possibility, just like so many are. And I'll remind
Speaker 4: everybody that Donald Trump is actually back in court today,
Speaker 4: not in the Supreme Court, but New York with his
Speaker 4: criminal trial, the hush money case, resuming testimony. David Pecker,
Speaker 4: former National Inquirer publisher, on the stand, and we did
Speaker 4: hear from Donald Trump outside the court room. He stopped
Speaker 4: to talk to some workers on the side of the road.
Speaker 4: Kaya you talked to some reporters as well. Here he is.
Speaker 6: We have a big case today. This judge isn't allowing
Speaker 6: me to go. We have a big case. Sendent the
Speaker 6: Supreme Court of a presidential immunity. A president has.
Speaker 7: To have immunity.
Speaker 6: If you don't have immunity, you just have a ceremonial president.
Speaker 3: So for more on this, we turn to an expert
Speaker 3: on constitutional law. Elizabeth Widra is joining us now. She
Speaker 3: is the Constitutional Accountability Center President Supreme Court litigator herself.
Speaker 3: She's here with us in our Washington, DC studio. Elizabeth,
Speaker 3: thank you so much for being with us. I wonder
Speaker 3: if you could just first give us your take on
Speaker 3: what you heard in the arguments today, the kind of
Speaker 3: questions the justices were asking, the answers they elicited, and
Speaker 3: ultimately how you think that will shape what ultimately is
Speaker 3: decided here.
Speaker 7: Yeah, I mean, it was really an extraordinary morning at
Speaker 7: the Supreme Court. Here we have this unprecedented argument for
Speaker 7: broad sweeping permanent immunity from criminal prosecutions for former presidents.
Speaker 7: We've never heard that before. This is definitely, as many
Speaker 7: things with Donald Trump, something that's unprecedented. And the justices
Speaker 7: were extremely skeptical, I would say most of them, of
Speaker 7: that broadest possible claim that Donald Trump is making. There
Speaker 7: did see to seem to be some interest in providing
Speaker 7: some protections for presidents for clearly official acts, keeping those
Speaker 7: in some ways protected from criminal prosecution. But what I
Speaker 7: heard today.
Speaker 4: From the justices.
Speaker 7: Was really a reaffirmation of the very important principle that
Speaker 7: goes back to the very beginnings of our nation that
Speaker 7: no one is above the law, including the president, perhaps
Speaker 7: especially the president. You know, when our constitution was drafted,
Speaker 7: it was very important that our chief executive not be
Speaker 7: a king. An absolute immunity was something that the King
Speaker 7: obviously would have enjoyed in Great Britain and something we
Speaker 7: did not want to replicate here in the United States.
Speaker 7: So the Supreme Court, of course, seemed to recognize that.
Speaker 7: And we're troubled by the assertion from Donald Trump's lawyer
Speaker 7: that he should be entitled this type of immunity. You know,
Speaker 7: some of the arguments were about line drawing, you know,
Speaker 7: what actions might be immune from criminal prosecution, and that's
Speaker 7: very few cool speak to.
Speaker 4: Us about that. The difference between an official and a
Speaker 4: private act. How is that being redefined right now?
Speaker 7: Yeah, So they were trying very hard not to redefine it,
Speaker 7: but rather to try to draw lines based on what
Speaker 7: we already know. So the lawyer for the United States.
Speaker 7: Michael Dreven did a very good job of saying, you know,
Speaker 7: there's a few core things that only the president can act,
Speaker 7: ample recognizing foreign nations or making appointments where that's just
Speaker 7: beyond the reach of congressional legislation, including criminal laws. But
Speaker 7: pretty much everything else is fair game, except if there's
Speaker 7: an as applied challenge, which was very legal ease, but
Speaker 7: basically it means that otherwise the president can be criminally
Speaker 7: liable if the facts suggest. One thing that I thought
Speaker 7: was extremely interesting that came out today was several justices,
Speaker 7: notably Amy Cony Barrett, questioned Trump's lawyers very closely about
Speaker 7: the indictment from Jack Smith and said, okay, let's go
Speaker 7: through some of these acts. You know what he was
Speaker 7: trying to assuming the indictment is correct, And that was
Speaker 7: an assumption that Trump's lawyer had to do when he
Speaker 7: was trying to find these votes, when he was trying
Speaker 7: to get this fake slate of electors. Was that an
Speaker 7: official presidential act or was that a private act? And
Speaker 7: Trump's lawyer did concede that several of these indicted actions
Speaker 7: were private and not official even under their definition. And
Speaker 7: what that means is that the trial could go forward
Speaker 7: even if Trump's argument about official acts were to be accepted.
Speaker 4: And I'm not sure it will be really important.
Speaker 7: It's very important now that, of course the question then
Speaker 7: gets to timing, but I thought it was really important
Speaker 7: that there was that concession that the trial could go
Speaker 7: forward at least in some way.
Speaker 3: Well, and it's worth keeping in mind that while we
Speaker 3: did see specific questioning around the case here in Washington,
Speaker 3: he's claimed immunity from prosecution in the Document's case as
Speaker 3: well down in Florida, which is another federal case. So
Speaker 3: how are all of these things potentially tied together? What
Speaker 3: implication could there be not just for the case in Washington,
Speaker 3: but the case in Florida. And then also I'm assuming
Speaker 3: this doesn't apply to the state cases like in Georgia
Speaker 3: for the election subversion, because there's multiple criminal cases that
Speaker 3: we're dealing with here.
Speaker 7: Yes, it's a little hard to keep track, but for sure,
Speaker 7: So he's also planning immunity exactly right in the document's
Speaker 7: case in Florida. You know, I think one of the
Speaker 7: things that's really important about this case, especially in terms
Speaker 7: of the timing, is that if it isn't finished before
Speaker 7: the election, and if Donald Trump were to win reelection,
Speaker 7: because it's a federal case, presumably once he took o
Speaker 7: for the Justice Department could make it go pardon. Yes,
Speaker 7: that is not the case, of course, when it comes
Speaker 7: to this new Arizona indictment or the New York case
Speaker 7: that's currently underway, because those are state criminal indictment. So
Speaker 7: that's an important distinction.
Speaker 4: It absolutely is. As we spend time with Elizabeth Widra,
Speaker 4: president of the Constitutional Accountability Center, Supreme Court litigator, we
Speaker 4: have a voice of experience here at the table, and
Speaker 4: I want to ask you about history President here. Twenty twenty,
Speaker 4: the Supreme Court rejected Donald Trump's claim of absolute immunity.
Speaker 4: To what extent could that lead us to a decision here?
Speaker 7: Yeah, I mean, I think you know, the Court has
Speaker 7: on many occasions pushed back on the most extreame legal
Speaker 7: claims that Donald Trump has made. You know, he has
Speaker 7: often whether it's the election fraud so called election fraud
Speaker 7: claims that he did bring before courts over and over again,
Speaker 7: and he was repeatedly rebuked on those, even by judges
Speaker 7: that he himself appointed. So he's often lost on these
Speaker 7: major legal claims that he's brought before.
Speaker 4: They seem to be questioning that today, though, are you
Speaker 4: Are you sensing that this is a different conversation than
Speaker 4: we predicted or expected.
Speaker 7: I think what they are concerned about is drawing the line.
Speaker 7: I think in some ways the indicted actions here, the
Speaker 7: alleged actions in this particular case, subverting of the will
Speaker 7: of the people, trying to stop the peaceful transfer of power,
Speaker 7: which go to the very heart of American constitutional democracy.
Speaker 7: That seems pretty clear that it's not within you know,
Speaker 7: the president's duty to take care of the laws to
Speaker 7: violate them. But I think they are concerned, as they
Speaker 7: should be the Supreme Court, about what happens in the future.
Speaker 7: So that's what I think a lot of what we
Speaker 7: heard today was about.
Speaker 3: And just we have less than a minute left. But
Speaker 3: to go back to your point about the thinking of
Speaker 3: the founders when they were actually forming our system of
Speaker 3: government and writing the Constitution with the separation of powers
Speaker 3: in three different branches. If you are a strict constitutionalist,
Speaker 3: is there any other way to read the question here
Speaker 3: and to read the document that would suggest that there
Speaker 3: is credibility to Trump's argument If you are a strict constitutional.
Speaker 7: Absolutely not so there's sometimes where history is ambiguous. This
Speaker 7: is not one of those cases. They sold the Constitution
Speaker 7: to the people in part because this president would not
Speaker 7: be a king, and in part because he could be
Speaker 7: potentially criminally liable if he committed crimes, which is a
Speaker 7: major change from the British system. So if you're an originalist,
Speaker 7: if you're a strict constitutionalist, there's really only one outcome here,
Speaker 7: and it's that Trump's really outrageous claim of immunity, unprecedented
Speaker 7: claim is rejected.
Speaker 4: We're really glad you could come talk to us today.
Speaker 4: Thank you for being with us. Hasty day of arguments,
Speaker 4: Elizabeth Widraw. Fascinating conversation, especially to hear this from an
Speaker 4: act Supreme Court litigator. Keep this conversation in mind as
Speaker 4: we wait for a ruling in this case. I'm Joe
Speaker 4: Matthew alongside Kaylee Lines in Washington. Will assemble the panel next.
Speaker 4: The political side of this is ahead only on Bloomberg.
Speaker 1: You're listening to the Bloomberg Balance of Power podcast.
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Speaker 4: Moving on to our panel here, Kayley, it's not just
Speaker 4: the economic news in the market reaction today. It's a
Speaker 4: very significant set of arguments being heard before with the
Speaker 4: Supreme Court. They've actually wrapped their session for the day,
Speaker 4: the arguments over Donald Trump's claim of presidential immunity. Our
Speaker 4: signature panel is with us now, Rick Davis and Jeanie Shanzano,
Speaker 4: Bloomberg Politics contributors. Having heard some skepticism from Swing Justice
Speaker 4: is when it comes to Jack Smith's arguments against Genie.
Speaker 4: I wonder your thoughts today. This could go a couple
Speaker 4: of different ways. But based on what we heard and
Speaker 4: I realized we're reading Tea Leave's we're trying to understand
Speaker 4: what justices mean with their statements and their questions. This
Speaker 4: day actually went better for Donald Trump than a lot
Speaker 4: of people thought it did, didn't.
Speaker 8: It It really did, you know. And I think back
Speaker 8: to when they granted cert in this case. I think
Speaker 8: that's when I was most surprised, because I thought, for sure,
Speaker 8: this close to an election, they would let the Circuit
Speaker 8: Court's decisions stand. They did not, And so that was
Speaker 8: the biggest surprise. But once they had done that, I
Speaker 8: think the thinking was for most of us that they
Speaker 8: would put this to rest fairly quickly. They didn't do that,
Speaker 8: and now, based on the oral arguments today, it looks
Speaker 8: like they could send it to a lower court. We
Speaker 8: certainly won't get a decision from them, you know, arguably
Speaker 8: until late June, the term ends. And so this is
Speaker 8: a win from Donald Trump just from the calendar perspective,
Speaker 8: because it really won't give enough time to have the
Speaker 8: January sixth trial before the election. And of course, even
Speaker 8: if they have the trial, you are so dangerously close
Speaker 8: to an election that for supporters of Trump and opponents,
Speaker 8: that raises all kinds of questions about the political machinations
Speaker 8: of the court in the electoral context. So I think
Speaker 8: it was a win for him as far as the
Speaker 8: schedule is concerned, at.
Speaker 3: The least, well Rick, as we consider the potential political
Speaker 3: ramifications in terms of the election cycle itself. Obviously, Trump's
Speaker 3: base of supporters, as we know has been proven time
Speaker 3: and again, is not likely to leave his side. Believes
Speaker 3: that he is being targeted by this Justice Department as
Speaker 3: being weaponized against him. This is a witch hunt, while
Speaker 3: as whereas those who are not in Donald Trump's can't
Speaker 3: believe that he's done things wrong, deserves to be prosecuted,
Speaker 3: what have you. There's already two very firm sides here.
Speaker 3: I just wonder the basket of minds were realistically thinking
Speaker 3: about that would care whether or not he goes to trial,
Speaker 3: that care about the outcome, that will change their vote
Speaker 3: because of it.
Speaker 9: Yeah, I think I'd be watching two distinct groups. One,
Speaker 9: we know from our Bloomberg Swing state survey that anywhere,
Speaker 9: depending upon the state, from six to fifteen percent of
Speaker 9: Donald Trump's supporters are willing to not vote for him
Speaker 9: if he is quote convicted of a crime. And that
Speaker 9: goes without saying for now which court case includes. I
Speaker 9: think it's general enough to say if he's convicted of
Speaker 9: a criminal act, he loses support some of it amongst
Speaker 9: that group. Then I would also say, there are the
Speaker 9: undecided voters, and there are plenty of them in some
Speaker 9: of these states, and the main focus of the Trump
Speaker 9: campaign and the Biden campaign has been to how to
Speaker 9: have a conversation with them. And these are primarily suburban
Speaker 9: women vote and they could determine the outcome of the election,
Speaker 9: regardless of a conviction or an acquittal. And this isn't
Speaker 9: the kind of topic you'd want to be having six
Speaker 9: months before a presidential election with a targeted voter like
Speaker 9: a suburban woman. Hey I won today, I've got immunity.
Speaker 9: I can do whatever I want to do. I don't
Speaker 9: think that's going to be any commercials coming out of
Speaker 9: the Trump campaign. So yeah, I think it's a problem.
Speaker 9: I think it delays the conversation that they're trying to have,
Speaker 9: and of course there's these ripple effects. Today, a targeted state, Arizona,
Speaker 9: has announced eighteen defendants are indicted because of election activity,
Speaker 9: including a unindicted co conspirator named Donald Trump, whose name
Speaker 9: will be on the ballot in November. I would say
Speaker 9: I'd rather have a good, clean win in Arizona than
Speaker 9: worrying about what's going to happen in the Supreme Court today.
Speaker 9: Today was a bad day for Donald Trump in Arizona.
Speaker 4: Well, well, this is all super important, Genie, but you
Speaker 4: can see this coming, right, and let's the Supreme Court
Speaker 4: completely rules against Donald Trump. If there's any sunlight here,
Speaker 4: you can write the truth social posts now vindicated. We
Speaker 4: brought our claim to the Supreme Court and showed the
Speaker 4: world that Joe Biden's weaponization of government was illegal. And
Speaker 4: that's going to be the perception, right.
Speaker 8: Yeah, that's going to be what Donald Trump and his
Speaker 8: campaign team say. Quite frankly, what else can they say,
Speaker 8: So that is what they're going to say. I don't
Speaker 8: think we know yet how this plays out.
Speaker 10: I am a polster, but one.
Speaker 8: Thing we know about polling is it's very difficult to
Speaker 8: pull people on future behavior, particularly when they don't have
Speaker 8: a good sense of the scenario.
Speaker 2: So, you know, we.
Speaker 8: Always ask them who they're going to vote for, but
Speaker 8: there who they support. But to ask voters you know,
Speaker 8: what you would do if somebody is acquitted or if
Speaker 8: somebody is found guilty, it's really hard to know, at
Speaker 8: least for me as a polster, if you could trust
Speaker 8: the data coming out of that. So we really are
Speaker 8: truly in uncharted territory in terms of how this all
Speaker 8: plays out. Donald Trump will surely say that this was
Speaker 8: a witch hunt and he was vindicated by the Supreme
Speaker 8: Court if that happens, but I'm not sure how that
Speaker 8: lands with these voters. So we really have to wait
Speaker 8: and see. You know, it's one of the cases in
Speaker 8: which for me as a social scientist, there's not a
Speaker 8: lot of research you can do to get to an answer,
Speaker 8: and we can't look back in history because we've never
Speaker 8: been here before.
Speaker 3: It's a point very well taken, Genie and of course Rick.
Speaker 3: The other side to this is that it's not just
Speaker 3: about what people do with their vote. It's also about
Speaker 3: what people do with their dollar. And to this point,
Speaker 3: Donald Trump has proven an incredible ability to fundraise off
Speaker 3: of these legal challenges, at least since his court trial
Speaker 3: has kicked off in New York State, where he is
Speaker 3: again today. Mind you, he's been able to raise millions
Speaker 3: of dollars. So how should we be thinking about that
Speaker 3: dynamic here? As well?
Speaker 9: Everything is relative, relevant or relative. His first quarter fundraising
Speaker 9: lagged his previous fundraising in twenty twenty three. So sure,
Speaker 9: he is raising money today while he sits in the court,
Speaker 9: but he's not raising as much today as he did
Speaker 9: a year ago. Today if under the same circumstances, and
Speaker 9: he is plowing more and more of that money into
Speaker 9: legal fees, so the net to him keeps getting smaller,
Speaker 9: So smaller overall base, smaller ability to spend. We even
Speaker 9: saw data off of this report that Obama for the
Speaker 9: first time surpassed Trump on small dollar donors. That used
Speaker 9: to be what Donald Trump had is his special sauce.
Speaker 9: He had more small dollard donors than anybody, and those
Speaker 9: people would be with him no matter what thickened thin
Speaker 9: and that money would just roll in. So those times
Speaker 9: may be a change it.
Speaker 5: All right.
Speaker 3: Rick Davis and Jeanie Shanzano are Bloomberg Politics Contributor's point.
Speaker 3: While taken from Rick on Biden pulling in those small
Speaker 3: dollar donations as well. There's so many different facets to
Speaker 3: this conversation, and we're keeping our eye on the court,
Speaker 3: not just here the Supreme Court in Washington, but up
Speaker 3: in New York as well.
Speaker 4: Joe, Yeah, We've got a lot more to follow here
Speaker 4: on Balance of Power. This is Bloomberg.
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Speaker 4: We talk about politics. We've always got our eyes on
Speaker 4: Wall Street for you, and in the case of today,
Speaker 4: a courtroom in New York and the Supreme Court here
Speaker 4: in Washington. This is a heck of a day for
Speaker 4: Donald Trump. I'm not even done there. I haven't mentioned
Speaker 4: Michigan yet. Here like a triple split screen for the
Speaker 4: former president. Arguments are being heard today before the Supreme
Speaker 4: Court on the presidential immunity claim. This is what will
Speaker 4: either prevent or precede Jack Smith's January sixth trial here
Speaker 4: in Washington, even as Donald Trump goes through the criminal
Speaker 4: trial in New York, the hush money trial. And he
Speaker 4: spoke from New York this morning. Remember he's got to
Speaker 4: be in the courthouse for that, so not in Washington today,
Speaker 4: but he spoke in advance of the arguments in the
Speaker 4: Supreme Court. Let's listen to what he said.
Speaker 6: We have a big case today. This judges in allowing
Speaker 6: me to go. We have a big case today in
Speaker 6: the Supreme Court. Or presidential immunity. A president has.
Speaker 7: To have immunity.
Speaker 6: If you don't have immunity, you just have a ceremonial President.
Speaker 4: Donald Trump stopping on his way to the courthouse earlier
Speaker 4: today to talk with workers, a lot of whom were
Speaker 4: wearing red Maga hats, and reporters who were across the
Speaker 4: street making a little moment there on the campaign trail.
Speaker 4: But if you're actually paying attention, you can hear these arguments.
Speaker 4: I realize you don't have cameras in the courtroom, but
Speaker 4: we've been listening to the conversation inside the Supreme Court,
Speaker 4: and we're going to talk in a moment with Robert
Speaker 4: macwerter about this. What I read is a bad sign
Speaker 4: for Jack Smith on the terminal. Our top live coverage
Speaker 4: has been excellent today. If you want to follow the
Speaker 4: bouncing ball. Here in some pretty dense material the Chief Justice,
Speaker 4: Justice Roberts criticizing the DC Court of Appeals today it's
Speaker 4: decision that a president can be prosecuted for his official
Speaker 4: acts quote because the fact of the prosecution means that
Speaker 4: the former president has allegedly acted in defiance unquote. Robert said,
Speaker 4: such a broad statement concerns him as we read the
Speaker 4: tea leaves. It's great to have constitutional law attorney Robert
Speaker 4: McWherter back with us. Robert, thank you for joining. What
Speaker 4: are you gleaning from the arguments today?
Speaker 10: Well, I think you just said it. It's like reading
Speaker 10: tea leaves. Often justices will say stuff in oral arguments
Speaker 10: because they want to hear what the responses are, and
Speaker 10: they're not always signaling where they're going to go. Look,
Speaker 10: just in terms of this case in general, I think
Speaker 10: it's kind of good to keep in mind. In a way,
Speaker 10: Donald Trump is already won. His goal was to delay
Speaker 10: Jack Smith's prosecution, and he effectively did so by getting
Speaker 10: the Supreme Court to even take this case. I think
Speaker 10: most people would say that Trump's legal arguments are rather weak.
Speaker 10: The Court may modify that and give a few things,
Speaker 10: But if you listen to Donald Trump and his claims
Speaker 10: for absolute immunity, what he is literally saying is that
Speaker 10: a president can do anything, so that if Joe Biden
Speaker 10: was to order Seal Team six to kill Donald Trump
Speaker 10: and take him out, Joe Biden could not be prosecuted,
Speaker 10: according to Donald Trump's own arguments. Well, I don't think
Speaker 10: most of us want to live in America where the
Speaker 10: president with that kind of power. And it's kind of
Speaker 10: interesting because on the campaign trail, Donald Trump keeps saying
Speaker 10: Joe Piden needs to be criminally prosecuted for what he's
Speaker 10: doing to me. Now, well that kind of cuts against
Speaker 10: Trump's argument in the Supreme Court, where a president's not
Speaker 10: supposed to be prosecuted for anything. And I just have
Speaker 10: to say just to give a little history here. You know,
Speaker 10: America began, of course with the Declaration of Independence. You know,
Speaker 10: we hold these tchooths to be self evident that all
Speaker 10: men are created equal, everyone's equal before the law. But
Speaker 10: you know, right after that first part of the declaration,
Speaker 10: the preamble, it's an indictment of King George the Third
Speaker 10: for his criminal acts, which basically disqualified him from being
Speaker 10: our sovereign. That's why we went on. Of course. Well,
Speaker 10: one of those indictments is he has incited domestic insurrection
Speaker 10: among us. Well, that was the indictment of King George.
Speaker 10: You know, with that history and the charge of Donald
Speaker 10: Trump for inciting domestic insurrection among us, which is what
Speaker 10: he has already been found to have done with the
Speaker 10: January sixth Commission and others, I would find it shocking
Speaker 10: that a Supreme Court would cut out this broad immunity
Speaker 10: for him, given our history that we didn't want to
Speaker 10: elect King George. We got rid of King George. And
Speaker 10: that's one of the reasons.
Speaker 4: Why really great analysis, Robert. You mentioned the timeline here,
Speaker 4: and I realized it's a win for Donald Trump to
Speaker 4: delay anything at this point with November in mind, but
Speaker 4: it wouldn't be outside of the realm for the Court
Speaker 4: to rule on this by June, and that would leave time,
Speaker 4: presumably for Jack Smith's trial, wouldn't it.
Speaker 10: Well, yes, you know, in the United States versus Nixon,
Speaker 10: they ruled in sixteen days, which, okay, if you wait
Speaker 10: sixteen days for a haircut, that's a heck of a
Speaker 10: long time. But that is blazingly fast to the Supreme Court.
Speaker 10: So just to give some sense of how the Court
Speaker 10: does its work, so if they ruled before June, it
Speaker 10: would be considered blazingly fast. Now I hope the Court
Speaker 10: does and I hope we get some answer to this.
Speaker 10: But you know, again, to go back to history mentioning
Speaker 10: Richard Nixon, I remember he had that interview with David
Speaker 10: Frost where he said, and it was a real gaff
Speaker 10: on his part, but he said, you know, when the
Speaker 10: president does it, that means it's not illegal. Well, everybody
Speaker 10: widely condemned that and legally condemned that, And so I
Speaker 10: don't see how Donald Trump's arguments should get much more
Speaker 10: attention or credits than Richard Nixon's arguments. Did you know
Speaker 10: some forty years ago, fifty years ago, you.
Speaker 4: Know, we live in an idol of Donald Trump's and
Speaker 4: Richard Nixon told Donald Trump reportedly that he wished he
Speaker 4: had fought harder at the time instead of resigning, just
Speaker 4: for the sake of everyone following along on their home games. Here, Robert,
Speaker 4: for our audience to understand, what are the options for
Speaker 4: the court into the include just sending this back to
Speaker 4: the appeals court?
Speaker 10: Oh yes, they could actually keep this thing going for
Speaker 10: a long time. The options is they could sit on
Speaker 10: it for months and months. They could even kick it
Speaker 10: off to the next year. The court can take has
Speaker 10: a lot of power in terms of when this thing
Speaker 10: and everything is on hold until they do so. They
Speaker 10: can move quickly or they can move slowly, and historically speaking,
Speaker 10: they have done both things in different cases. They could
Speaker 10: send it back to the DC Court of Appeals to
Speaker 10: modify their judgment somehow. They could create an entirely new
Speaker 10: test about well, here's when a president might be prosecuted,
Speaker 10: here's when the president might not be It's going to
Speaker 10: be hard. You're going to get I would guess what's
Speaker 10: called a plurality decision. Even if Trump wins, it would
Speaker 10: be what's called a plurality, which means the justices won't
Speaker 10: all agree on the same reasoning about why. And you're
Speaker 10: going to have some very vigorous descents, and frankly, you're
Speaker 10: going to get some interesting alignments. You know, you can
Speaker 10: expect the so called liberal justices will go against this,
Speaker 10: but you might get some of the others that will
Speaker 10: join them for matters of just originalism. Outlining kind of
Speaker 10: following some version of the argument I just gave about
Speaker 10: what America was intended to be.
Speaker 4: I've only got a minute left, Robert, and I don't
Speaker 4: want to have to cut you off here, but you're
Speaker 4: so good at framing the significance of this. Historically, this
Speaker 4: ruling will end up applying to much more than Donald Trump.
Speaker 4: This is going to impact the presidency as we know it, right.
Speaker 10: Yes, And that's really the most frightening thing for me.
Speaker 10: It's not just Donald Trump and his peccadillos. It's what
Speaker 10: it means for us in the future going forward as
Speaker 10: a democracy. And you know, the Constitution actually gives the
Speaker 10: president very few direct powers. Most power president has comes
Speaker 10: from Acts of Congress, and that was by design. We
Speaker 10: wanted to limit that power. We didn't want a king
Speaker 10: of the United States, and George Washington set that president
Speaker 10: and that's something we need to keep in mind the
Speaker 10: implications for the future.
Speaker 4: Love talking with Robert mcwhorth. We learn a lot, as
Speaker 4: always with your expertise, Robert, thanks for being with us
Speaker 4: criminal and constitutional law attorney. Thanks for listening to the
Speaker 4: Balance of Power podcast. Make sure to subscribe if you
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Speaker 4: and you can find us live every weekday from Washington,
Speaker 4: DC at noontime Eastern at Bloomberg dot com.