Speaker 1: You're listening to the Bloomberg Balance of Power podcast. Catch
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Speaker 2: Welcome to the Tuesday edition of Bloomberg's Balance of Power.
Speaker 2: We've got a lot to talk about here with breaking
Speaker 2: news you heard earlier on Bloomberg. The ruling came down
Speaker 2: on immunity for President Trump. Here the former president can
Speaker 2: be prosecuted for trying to overturn the twenty twenty election
Speaker 2: according to a federal appeals court. This is a three
Speaker 2: judge panel of fifty seven page ruling. This would then,
Speaker 2: of course, Donald Trump appealing. This goes to a wider
Speaker 2: appeals court and then likely Supreme Court. The statement from
Speaker 2: the Trump campaign prosecuting a president for official acts violates
Speaker 2: the Constitution and threatens the bedrock of our republic. They write,
Speaker 2: President Trump respectfully disagree with the DC Circuit's decision, and
Speaker 2: we'll appeal it in order to safeguard the presidency and
Speaker 2: the Constitution. And so the lines are drawn. Let's bring
Speaker 2: in Eric Larson, Bloomberg's legal reporter with us from World
Speaker 2: Headquarters in New York. Eric, it's good to see you.
Speaker 2: We didn't know exactly when we would get this ruling,
Speaker 2: but here we have it. What does it mean for
Speaker 2: the timing of this trial? Of course, the Special Council
Speaker 2: Jack Smith wanted to bring this in March, it fell
Speaker 2: off the calendar. What does it mean going forward?
Speaker 3: Right? Well, as you said, we'd been waiting for this
Speaker 3: decision from the Appeals Court for a little while. I
Speaker 3: think folks were expecting it to come sooner. The judge
Speaker 3: in the case canceled the March fourth hearing. This sorry,
Speaker 3: trial was supposed to start March fourth, was potentially going
Speaker 3: to last several months, so it was not a small
Speaker 3: decision for this judge to cancel that date. It hasn't
Speaker 3: yet been rescheduled. It's likely that that decision was just
Speaker 3: a result of this Appeals Court decision on immunity taking
Speaker 3: so long. So we'll see what happens in the lower court.
Speaker 3: We'll see what Trump does next. He could ask the
Speaker 3: Supreme Court to review this, or he could also, as
Speaker 3: you mentioned, seek a review from a larger panel of
Speaker 3: Appeals Court justices, is so called en banc review. Of course,
Speaker 3: those are rarely granted and rarely succeed. But for now,
Speaker 3: the Court could not have been more clear that it
Speaker 3: disagrees with Trump's arguments, some of which were outlined in
Speaker 3: that statement you just read out. This three judge panel,
Speaker 3: two judges appointed by Biden, won by George Herbert Walker Bush,
Speaker 3: all agreeing that a former president can be charged with
Speaker 3: crimes related to their conduct in office, and that particularly
Speaker 3: around this attempt to overturn the twenty twenty election. They
Speaker 3: said that that is something that must absolutely be checked
Speaker 3: by the courts. If it's true.
Speaker 2: If the court had ruled in the other direction, would
Speaker 2: this trial, would this case be dead?
Speaker 3: Well, it would definitely have put it on the back foot.
Speaker 3: The special counsel Jack Smith, who brought this case as
Speaker 3: well as the other federal case over Trump's handling of
Speaker 3: classified records in Florida Federal Court, Jack Smith could have
Speaker 3: appealed if it had been overturned. So we would have
Speaker 3: either way seen an appeal, I would imagine. But once
Speaker 3: this does get to the Supreme Court, whether when a
Speaker 3: petition is filed to hear this, the Supreme Court could
Speaker 3: either just say no, we're actually not interested we're not
Speaker 3: going to hear this, in which case this decision today
Speaker 3: would stand and the trial would go ahead. If they
Speaker 3: do the Supreme Court were to take it up, then
Speaker 3: of course we would potentially have additional arguments at the
Speaker 3: Supreme Court and then another wait for another historic decision,
Speaker 3: which of course could delay this even further.
Speaker 2: The Supreme Court would have all the time it wanted
Speaker 2: to take right.
Speaker 3: That's right, although I would think in a case like this,
Speaker 3: I wouldn't be surprised if they expedited it, just given
Speaker 3: the importance of the question here. It's not just any
Speaker 3: criminal case here against a former president. It's a case
Speaker 3: related to an alleged attempt to illegally overturn an election
Speaker 3: and stay in office despite losing. So it's something that
Speaker 3: the court may see to think would need a resolution
Speaker 3: before the next election.
Speaker 2: Eric, does this impact the case in Georgia or is
Speaker 2: that different because it's on the state level.
Speaker 3: Yeah, it's the ladder there. It doesn't impact the case
Speaker 3: in Georgia, which of course also relates to Trump's alleged
Speaker 3: effort to conspire to overturn the election that filed under
Speaker 3: state law in Georgia racketeering violations. Various defendants in that case,
Speaker 3: including Trump, are trying to have that case thrown out.
Speaker 3: No trial has been set yet in that case, notably,
Speaker 3: so it seems to be a bit further out.
Speaker 2: Well, this is really fascinating here, if I'm understanding you correctly, Eric,
Speaker 2: everything is up in the air right now, and Donald
Speaker 2: Trump's attempts to delay, delay, delay as a strategy may
Speaker 2: have actually been strengthened by this ruling. Today. We could
Speaker 2: be in a situation where a trial is underway during
Speaker 2: the presidential the party's nominating convention, or not at all
Speaker 2: before the election. Is that right, sure?
Speaker 3: I mean, it's this is all just so unprecedented. It's
Speaker 3: really unclear what the judge of the trial judge might
Speaker 3: might do here. Obviously there's an interest, the federal interest
Speaker 3: in speedy trials and having trials happened sooner rather than later.
Speaker 3: That's that's true in all courts. Of course, they're also
Speaker 3: going to weigh against Trump's rights as a candidate as
Speaker 3: this continues to push closer and closer to the election.
Speaker 3: But of course, all this whole case probably could have
Speaker 3: moved along, you know, faster, it was delayed repeatedly. You
Speaker 3: know by the defendant in various legal maneuvers, which are
Speaker 3: his right to do. But the delay, the fact that
Speaker 3: this might be coming up closer to the election is
Speaker 3: it's not really they claim it's by design. Trump's defense
Speaker 3: is claiming that this is election interference. But I think
Speaker 3: that a lot of the timing and the delays are
Speaker 3: actually a result of the defense arguments here.
Speaker 2: Great to have Eric Larson. I appreciated Eric Bloomberg, legal
Speaker 2: reporter as we add a voice of experience in Nick Ackerman,
Speaker 2: of course, founder of the law Office of Nick Ackerman,
Speaker 2: but also former assistant US attorney, former assistant special Watergate prosecutor.
Speaker 2: Mister Ackerman, It's great to see you, Welcome back. We've
Speaker 2: talked about the virtues of this argument a couple of times,
Speaker 2: but this must really hit close to home with you
Speaker 2: having your experience on the Watergate case. Prosecuting a president
Speaker 2: we see for official acts violates the Constitution and threatens
Speaker 2: the bedrock of our republic. According to Donald Trump's spokesperson,
Speaker 2: what say you.
Speaker 4: Well, first of all, he's not being prosecuted for official acts.
Speaker 4: He's being prosecuted for criminal acts that he did outside
Speaker 4: of his duties as president of the United States. So
Speaker 4: that's the first fallacy with his argument. No one has
Speaker 4: ever understood a president to be above the law, that
Speaker 4: a president can willing nelly break the law at his pleasure.
Speaker 4: That was never the law. We never assumed that in Watergate.
Speaker 4: In fact, we assumed just the opposite. And we're investigating
Speaker 4: Richard Nixon for all kinds of violations, including obstruction of
Speaker 4: justice and income tax violations. The only reason he was
Speaker 4: not prosecuted in the end was because he was pardoned
Speaker 4: by President Trump. Other than that, we wouldn't be talking
Speaker 4: about this issue today. It would have been done and
Speaker 4: completed years ago.
Speaker 2: President Ford. Of course, the pardon, right, Is this something
Speaker 2: that you considered during the Watergate era as a potential argument?
Speaker 2: Are you surprised Richard Nixon didn't make it?
Speaker 4: This was never raised during the War Date era. No
Speaker 4: one ever had the audacity to say that the president
Speaker 4: was immune from obstructing justice and committing crimes. That just
Speaker 4: never came across our radar.
Speaker 2: That says a lot. So we have a fifty seven
Speaker 2: page opinion here unanimous three judges. If this indeed goes
Speaker 2: to the wider repellate court, which we expect what happens.
Speaker 4: Well, I think what's going to happen is he's probably
Speaker 4: going to appeal directly to the Supreme Court in order
Speaker 4: to not have this case go back to the district court.
Speaker 4: I think the Supreme Court is not going to take it.
Speaker 4: They've already got a full plate with this Fourteenth Amendment issue.
Speaker 4: I think they would prefer not to be involved in
Speaker 4: this particular case. Don't forget, if Donald Trump is convicted
Speaker 4: in the DC case, he then will have the right
Speaker 4: to appeal the entire conviction to the Supreme Court and
Speaker 4: raise this issue at a later point. So I think
Speaker 4: that is more likely what is going to happen. The
Speaker 4: real ramifications here are that the case in DC is
Speaker 4: going to be put off a little bit yet, probably
Speaker 4: not till we'll say April or May. And what's going
Speaker 4: to happen instead is that the case criminal case pending
Speaker 4: in Manhattan is going to.
Speaker 5: Go ahead first.
Speaker 4: So I think what we're looking at is that the
Speaker 4: first case that Donald Trump is going to have to
Speaker 4: defend himself on criminal matters is going to be in
Speaker 4: New York County starting the end of March.
Speaker 2: This is the Stormy Daniels case. Which is pretty remarkable
Speaker 2: to think that that would be the first to kick
Speaker 2: off here. But I just want to get a thirty
Speaker 2: thousand foot view, say again.
Speaker 4: Not really, no, No, this case is just as important as
Speaker 4: any of the others. First of all, just Stormy Daniels.
Speaker 4: What this case has to do with is Donald Trump
Speaker 4: defrauding the US voting public in twenty sixteen. What he
Speaker 4: did was he engaged in a scheme that involved not
Speaker 4: just himself, but David Pecker at the National Inquirer and others,
Speaker 4: including his own attorney, to basically keep information relating to
Speaker 4: sexual affairs that he had with various women from the
Speaker 4: voting public. Don't forget, at the point in time where
Speaker 4: he was doing this, there had already been the Access
Speaker 4: Hollywood tape that came out. There were twenty some odd
Speaker 4: women that had come out saying that he had abused
Speaker 4: them at some point, and this situation, if it had
Speaker 4: been released prior to the election, probably would have resulted
Speaker 4: in Hillary Clinton being elected. So what you really have
Speaker 4: here is Donald Trump having essentially a hoodwink the voters
Speaker 4: in twenty sixteen by keeping this information from the voting public,
Speaker 4: which is what is charged in the Manhattan indictment and
Speaker 4: thereby getting himself elected. So this is a pretty significant case,
Speaker 4: not to mention the fact that the proof here is
Speaker 4: pretty overwhelming. It's not just his former attorney Michael Cohen
Speaker 4: who's testifying, but it's also David Decker, who is then
Speaker 4: the owner of the National Inquirer, who's also going to testify.
Speaker 4: So you've got two main accomplished witnesses. Those are going
Speaker 4: to corroborate each other. You've got a tape recording between
Speaker 4: Donald Trump and Michael Cohen where they discuss the payment
Speaker 4: to another one of the women, Karen McDougall, and how
Speaker 4: they got the money to her, and the involvement of
Speaker 4: mister Picker. And then you've got a whole bunch of
Speaker 4: other witnesses who are going to corroborate various little assa
Speaker 4: specks of this whole scheme. So the bottom line is,
Speaker 4: I think this is an almost certain conviction. It's a
Speaker 4: quick trial, it's no more than three weeks, and he's
Speaker 4: going to be convicted and then go down to DC
Speaker 4: for his second conviction. That's what I think is going
Speaker 4: to have.
Speaker 2: Well, just that was incredible to listen to Nick Ackerman
Speaker 2: because so many folks, including by the way, many Democrats,
Speaker 2: have spent a lot of time trying to question the
Speaker 2: legitimacy of that case in how it reflects on the others.
Speaker 2: We hear about indictment fatigue, that Alvin Bragg bit off
Speaker 2: more than he could chew, that we should have allowed
Speaker 2: the special counsel to move forward. You see, all of these,
Speaker 2: it sounds like, is equally important.
Speaker 4: Absolutely. The problem is people have not read the indictment.
Speaker 4: All you have to do is read the statement effects.
Speaker 4: What I just said is pretty much laid out there,
Speaker 4: and for some reason, the press, the public they've forgotten it.
Speaker 4: They haven't read it. But once you dig into it,
Speaker 4: this is a very significant case. In fact, what it
Speaker 4: shows at the end of the day is he cheated
Speaker 4: his way into the presidency and then after he lost
Speaker 4: the election, he tried to cheat his way to stay
Speaker 4: in the presidency. That's what these cases are all about.
Speaker 4: With respect to the DC case and the Georgia case. Now,
Speaker 4: of course, the Florida case for the classified documents is
Speaker 4: a completely different situation, where he essentially stole classified information
Speaker 4: and obstructed the government obtaining those documents back.
Speaker 2: Nick I only have a minute. If I'm understanding you correctly,
Speaker 2: and the question I wanted to ask you the broad
Speaker 2: view here. While this made this ruling today may delay
Speaker 2: the start of Jacksmith's trial, in the end, it strengthens
Speaker 2: jack Smith's hand.
Speaker 4: No question, it absolutely does. It's just going to mean
Speaker 4: that one trial is going to go before another trial,
Speaker 4: and you're going to start in March with the Manhattan
Speaker 4: DA's office. Then you're going to go to DC. Then
Speaker 4: you're going to go to either Florida or Atlanta for
Speaker 4: the Hobby reco case. So these are all going to
Speaker 4: kind of go in succession. They could have never all
Speaker 4: gone at the same time for this simple reason that
Speaker 4: defendant can only be in one courtroom at one time.
Speaker 2: Nick Ackerman, a great pleasure. We appreciate your jumping on
Speaker 2: this story for us with little notice. This broke just
Speaker 2: a couple of hours ago. Former assistant special Watergate prosecutor,
Speaker 2: former Assistant US Attorney Nick Ackerman.
Speaker 1: You're listening to the Bloomberg Balance of Power podcast. Can
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Speaker 2: If you're just joining us. Though, it has been quite
Speaker 2: a day in Washington here with breaking news from the
Speaker 2: DC Circuit Court. We were waiting for this in the
Speaker 2: immunity case for Donald Trump. Unanimous ruling three judges on
Speaker 2: the Apeals Court ruling that Donald Trump can can be prosecuted,
Speaker 2: in other words, not immune for trying to overturn the
Speaker 2: twenty twenty election, and Donald Trump, shocker is going to
Speaker 2: appeal it. Prosecuting a president for official acts, says the
Speaker 2: campaign violates the Constitution, threatens the bedrock of our republic.
Speaker 2: President Trump respectively disagrees with the DC Circuit Court's decision
Speaker 2: and will appeal it in order to safeguard the presidency
Speaker 2: and the Constitution. This is where we begin with our panel.
Speaker 2: Glad to say, Rick and Jenie are with us on
Speaker 2: an important day here in Washington history. Bloomberg Politics contributors
Speaker 2: Genie Shanzano and Rick Davis. Genie, your thoughts on Stormy
Speaker 2: Daniels being the first case that we hear, because that
Speaker 2: is likely what's going to happen. Delaying Jack Smith's case
Speaker 2: likely until what appears to be summertime, if not fall.
Speaker 2: What does it mean for the campaign?
Speaker 6: Yeah, I mean I think this is more to the
Speaker 6: benefit of the campaign than not.
Speaker 5: They would rather have cases.
Speaker 6: That, if you've been discussing, meant some people at least
Speaker 6: feel should not have gone forward. So they'd rather have
Speaker 6: these cases. I don't want to describe it at all
Speaker 6: as frivolous, because it is not. But in the views
Speaker 6: of some people it is a political prosecution and that
Speaker 6: is clearly not the case when it comes to Jack
Speaker 6: Smith or documents.
Speaker 5: So I think that works to their advantage.
Speaker 6: But boy, this decision out of the Appellate Court today
Speaker 6: a victory for the rule of law. He is going
Speaker 6: to appeal it. But I can't imagine a world in
Speaker 6: which any Supreme Court, as conservative as they are, says
Speaker 6: that any president has absolute immunity. That is a violation
Speaker 6: of separation of powers of the likes of which our
Speaker 6: democracy has never even imagined. Talk about frivolous. That is
Speaker 6: frivolous delay tactic. He may get the delay, but ultimately
Speaker 6: he won't get the win on this.
Speaker 2: Well, so there it is rick the impact on the
Speaker 2: Trump campaign near term benefit, long term liability.
Speaker 7: Yeah, I'm not sure near term benefit. You know, I
Speaker 7: think the idea of like raising money off of these.
Speaker 2: I think raising money, can you hear me, Yeah, we
Speaker 2: got you, We're goodhead, Okay.
Speaker 7: Raising money off of these court cases? You know, I
Speaker 7: don't think it has the power that it once did
Speaker 7: early on in the process. I mean, voters in all
Speaker 7: the polls that I've seen are sort of accepting this
Speaker 7: as a process question now. And the trigger there in
Speaker 7: the process is if he's convicted. They don't seem to
Speaker 7: be that influenced by the process going on until then.
Speaker 7: So the question is when does this case ultimately break
Speaker 7: through all these debates, all these barriers, and get get
Speaker 7: on the docket so that it can actually be tried.
Speaker 7: As you talked about earlier in your program, the amazing
Speaker 7: part of a presidential campaign that I don't think anybody
Speaker 7: ever contemplated is having a criminal trial ongoing in the
Speaker 7: middle of a you know, presidential campaign, you know, with
Speaker 7: one of the presidential contestants. So I think it's hard
Speaker 7: to say whether or not this is actually going to
Speaker 7: order his benefit or not.
Speaker 2: Well, he's going to have a lot of time in court, Genie,
Speaker 2: whether he can turn that into good optics or not.
Speaker 2: I mean, I can't really imagine it, but I know
Speaker 2: that a lot of people have spent time trying to
Speaker 2: delegitimize Alvin Bragg's case. But to Rick's point, how corrosive
Speaker 2: is it going to be to see Stormy Daniels up
Speaker 2: on the stand, to see David Pecker up on the
Speaker 2: stand telling these stories.
Speaker 6: It will be corrosive. And the problem for Donald Trump
Speaker 6: here has never been a problem in the primary season.
Speaker 6: It is a problem in the general election. So, whether
Speaker 6: it's the Stormy Daniels case, Jack Smith, the documents, the
Speaker 6: reality is if this is an election which is going
Speaker 6: to be fought out in the middle in these six
Speaker 6: to seven battleground states, independence moderates are going to have
Speaker 6: a very hard time. As the Bloomberg Morning Consul poll
Speaker 6: showed voting for somebody who has been convicted of a crime,
Speaker 6: I mean, that is a huge, huge problem. You know,
Speaker 6: he can spend all he wants, he can raise money,
Speaker 6: but we still, hopefully Joe Matthew, live in a world
Speaker 6: in which the conviction of a felony by our court
Speaker 6: system is seen as something that is not attractive to
Speaker 6: people as they look to vote for a president. So
Speaker 6: it's not to say that they may love the alternative
Speaker 6: and Joe Biden so much. Yeah, but gosh, it's gonna
Speaker 6: be hard to choose somebody who's been convicted or in
Speaker 6: the midst of such tawdry details.
Speaker 5: And so I don't think they move the base.
Speaker 6: The base will stay with him, but certainly the independence
Speaker 6: and moderates are going to have second thoughts when it
Speaker 6: comes to this, all of these trials, not just the
Speaker 6: one involving Stormy Daniels.
Speaker 2: Rick. I know it's serious when Genie uses my full name, uh,
Speaker 2: and I'm gonna have probably I'll get angry tweets for this,
Speaker 2: but I have to ask, with a headline like this
Speaker 2: and what I'm hearing you both say, did Joe Biden
Speaker 2: just win the election? No?
Speaker 7: I mean, he's got a long way to go, and
Speaker 7: he's coming from behind in all our targeted states that
Speaker 7: we've been pulling at Bloomberg. So it's also predicated on
Speaker 7: his success. And part of his success is to have
Speaker 7: an ever improving economy that voters actually feel like they're
Speaker 7: getting a better economy, and he's still got to prove
Speaker 7: that he can do that.
Speaker 2: Although I would say that's one of the.
Speaker 7: More likely scenarios. But like he's got a major failure
Speaker 7: on his hands today. He's supposed to be addressing the
Speaker 7: nation an hour ago talking about why he needs border
Speaker 7: security legislation to tighten up a border that voters don't
Speaker 7: think he's doing a good job with. And if he
Speaker 7: isn't able to make the case that he can actually
Speaker 7: handle this border over the next four years, forget the
Speaker 7: fact that he's had an abject failure over the last
Speaker 7: two years, then he's still going to have a problem.
Speaker 7: I mean, elections are always about a choice, and it's
Speaker 7: between two people as imperfect as they are, you know,
Speaker 7: and all the baggage that they both carry. Sooner or later,
Speaker 7: the voters are going to have to vote. Right now,
Speaker 7: they seem dead even split.
Speaker 2: It's remarkable Rick Davis and Genie Shanzino with crack analysis here.
Speaker 2: This ruling is fresh.
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Speaker 2: We knew the ruling was coming here today. We've been
Speaker 2: discussing our anticipation there, Kaylee. The question was where this
Speaker 2: court would come down and where we go from here.
Speaker 2: Of course, the campaign is going to appeal this, but
Speaker 2: Jack Smith's premise, his case against the former president is
Speaker 2: still alive.
Speaker 8: It is, of course, the decision of this appeals court
Speaker 8: today is held for six days until February twelfth. The
Speaker 8: former president and his legal team have until that day
Speaker 8: to decide whether or not to appeal it to the
Speaker 8: Supreme Court. And then if the Supreme Court ultimately decides
Speaker 8: to hear it, decides to rule, that's when we may
Speaker 8: have a better understanding of the actual timeline when this
Speaker 8: may indeed go to trial, because remember it was supposed
Speaker 8: to be March fourth, and Judge Chutkin already last week said, okay,
Speaker 8: well that's not going to happen because we didn't have
Speaker 8: an immunity decision.
Speaker 2: Amazing. So this is where we begin with Michael Zelden,
Speaker 2: I'm glad to say is with us, the former federal prosecutor,
Speaker 2: former special council to Robert Muller while at the DOJ. Michael,
Speaker 2: it's good to see you here. We are we finally
Speaker 2: have a ruling. Nick Ackerman, the former Watergate prosecutor, was
Speaker 2: with us last hour. He suggests this in fact strengthens
Speaker 2: Jack Smith's hand, and we'll only delay the trial into
Speaker 2: summer or fall.
Speaker 9: What do you think, Well, it's unknowable. However, I think
Speaker 9: that there is a reasonable opportunity here for the Supreme
Speaker 9: Court to decline to take cert in this case. You
Speaker 9: have Judge Chutkin, the trial judge, is issuing a very
Speaker 9: comprehensive ruling. Why the immunity argument that Trump put forth
Speaker 9: holds no water This three judge bipartisan appointed panel unanimously
Speaker 9: agrees with chuck Kin and says that the former president
Speaker 9: is just like any other citizen once he is a
Speaker 9: former president. So you have four distinguished jurists saying this
Speaker 9: is not a close case. Why the Supreme Court would
Speaker 9: feel the need to intervene at all is in my
Speaker 9: mind questionable. They are risking always the view that they
Speaker 9: are putting their political fingers on scales. This is an
Speaker 9: opportunity for them to say, you know what, it's not
Speaker 9: a close case. We don't need to take sert, and
Speaker 9: this case can go forward to trial. When the trial
Speaker 9: judge sets it down. If, however, they say, you know what,
Speaker 9: it's a case of first impression and we need to
Speaker 9: hear it. Then if you look at the timeline that
Speaker 9: took in the appellate court, this could be done by
Speaker 9: the end of April, aligned for a trial in mid May,
Speaker 9: I think, without any due process implications for the former president.
Speaker 8: Okay, but how could the former president and his team
Speaker 8: potentially change that timeline, knowing that he has a tendency
Speaker 8: to always want to delay. What options does he really
Speaker 8: have here to do?
Speaker 9: So? Well, this Court of Appeals said they will not
Speaker 9: stay this ruling pending his request to the Court of
Speaker 9: Appeals in Bank the total Court to hear it. So
Speaker 9: that doesn't stay the trial. It will only be stayed
Speaker 9: until February twelfth, to allow him the time to seek
Speaker 9: consideration by the Supreme Court. The Supreme Court says yes.
Speaker 9: Then they set it down for briefing sometime later in
Speaker 9: the month of February. They said for argument in the
Speaker 9: early part or the mid part of March. They issued
Speaker 9: the decision within thirty days, as this Court of Appeals did.
Speaker 9: Then we're in May, so he really doesn't have a
Speaker 9: lot of options. It seems to me unless the Supreme
Speaker 9: Court were to take this case, say we're not going
Speaker 9: to do it on an expedited basis, and not make
Speaker 9: a decision until June, end of June, their normal calendar.
Speaker 9: The Ackerman maybe right that we're looking at a fall trial,
Speaker 9: but I'd be surprised if we have to wait that long.
Speaker 2: In that world, we could have a scenario in which, well,
Speaker 2: number one, if I guess, if it's late summer, it
Speaker 2: coincides with the Republican convention, that's something to consider the
Speaker 2: president ping ponging back and forth. But if it's fall,
Speaker 2: Michael Zelden, could we be in a situation where the
Speaker 2: trial is underway but not resolved when people vote.
Speaker 9: Well, yes, because of early voting, it may well be
Speaker 9: that there are people who can vote while this trial
Speaker 9: is in full swing. Might mean that people decide to
Speaker 9: hold off on early voting until there is a resolution.
Speaker 9: But yeah, it's theoretically possible that that could be the case.
Speaker 9: And it seems to me that those people who think
Speaker 9: that they don't need to hear the outcome of a
Speaker 9: criminal trial against the former president decide in the deciding
Speaker 9: whether to vote for or against him that's their prerogative,
Speaker 9: but it shouldn't define what the DOJ had and should
Speaker 9: do in a case like this.
Speaker 2: Can you imagine that, Yeah, that would be something.
Speaker 8: Indeed it would And I wonder if we can take
Speaker 8: you actually inside the opinion, Michael. The three judges on
Speaker 8: this panel essentially said, ultimately, this comes down to a
Speaker 8: question of checks and balances, and if the argument that
Speaker 8: President Trump were making former President Trump were making were true,
Speaker 8: that would mean that the judicial system can't check a president,
Speaker 8: that the legislative branch can't do it either, even the
Speaker 8: executive wouldn't have the power to bring charges. I just
Speaker 8: wonder what you make of the actual arguments that the
Speaker 8: judges were making here and how bulletproof they would be
Speaker 8: when taken to a Supreme Court. A very originalist court
Speaker 8: has a conservative supermajority. Three justices were appointed by former
Speaker 8: President Trump himself. Are there holes that could be poked here?
Speaker 9: I don't think in this separation of powers argument, as
Speaker 9: you articulated from the very beginning Marbury versus Madison, which
Speaker 9: gave the court's authority to look over the actions of others.
Speaker 9: This principle has allowed for judicial review. This notion of
Speaker 9: this unitary executive that has carte blanche to do what
Speaker 9: the executive wants without judicial review, I think has been
Speaker 9: rejected by this court and will continue to be rejected
Speaker 9: by this court. The other argument that this will open
Speaker 9: up a Pandora's box for future presidents who will now
Speaker 9: be afraid to act because of the possibility of criminal
Speaker 9: liability once they leave office. This Court has resoundingly said
Speaker 9: that is too hypothetical, that is not something that can
Speaker 9: factor into this. What we have here as a president
Speaker 9: who is under former president who is under indictment, and
Speaker 9: what the imperative of our society is that that person
Speaker 9: be held criminally accountable and not have that accountability be
Speaker 9: delayed for some theoretical hypothetical that Trump tries to pose
Speaker 9: tried to pose before the Court of Appeals. So I
Speaker 9: think he loses on all of the fundamental arguments that
Speaker 9: he made to the Court of Appeals. And I think
Speaker 9: it should be pretty cut and drawing for the Supreme
Speaker 9: Court to say, you know what, we don't need to
Speaker 9: resolve this. This is black letter analysis and get on
Speaker 9: with the trial, all right.
Speaker 8: Michael Zelden. We always appreciate your insight and expertise on
Speaker 8: the many legal matters we are dealing with when it
Speaker 8: comes to the former president. Michael Zeldon, of course, the
Speaker 8: former federal prosecutor and former special counsel to Robert Mueller,
Speaker 8: while at the DOJ. We want to turn now to
Speaker 8: the halls of Congress joining us now and please to say,
Speaker 8: is Republican Congressman from Georgia, Buddy Carter and Congressman, we
Speaker 8: have much to discuss with you when it comes to
Speaker 8: a border deal that may not actually reach the House
Speaker 8: floor for you to vote up or down on it,
Speaker 8: and as well as the impeachment of the Department of
Speaker 8: Homeland Security Secretary Alejandra Maiorcis. But first, if we could
Speaker 8: begin with you with the conversation we were just having
Speaker 8: with Michael Zelden. This idea that former President Trump, despite
Speaker 8: his arguments to the contrary, per of this appeals court
Speaker 8: in Washington has decided he is not immune from prosecution
Speaker 8: as a former president, to the court makes the right
Speaker 8: to call here.
Speaker 10: Well, you know, I'm not a lawyer, but I have
Speaker 10: to tell you I disagree with this and I don't
Speaker 10: think it's the right call. However, it's obvious that the
Speaker 10: President's going to ask the Supreme Court to UH to
Speaker 10: intercede on this and make a decision and from that,
Speaker 10: you know, that's why we have three separate branches of government,
Speaker 10: that's what the judicial branches to make these kind of decisions.
Speaker 2: Doesn't make you question your recent endorsement though, of the
Speaker 2: former president, Congressman.
Speaker 9: No, I'm not at all.
Speaker 10: Listen this president, President Trump can do so much better
Speaker 10: of a job than President Biden has done. You know,
Speaker 10: if you look at the chaos, if you look at
Speaker 10: the at the southern border, if you look at the
Speaker 10: economy and people are struggling. I know in my district
Speaker 10: when I'm going home, those there are the two things
Speaker 10: that they're asking me to mind about. They're asking me
Speaker 10: about the economy, and they're asking me about that border.
Speaker 10: They want to see real change. We're not seeing change
Speaker 10: here with the Biden administration. We need President Trump.
Speaker 8: But Congressman, let's talk about the southern border, because do
Speaker 8: you know not, as a member of the House, have
Speaker 8: right now an opportunity to actually do something about it,
Speaker 8: to see changes to asylum and parole realized. For changes
Speaker 8: that we have seen hard to find in decades. Now
Speaker 8: essentially presented to you, and the House says that they
Speaker 8: don't want it. Can you help explain that thinking?
Speaker 10: Well, first of all, that bill, as you so accurately
Speaker 10: have said, is dead on arrival, and there's a good
Speaker 10: reason for it. Look, we sent them two hr. Two
Speaker 10: is a great bill that addresses the situation. But let's
Speaker 10: keep in mind that this president has the authority to
Speaker 10: take care of what's going on in the border.
Speaker 11: This is something he.
Speaker 10: Created, and he is not taking care of it by
Speaker 10: executive action. If he were to put back the remain
Speaker 10: in Mexico policy, if he were to complete the construction
Speaker 10: of the wall, all of these things that he can do,
Speaker 10: he can correct this without us having to do anything
Speaker 10: here in Congress. Now, Yeah, we like to see some
Speaker 10: of these issues resolved that have been ongoing, and that
Speaker 10: is something that we're going to be working on, but
Speaker 10: not with this current deal. Let me ask you, how
Speaker 10: many laws do we have on the book where after
Speaker 10: a certain number of people violate that law, then we're
Speaker 10: going to start prosecuting people.
Speaker 9: That makes no sense whatsoever.
Speaker 2: Well, you just said a lot there, Congressman, and I'm
Speaker 2: just I'm sort of curious by this change in politics
Speaker 2: as Mitch McConnell himself put it, since Iowa, because it
Speaker 2: does seem that Donald Trump's front runner status now has
Speaker 2: changed the mood music here in Washington, d C. Some
Speaker 2: would suggest this bill actually could have passed with Republican
Speaker 2: support if it had happened toward the end of last year.
Speaker 2: But you're going to need Democrats for anything that passes Congress, right.
Speaker 2: I realized you'd like to see the president act. But
Speaker 2: if there's a legislative answer to this, it's going to
Speaker 2: have to involve Democrats, and therefore some level of compromise.
Speaker 11: No.
Speaker 10: Obviously, with the tight majority that we have in the House,
Speaker 10: with the fact that the Senator is under democratic majority,
Speaker 10: we have a Democrat in the White House. Yes, it's
Speaker 10: going to take bipartisan work. And look, I'm not opposed
Speaker 10: to that. I checked my record. You'll see that I've
Speaker 10: I've legislated and governed in a bipartisan fashion. I know
Speaker 10: how to do that, and I'm willing to do that. However,
Speaker 10: this bill that they are sitting over, this border bill,
Speaker 10: is not what my constituents want.
Speaker 11: It's not what's going to be best for this country.
Speaker 8: Can you just help explain though, how not having anything whatsoever,
Speaker 8: no changes is better than the current status quo. When
Speaker 8: you talk about how for your constituents the border is
Speaker 8: so top of mind. Why is just some change, even
Speaker 8: if not perfect, the worst alternative to doing.
Speaker 10: Nothing because of the other things that it does as well.
Speaker 10: And you know, and listen, I would beg to differ
Speaker 10: that when you've got to do something well, and you know,
Speaker 10: we could cause more harm. And I believe that this
Speaker 10: order bill would cause more harm if we were to
Speaker 10: enact it, then it would do us good. You know,
Speaker 10: I'm a healthcare professional, and as consultant nursing homes, I
Speaker 10: was always asked a question asking the question does the
Speaker 10: benefit outwey to risk? And in this case, I don't
Speaker 10: think the benefit outweighs the risk of all the other
Speaker 10: things that this brings in with it.
Speaker 2: To what extent, Congressman is Donald Trump running the House
Speaker 2: right now? This seemed to be a Republican priority until
Speaker 2: he told the speaker that it wasda No.
Speaker 10: That doesn't have anything to do with it. I represent
Speaker 10: my constituents. I vote according to what my constituents feel
Speaker 10: and the way that I'm representing them as I hope
Speaker 10: every other member of Congress does so to think that, oh,
Speaker 10: this is the heavy hand of Donald Trump, I think
Speaker 10: is erroneous.
Speaker 8: Well, as we've discussed, Congressman, you may not even have
Speaker 8: a chance to vote either way on this package if
Speaker 8: it is indeed dead on arrival in the House and
Speaker 8: never will make it to the floor. But you may
Speaker 8: have a chance today to vote as to whether or
Speaker 8: not to impeach the Homeland Security Secretary Alejandro Majorcis, your colleague.
Speaker 8: Congressman McClintock today said that he is a no vote
Speaker 8: on that and his reasoning he put in a memo
Speaker 8: today he said, the problem is that they've failed to
Speaker 8: identify an impeachable crime that Mayorcis committed. He says this
Speaker 8: is a stretch and distortion of the constitution in order
Speaker 8: to hold the administration accountable for what he says is
Speaker 8: stretching and distorting the law. Congressman, from your perspective, what
Speaker 8: high crimes or misdemeanors has the Homeland Security committed?
Speaker 10: Look, Majorcis needs to go, and I'm surprised he's lasted
Speaker 10: this long. It's bad enough the number of illegal immigrants
Speaker 10: who are coming across that border.
Speaker 11: But my opinion That's not.
Speaker 10: The worst thing. The worst thing is the drugs coming
Speaker 10: across that border, the Fentanil coming across that bard killing
Speaker 10: our citizens. Two hundred people every day in this country
Speaker 10: dying as a result of Finnyl poisoning. That to me
Speaker 10: is the reason why he should be impeached. That, to
Speaker 10: me is why I'm going to vote to impeach him.
Speaker 10: He should be ashamed and he should resign without us
Speaker 10: having to impeach him.
Speaker 2: Is that because of Alejandro Mayorcis though, or Joe Biden, Congressman.
Speaker 2: I think that's the question people have. His job is
Speaker 2: to carry out the policy of the president. Right.
Speaker 10: Well, you know, we're very fortunate in the House to
Speaker 10: have a constitutional lawyer as our speaker.
Speaker 11: And look, our lawyers.
Speaker 10: Have looked over this, and they've studied this, and they
Speaker 10: have advised us that our constitution gives the secretary and
Speaker 10: this situation authority to make changes here. If he's listening
Speaker 10: to Joe Biden, then Joe Biden should go down with him.
Speaker 10: But I'm telling you, my Orcus has got to go.
Speaker 10: If it's bad enough with the number of illegoimmigrants that
Speaker 10: are coming across that border. But the drugs that are
Speaker 10: infesting every community in America, killing two hundred people every day.
Speaker 10: If we had a plane crashing that killed two hundred people,
Speaker 10: we'd stop every airplane that were flying in this country
Speaker 10: and we figured out what was going wrong. Yet we
Speaker 10: lose two hundred people every day, defend no poisoning, and
Speaker 10: we do nothing. Are this administration does nothing?
Speaker 2: Well, Congressman, it sounds like you're a no on the border,
Speaker 2: you're a yes on impeaching Alejandro Majorcis. Where are you
Speaker 2: on a potential government shutdown in a month? Are you
Speaker 2: worried that we're going to have to do this all
Speaker 2: over again?
Speaker 11: Well, my hope is that we can avoid a shutdown.
Speaker 10: And I have voted for the CRS in the past,
Speaker 10: and I hope we don't have another short term CR.
Speaker 10: I hope this is the situation finally where we can
Speaker 10: get this done and pass a budget for the year.
Speaker 10: But I will tell you that a shutdown is not
Speaker 10: the worst thing that could happen. The worst thing that
Speaker 10: could happen would be for us to continue with this
Speaker 10: outland just spending that has got us thirty four trillion
Speaker 10: dollars in debt. You know, we're spending more money right
Speaker 10: now in the United States of America.
Speaker 5: We're spending money more faster than the speed of light.
Speaker 10: We spend two hundred and four one hundred thousand dollars
Speaker 10: every second. The speed of light's only one hundred and
Speaker 10: eighty six miles per second.
Speaker 2: Buddy Carter, we thank you for the time, sir. The
Speaker 2: Congressman from Georgia with us Kaylee. Fascinating to speak with
Speaker 2: someone who's preparing to deliver these votes because the mood
Speaker 2: has changed so many times, it's hard to tell where
Speaker 2: they're going.
Speaker 7: Here.
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Speaker 8: We just heard from the President of the United States
Speaker 8: on the border deal that he has agreed to with
Speaker 8: Senate negotiators. That seems like it may very well be
Speaker 8: dead in the Senate, not just dead un arrival in
Speaker 8: the House. The President making the case that there are
Speaker 8: many strict measures in there. The strictest we have seen
Speaker 8: proposed potentially in decades, and yet ultimately because in his words,
Speaker 8: former President Trump wants to be able to weaponize this
Speaker 8: issue rather than solve it. He does not think that
Speaker 8: it will perhaps cross.
Speaker 3: The finish line for that reason.
Speaker 2: Well, yeah, look, we've talked about sticking points a lot
Speaker 2: when it came to issues like parole and redefining asylum.
Speaker 2: These were the things that we weren't supposed to be
Speaker 2: able to figure out, and they actually did. You might
Speaker 2: not like the bill, but there are compromises on both
Speaker 2: of those, along with enhanced rights to send undocumented immigrants
Speaker 2: back to their home countries. So you wonder if it's
Speaker 2: as simple as Donald Trump leaning on this, Kayley, because
Speaker 2: this would have been considered a breakthrough it seems like
Speaker 2: in any other political world.
Speaker 8: Yes, but we know that the political climate can change
Speaker 8: very very quickly from one administration to the next, even
Speaker 8: one month to the next.
Speaker 2: Because that's really you know Davis who said it was
Speaker 2: Iowa when we were talking about Donald Trump flooring everybody
Speaker 2: in Iowa, that was the moment that the mood music changed.
Speaker 8: Yeah, Well, as we talk about how things have changed
Speaker 8: to the current administration, the former administration. We want to
Speaker 8: bring now someone who formerly served under that administration. Former
Speaker 8: Ambassador Chris Lando is with us. He served as the
Speaker 8: US Ambassador to Mexico during the Trump administration from twenty
Speaker 8: nineteen to twenty twenty one. Ambassador, thank you so much
Speaker 8: for joining us today. As we just heard President Biden outlined,
Speaker 8: there are many potentially substantive policy changes here. He said
Speaker 8: that if this were to actually become law today, the
Speaker 8: border would be shut down because there would be enough
Speaker 8: crossings happening that it would require that there are changes
Speaker 8: here to asylum and parole. Is it not enough? Why
Speaker 8: is it not enough?
Speaker 11: Thank you, Kaylee and Joe. It's a pleasure to be
Speaker 11: with you and your audience today. I mean, this bill
Speaker 11: is a travesty. I have to say that this is
Speaker 11: basically the Biden reelection bill. I mean to now after
Speaker 11: three months, specifically, specifically the parts that first of all
Speaker 11: give the president a lot of discretion in terms of
Speaker 11: even this emergon thing. The president can override that emergency
Speaker 11: provision it provides. It actually locks in these provisions where
Speaker 11: it looks to me like the president can't close the
Speaker 11: border unless there is four thousand people a day, which
Speaker 11: is one point four million a year. I mean, let's
Speaker 11: just take a step back, and the Trump administration, the
Speaker 11: border was under control. All these EO executive orders and
Speaker 11: regulations that Biden made opened the border and incentivized people
Speaker 11: to come here in numbers like we've never seen in
Speaker 11: our history. Give me a break. Now in the election year,
Speaker 11: after three years and maybe ten to twelve million people
Speaker 11: having come in illegally, now the president says he takes
Speaker 11: this seriously. I mean, he has authority. In fact, he
Speaker 11: has the obligation to detain people who are in their
Speaker 11: country illegally. He hasn't done that. I mean, this this
Speaker 11: bill is, you know, something that basically codifies Biden's disregard
Speaker 11: of the law and actually waters down current immigration law
Speaker 11: in a lot of ways. I mean, the president has
Speaker 11: the obligation again not to let any of these people in.
Speaker 11: It doesn't matter whether it's a thousand a day. It's
Speaker 11: like you give a guard the responsibility and the duty
Speaker 11: to guard your house and say nobody can come into legal,
Speaker 11: legal to my house. The guard then decides to throw
Speaker 11: a massive party in the house and invite all kinds
Speaker 11: of people in, and then you have pass a bill
Speaker 11: saying well, okay, just keep the decibel levels down to
Speaker 11: these levels and do this and that. I mean, no,
Speaker 11: the President had all the authority he needed to do this.
Speaker 11: Asylum reform is a separate kettle of fish that can
Speaker 11: be done in a regulatory capacity by the president saying
Speaker 11: if you transit through a third country where you can
Speaker 11: get asylum from the danger you claim to face, you
Speaker 11: can't claim asylum in the States. I mean, this is
Speaker 11: all stuff.
Speaker 2: So, mister ambassador, sounds to me, I'm sorry to interrupt,
Speaker 2: it sounds listening to you like this is an issue
Speaker 2: of maybe timing or maybe like there was this was
Speaker 2: a big waste of time to begin with. HR two
Speaker 2: passed the House. It sounds like that might be a
Speaker 2: little bit more in line with what you're looking for,
Speaker 2: But we need Democrats to vote on this. So was
Speaker 2: was there never a legislative answer? You're saying this should
Speaker 2: be handled by the president through executive order? Am I right?
Speaker 9: Yeah?
Speaker 11: I think you know. Frankly, a lot of the problem
Speaker 11: can be handled by the president or executive order, particularly
Speaker 11: shutting down the asylum loophole, because the asylum provisions have
Speaker 11: basically swallowed up all of immigration law. Everybody knows this.
Speaker 11: I mean that ninety.
Speaker 2: Three defined asylum. We didn't think we'd ever see that.
Speaker 2: Is that not a good part of this proposal. This
Speaker 2: is something that a couple of months ago we were
Speaker 2: told would never happen.
Speaker 11: You don't need a legislative fixers on. The current asylum
Speaker 11: law is actually fine, and it says you have to
Speaker 11: have a reasonable fear of persecution based on certain narrow criteria.
Speaker 11: It's all the regulatory framework that's been put on top
Speaker 11: of that, and the procedures that allow people to come
Speaker 11: in here, say some magic words, and then be basically told, okay,
Speaker 11: see you in ten years that you're asylum hearing. I mean,
Speaker 11: that can't possibly be the way it works, because that's
Speaker 11: a magnet for people to make bogus asylum claims. That's
Speaker 11: what we have now. I mean they coming up at
Speaker 11: the border and surrendering themselves to make asylum claims.
Speaker 8: I'd like to ask you while we have just a
Speaker 8: minute or two left with you, mister former ambassador, knowing
Speaker 8: that you aren't just the former ambassador to Mexico but
Speaker 8: also an attorney. We separately got news related to former
Speaker 8: President Trump today from the Appeals Court here in Washington
Speaker 8: that he is not, despite his claims to the contrary,
Speaker 8: immune from prosecution in the case brought by Jack Smith
Speaker 8: as a former president. They say that he is not
Speaker 8: now former President Trump. He is citizen Trump and therefore
Speaker 8: will be treated accordingly. What do you make of this ruling.
Speaker 11: There's two issues here. The first is whether former presidents
Speaker 11: have any immunity at all for any kinds of action,
Speaker 11: for a drone strike they may order, for any kind
Speaker 11: of thing. The district court said no, that basically any
Speaker 11: president can be put on criminal trial by anybody for
Speaker 11: anything that they did during their administration. The appeals court
Speaker 11: had a narrow ruling. What they said is that the
Speaker 11: specific indictments against President Trump just are not things that
Speaker 11: are within the president's purview at all for his official actions.
Speaker 11: I think, frankly that seems like a very sketchy decision
Speaker 11: for me, that the appeals court is a matter of law,
Speaker 11: would say that all of the allegations in the indictments
Speaker 11: are not even plausibly in the president's purview. So I
Speaker 11: think this is a very flawed decision from my quick
Speaker 11: look at it. It's a fifty seven page opinion that
Speaker 11: just came down this morning. Yeah, but it seems to
Speaker 11: me a very aggressive opinion limiting presidential immunity.
Speaker 2: Mister ambassador, We appreciate your joining us. Thanks for listening
Speaker 2: to the Balance of Power podcast. Make sure to subscribe
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