Speaker 1: Bloomberg Audio Studios, podcasts, radio news.
Speaker 2: Supreme Court ruling here partially back to Trump on immunity
Speaker 2: and the High Court immunity ruling likely to further delay
Speaker 2: Trump trial. So we'll see how this plays. That will
Speaker 2: have more reporting coming up for but certainly a significant
Speaker 2: ruling here we've been expecting from this Supreme Court and
Speaker 2: we got it today. So again another piece of presumably
Speaker 2: good news for former President Donald Trump. Let's get some
Speaker 2: more analysis here. We bring on Howard Krent. He's a
Speaker 2: professor of law at Chicago Kent College of Law. Harold,
Speaker 2: we just had a few minutes to kind of look
Speaker 2: at this ruling. It seems like I guess a partial
Speaker 2: victory for former President Trump, but that may be all
Speaker 2: that he needs. Any early interpretation from you, Harold.
Speaker 3: Yeah, I think that's right. I mean, the court split
Speaker 3: the baby in a sense by saying that there was
Speaker 3: going to be absolute immunity for some kind of presidential acts,
Speaker 3: those acts that fall within the court of his executive powers,
Speaker 3: and for other acts it's presumptive immunity, which means that
Speaker 3: the lower court will have to go through the indictment
Speaker 3: and the trial and sort of separate out all the acts,
Speaker 3: so that some of the pro electionary re election acts
Speaker 3: in terms of how Trump tried to position himself to
Speaker 3: get reelected, that presumably would fall and not be entitled
Speaker 3: to absolute immunity. But his discussions with the Attorney General
Speaker 3: would certainly qualify, and with the vice president would qualify
Speaker 3: for absolute immunity. So this will be a contextual analysis.
Speaker 3: But that means delay, It means time, and so there
Speaker 3: will be very likely no kind of trial until after
Speaker 3: the election.
Speaker 4: When it goes back to the lower court. How does
Speaker 4: the lower court figure it out? What kind of guidance
Speaker 4: do they have to have to see, Okay, this qualifies
Speaker 4: as doesn't qualify? Where do they get that clarity?
Speaker 3: It's going to be in the opinion. There is very
Speaker 3: little precedent on this, but the court's opinion is more
Speaker 3: detailed than we expected, and so the district court will
Speaker 3: have to thumb through and sort of get clues and hints.
Speaker 3: And the court did give a couple of examples in
Speaker 3: the opinion about what it considered it to be absolutely
Speaker 3: worthy of absolute immunity and what it didn't. It's at
Speaker 3: first blush. Obviously, we all need to read it more carefully,
Speaker 3: but at first blush it is a reasonable decision. The
Speaker 3: court tackled with it. Obviously, there still is a kind
Speaker 3: of six ' three split as we've seen in other contexts.
Speaker 3: But it's not absolute community. It's not a complete insulation
Speaker 3: of the president from the criminal process. It's not putting
Speaker 3: the president above the law. It's taking a measured step
Speaker 3: and trying to say which acts are actually incredibly important
Speaker 3: for the president not to have a fear of criminal
Speaker 3: penalty for, and which acts maybe have a presumptive immunity for.
Speaker 3: But it can be found that if it's a personal
Speaker 3: act re election, personal vendetta, losing it a poker game,
Speaker 3: then he can be subject to the criminal sanction.
Speaker 2: Harold, if you know with the Supreme Court, I guess
Speaker 2: presumably sending this immunity case back to the lower court
Speaker 2: give us a sense of timing when how does this
Speaker 2: play out? When would we get more clarification on this,
Speaker 2: because I guess that that's really key as it relates
Speaker 2: to November fifth and then you know into January for
Speaker 2: swearing in.
Speaker 3: Yeah, I think that the lower court judge should be
Speaker 3: able to make a good faith stab at what acts
Speaker 3: for which President Trump should be absolute immune and which
Speaker 3: not within you know, six to eight weeks, but that
Speaker 3: also will be subject to you know, elocatory appeal. And
Speaker 3: so the question is whether the DC Circuit then would
Speaker 3: want to stop any kind of trial momentum to consider
Speaker 3: the ambit of the immunity that the trial court finally
Speaker 3: decides on. So because of that potentiality, it's extremely rare,
Speaker 3: as I mentioned, I mean, it's extremely unlikely that this
Speaker 3: could ever be held for a trial before the election,
Speaker 3: but the immunity decision should be reached well before that.
Speaker 3: So the extent that that's relevant, I'm not sure. It
Speaker 3: is that the lower court should be able to make
Speaker 3: the first stab at for which acts the president is
Speaker 3: immune and for which not, and therefore obviously that the
Speaker 3: criminal trial can proceed on those areas for which the
Speaker 3: president does not have an absolute immunity, such as possibly
Speaker 3: goading the protesters on January sixth, or maybe even for
Speaker 3: the fake elector scheme as well.
Speaker 4: So if we just look forward to after November, can
Speaker 4: if President Trump wins the White House again, can he
Speaker 4: give himself immunity from this case? Could President Biden if
Speaker 4: he gets re elected?
Speaker 1: Yeah?
Speaker 3: So President Trump would have two options if he's reelected.
Speaker 3: The first would be to part in himself, which has
Speaker 3: been discussed and we know that's never happened in history,
Speaker 3: but the Constitution is silent on it, so he might
Speaker 3: just try. The second is he could just order his
Speaker 3: Attorney general to drop the prosecution. And that's probably the
Speaker 3: more I would advise him to do the latter, because
Speaker 3: that's more tried and true, and so he does have
Speaker 3: that power, and he could just say stop the stop
Speaker 3: the wheels. Now, of course, President Trump would still be
Speaker 3: criminally possibly liable for the Georgia case, which is pending,
Speaker 3: and certainly we have no effect on the New York
Speaker 3: case for which he will be senced in a couple
Speaker 3: of weeks.
Speaker 2: What do we expect to hear from the special prosecutor
Speaker 2: in this case?
Speaker 5: Do you expect to hear.
Speaker 2: Something today or will they take days to kind of
Speaker 2: peruse and analyze this ruling.
Speaker 3: Oh, you know, that's a pr issue, you know, in
Speaker 3: terms of what they'll say, I mean, they'll you know,
Speaker 3: if I were advising Jack Smith, I might say that
Speaker 3: you know that the Supreme Court has struck the line
Speaker 3: of we're immunity issue. We believe that most of our
Speaker 3: indictment is can continue, and we will work with to
Speaker 3: ensure as efficacious and speedy of a hearing on that
Speaker 3: issue before the district court. And we hope to continue
Speaker 3: the case that's been delayed for too long as quickly
Speaker 3: as possible.
Speaker 4: Again, to update everybody, the Supreme Court partially backs Trump
Speaker 4: on immunity, delaying the trial, saying that he has some
Speaker 4: immunity from criminal charges for trying to reverse the twenty
Speaker 4: twenty election results. But the trial probably then won't happen
Speaker 4: before the November election. The Justice has voted six '
Speaker 4: three along ideological lines, and would they issue some guidelines
Speaker 4: as to what constitutes or not constitutes immunity to then
Speaker 4: push back to the lower courts? Professor, what have we
Speaker 4: learned then about the Supreme Court? What have we learned
Speaker 4: through this decision in terms of how it may impact
Speaker 4: an election?
Speaker 3: Well, I mean, I think that this pundents don't know
Speaker 3: whether the New York felony trial is going to affect
Speaker 3: the election at all. I've seen polls going both ways,
Speaker 3: and all we know now is that the centerpiece of
Speaker 3: the case against President Trump, the fake elector scheme and
Speaker 3: the insurrection on January sixth. That will not go to
Speaker 3: a jury, and to the extent that that would become
Speaker 3: critical in the election, who knows, but we're not going
Speaker 3: to see that played out before a jury before the election.
Speaker 2: Tell us about that lower court that this is now
Speaker 2: going to go back to professor what do we know
Speaker 2: about that court and kind of how they interpret the law.
Speaker 3: So this is the court in the DC District Court
Speaker 3: and Judge Hutkin will be overseeing this case, So this
Speaker 3: will not be a jury determination. This first cut will
Speaker 3: be her efforts to apply the guidance that the Supreme
Speaker 3: Court just handed down to determine what can go forward
Speaker 3: in terms of the essence of the Special Prosecutor's case
Speaker 3: against former President Trump, and so this can go relatively efficaciously.
Speaker 3: The issues have been argued before, but not under this
Speaker 3: specific framework that the Supreme Court has just delivered. So
Speaker 3: I would expect there to be by hearing before the judges.
Speaker 3: And there's no complication as in the Florida Documents case
Speaker 3: about anything being under seal. The indictment's been handed down,
Speaker 3: and the parties can parse through the indictment and decide
Speaker 3: what has to go and what can stay and what
Speaker 3: the theories are and their complications, and so it's not
Speaker 3: a matter of simply taking a red pencil and marking
Speaker 3: things out, because so much is connected. I mean, the
Speaker 3: president's comments to the vice president in part reflex and
Speaker 3: official action of the presidency, but in part may reflect
Speaker 3: his effort to get re elected. So everything may have
Speaker 3: both the sort of the private and the official combined,
Speaker 3: and so the parties will be arguing which predominates and why,
Speaker 3: and so Judge Hutkin then has to take those arguments
Speaker 3: and make a determination ultimately about which part of the
Speaker 3: indictment can go forward.
Speaker 4: In relation to the argument that presidents need total immunity
Speaker 4: because of stuff in office that they do, or whether
Speaker 4: that's sort of dealing with the military drone strikes, for example,
Speaker 4: does this clarify that part of it?
Speaker 3: It does. I mean, I think that the argument that
Speaker 3: I mean, obviously their listenership should remember that this Pingport
Speaker 3: earlier held that the president is absolutely immune from any
Speaker 3: kind of civil liability for drone strikes, from anything else.
Speaker 3: In the theory that the president cannot be detracted from
Speaker 3: his or her efforts to be an effective presidency by
Speaker 3: the fear of a lawsuit afterwards, and so the court
Speaker 3: has held that for about twenty five years now. And
Speaker 3: so this is actually in some ways saying that even
Speaker 3: though that we have civil liability, criminal liability can also
Speaker 3: be to terms or disincentive from being an aggressive, efficient
Speaker 3: exercise of presidency. But nonetheless the criminal law is so
Speaker 3: important that at times it has to exceed or i
Speaker 3: should say trump of what the president otherwise would do.
Speaker 3: And again, if the president's acting in a person and
Speaker 3: the easy answer, right is, if you're upset at a
Speaker 3: poker game and assault someone that's not there's no reason
Speaker 3: for the president to be immune from the criminal process.
Speaker 3: Or if there's an assault in the hallways of the
Speaker 3: White House, of course there's no reason as well. But
Speaker 3: there's obviously many, many complicated scenarios that one could draw.
Speaker 3: The drone strikes, the president would be absolutely immune both
Speaker 3: criminally answerably for those as long as they're within the
Speaker 3: outer ambit of his official functions. But again, there's going
Speaker 3: to be hard line drawing cases to make about what
Speaker 3: constitutes an official act of the presidency and what is
Speaker 3: a sort of private or unofficial act. And that's what
Speaker 3: Judge Chushkin will have to face now in the coming weeks.
Speaker 2: All right, very good, Harold, thank you so much for
Speaker 2: joining us. How we're Crent, professor of Law at the
Speaker 2: Chicago Kent College of Law, joining us from Chicago.
Speaker 5: Viszoom.
Speaker 2: We want to back down to Washington, d C. Joe
Speaker 2: Matthew joins us once again co host a Balance of Power. Joe,
Speaker 2: We've had a few minutes to kind of digest what's
Speaker 2: happening here. What's the feeling within the Beltway over the
Speaker 2: last several minutes with this ruling.
Speaker 6: Well, I mean to be honest, most people inside the
Speaker 6: Beltway haven't finished reading this yet. It's one hundred and
Speaker 6: nineteen pages long, but there are portions of this ruling
Speaker 6: that jump off the page as the Chief Justice rites
Speaker 6: as for a presidential's unofficial acts, this is a theme
Speaker 6: now this hour, right as we get our heads around
Speaker 6: what they're really ruling on. There is no immunity that's
Speaker 6: made clear here determining. He goes on to write, whether
Speaker 6: a former president is entitled to immunity from a particular
Speaker 6: prosecution requires applying the principles that are laid out here
Speaker 6: with regard to.
Speaker 5: Conduct at issue.
Speaker 6: Remember we said that this may have to go back
Speaker 6: to the lower court to determine which acts are considered
Speaker 6: official in which are not. He writes, the first step
Speaker 6: is to distinguish his official from unofficial actions. No court
Speaker 6: has thus far considered how to draw that distinction in
Speaker 6: general or with respect to the conduct alleged in particular.
Speaker 6: So we have a lot to learn here. And these
Speaker 6: justices just took a long time. This has been waiting
Speaker 6: around for months with a very important case in terms
Speaker 6: of Jack Smith's January sixth case on hold for all
Speaker 6: of this, and it's going to take a lot longer
Speaker 6: for the Appeals Court to get its head around this
Speaker 6: and do the work that the Supreme Court is asking.
Speaker 6: The idea of a January sixth trial before the election
Speaker 6: is feeling pretty ridiculous at the moment.
Speaker 7: All right.
Speaker 4: Also joining us Rick Davis Bloomberg Politics contributor and partner
Speaker 4: at Stone Court Capital, standing by here with us. Hey, Rick,
Speaker 4: we see from a truth social President Trump tweeting big
Speaker 4: win for our constitution and democracy, Proud to be an American.
Speaker 4: We're already sort of seeing the spin the same question
Speaker 4: that Paul just asked, what's going to be the spin
Speaker 4: around this?
Speaker 8: Now?
Speaker 7: Yeah? I think that this could go either way spin wise.
Speaker 8: I mean, obviously Trump's going to lean in and say, look,
Speaker 8: you know, it's obvious that I've got immunity that they
Speaker 8: give me this blanket coverage. And there's some implications within
Speaker 8: the early reading of the ruling that he can get
Speaker 8: away with that argument.
Speaker 7: Pretty well.
Speaker 8: No one's going to tell him no until it goes
Speaker 8: back to Judge Chuckkin and she Pin, you know, opines
Speaker 8: on whether or not the case they have before them
Speaker 8: is the acts of a president or the acts of
Speaker 8: a private citizen. And so I would say, on the
Speaker 8: other hand, and I'm surprised that Democrats aren't out more
Speaker 8: forcefully right now going after this, but they've been very
Speaker 8: laissez faire on their approach to all things legal when
Speaker 8: it comes to Donald Trump. But you know, I would
Speaker 8: certainly be looking at this as a positive from the
Speaker 8: Democratic point of view and saying, no, absolutely, he's going
Speaker 8: to be held account and all indications were that these
Speaker 8: acts that were performed that are under indictment by the
Speaker 8: Justice Department were unofficial private citizen actions and that they
Speaker 8: should be held accountable in court of law.
Speaker 2: Joe, have we heard from the prosecutor mister Stone about
Speaker 2: how he may if there was like a split decision
Speaker 2: like it seems like we're getting today, that he would
Speaker 2: still pursue aggressively those which are not subject to immunity.
Speaker 2: Do we know where he stands.
Speaker 5: In terms of Jack Smith Jack Smith?
Speaker 6: Yes, No, I don't think he's been going there in public,
Speaker 6: he says very little. You know, that's kind of part
Speaker 6: of a job here, And he was of course holding
Speaker 6: forth that all of the four charges would see the
Speaker 6: light of day. We got the dissent from Justice Soto Mayora.
Speaker 6: By the way, if you want to talk about the
Speaker 6: other side of this for a moment, she says, the
Speaker 6: president is now a king above the law. Quote, let
Speaker 6: the president violate the law, let him exploit the trappings
Speaker 6: of his office for personal gain. Let him use his
Speaker 6: official power for evil deeds, she writes, because if he
Speaker 6: knew that he may one day face liability for breaking
Speaker 6: the law, he might not be as bold and fearless
Speaker 6: as we would like him to be.
Speaker 5: That is the majority's message today.
Speaker 6: Obviously some real discontent here in another six y three ruling.
Speaker 4: Yeah, no doubt. Yeah, I'm scrolling through as well. This
Speaker 4: is quite a lot one hundred and nineteen pages as
Speaker 4: you were just mentioning, Hey, Rick, what would be the
Speaker 4: right way for the Republican Party to move on this?
Speaker 4: I mean, we know how Trump's going to go with this.
Speaker 4: You mentioned how the Democrats have been hesitant to embrace
Speaker 4: court rulings. But what's the right way for the GOP
Speaker 4: to move on this case?
Speaker 8: Yeah? Look, I think that Trump will do his victory
Speaker 8: lap today on his social media, and I think try
Speaker 8: to raise money from it, because he'll say, oh, these
Speaker 8: Democrats of Washington are using the Justice Department to just
Speaker 8: try and keep me from being president. This is another
Speaker 8: example of that, backed up by the Supreme Court ruling.
Speaker 8: They knew I had immunity and they did it anyway.
Speaker 8: And then I think what he'll try to convince voters
Speaker 8: of is that this ends his exposure to the Justice
Speaker 8: Department prope that Jack Smith is on a wild goose chase,
Speaker 8: and that ultimately Lee he'll be freative charges.
Speaker 7: And I think, you know, the reality is in the
Speaker 7: lesson until this.
Speaker 8: Case really starts to take fold, the time and the
Speaker 8: clock is running out on them and Donald Trump. This
Speaker 8: is the big gamble for Donald Trump if he's elected president,
Speaker 8: he just makes this case go away. He just calls
Speaker 8: whoever he appoints his attorney general and say end it.
Speaker 8: And so it's all a gamble for Donald Trump on
Speaker 8: whether or not he can win the president see.
Speaker 7: And of course after that debate, he's feeling pretty good
Speaker 7: about it.
Speaker 8: So I think that right now the Republicans are going
Speaker 8: to try and one do a victor laughin, and two
Speaker 8: make the case that this is just a matter of
Speaker 8: legal fare, that the administration is coming after him and
Speaker 8: that it's unfair.
Speaker 2: So, Joe, is there any expectation that we'll hear from
Speaker 2: the Biden administration to you the Biden White House today
Speaker 2: on the Supreme Court ruling?
Speaker 6: Hard to tell if we'll hear from the White House
Speaker 6: or the campaign I suspect will the latter. Whether the
Speaker 6: administration wants to weigh in on this, that might have
Speaker 6: to wait till a briefing with Karine Jean Pierre. It's
Speaker 6: always unclear exactly what their posture is going to be
Speaker 6: on these types of things. But you better believe the
Speaker 6: campaign war room is cranking into high gear, and it
Speaker 6: was already run and hot after that debate on Thursday night,
Speaker 6: and a lot of tough conversations, a lot of tough
Speaker 6: interviews over the weekend as they try to tamp down
Speaker 6: this whole conversation about finding a new candidate between now
Speaker 6: and the Democratic Convention in August, as you make your
Speaker 6: way to the bottom of the Chief Justices ruling. By
Speaker 6: the way, he really sums it all up, looking at
Speaker 6: the balance of power here in Washington, the president's conduct.
Speaker 6: Congress may not criminalize the president's conduct and carrying out
Speaker 6: the responsibilities of the executive branch. He refers to this
Speaker 6: system of separated powers designed by the Framers, demanding an energetic,
Speaker 6: independent executive.
Speaker 5: This is something that you might hear repeated.
Speaker 6: The President therefore, may not be prosecuted for exercising his
Speaker 6: core constitutional powers, entitled at a minimum to a presumptive
Speaker 6: immune from prosecution for all of his official acts. Remember
Speaker 6: this applies to every president after this as well. The
Speaker 6: immunity applies equally, he writes to all occupants of the
Speaker 6: Oval office, regardless of politics, policy, or party. This is
Speaker 6: something we have to remind ourselves. Is bigger than Donald Trump.
Speaker 1: Yes, absolutely.
Speaker 4: And then just if you're just joining us the news
Speaker 4: of the morning, the US Supreme Court ruling that Donald
Speaker 4: Trump has some immunity from criminal charges for trying to
Speaker 4: overturn the twenty twenty election results. The case back goes
Speaker 4: back down to the lower court and the justice is
Speaker 4: voted six y three along ideological lines. So questionably becomes
Speaker 4: what actions does Trump to our presidents take that are
Speaker 4: or are not protected with immunity? Rick, Where does this
Speaker 4: then leave other cases that are against Trump in relation
Speaker 4: to immunity. I'm thinking specifically the Georgia case.
Speaker 8: Yeah, the Georgia case is a little bit more complex
Speaker 8: because it's state law that's being duplicated here, and so
Speaker 8: whether or not this presidential they extends to the state
Speaker 8: is going to be a similar question as to Jack Smith.
Speaker 8: In other words, if some of these acts are seen
Speaker 8: as private acts, you know, Donald Trump picking up.
Speaker 7: The phone and trying to fish for votes with the.
Speaker 8: State officials in Georgia, then that prosecution can go forward
Speaker 8: and it is vulnerable to Donald Trump becoming president and
Speaker 8: unleashing is just this apartment on killing the case. This
Speaker 8: case would go forward even if Donald Trump was president.
Speaker 7: So my sense is that if Jack Smith finds.
Speaker 8: That some of these charges or Judge Chuck and really
Speaker 8: finds that some of these charges are done in his
Speaker 8: private capacity, that that will be a signal to the
Speaker 8: Georgia case that they can go forward with those same
Speaker 8: kind of charges, knowing that the FEDS have already decided
Speaker 8: that these are personal functions of Donald Trump and not
Speaker 8: the functions of the presidency.
Speaker 4: All Right, guys, thanks a lot, We really appreciate it.
Speaker 4: It's been quite a more learning. Again. The US Supreme
Speaker 4: Court ruling and Donald Trump has some immunity from criminal
Speaker 4: charges for trying to overturn the twenty twenty election results
Speaker 4: is going back now to the lower court. Rick Davis,
Speaker 4: Bloomberg political contributor and partner at Stone Court Capital. Also
Speaker 4: Joe Matthew Cuinger, a balance of power, both of you.
Speaker 4: Thank you so very much.
Speaker 2: Again, the news of the day is clearly the US
Speaker 2: Supreme Court rule that Donald Trump has some immunity from
Speaker 2: criminal charges for trying to reverse the twenty twenty election results,
Speaker 2: all but ensuring that a trial won't happen before the
Speaker 2: November election. Let's get some more reporting on that. We
Speaker 2: go to Zoe Tilman, senior illegal reporter for Bloomberg News. Zoe,
Speaker 2: what are we learning from this? One hundred and nineteen
Speaker 2: page ruling.
Speaker 1: You know, I think the big picture of what we're
Speaker 1: learning is that we're not learning all that much. That
Speaker 1: the case is going to back down, going back down
Speaker 1: to a district court judge in Washington to really go
Speaker 1: through the indictment piece by piece to determine what in
Speaker 1: there is a core constitutional power of the president and
Speaker 1: entitled to immunity against secution, and what is unofficial or
Speaker 1: private conduct that he can still that Donald Trump can
Speaker 1: still be prosecuted for. You know, the court said, the
Speaker 1: majority said definitively that his communications with Justice Department officials
Speaker 1: after the twenty twenty election were definitely off the table.
Speaker 1: That they made clear. But everything else, you know, is
Speaker 1: still up for litigation. That includes the conspiracy to put
Speaker 1: pro Trump electors in battleground states to have them sign
Speaker 1: false certifications, you know, other efforts to overturn the election.
Speaker 1: All of that is is still potentially on the table,
Speaker 1: but it's going to take a while for that to
Speaker 1: get sorted out.
Speaker 4: Now, can you go through what we may or may
Speaker 4: not know about what constitutes official or unofficial actions?
Speaker 1: Yeah, you know, what they said is that, you know
Speaker 1: what the core constitutional functions of a president of the officeholder,
Speaker 1: and that includes his communications within the executive branch. And
Speaker 1: that's why, you know, the majority said that talking with
Speaker 1: the Justice Department, with Justice Department officials about what they
Speaker 1: could or could not do on his behalf after the election,
Speaker 1: that that was clearly within the parameters a core constitutional function.
Speaker 1: But other types of communications, even the Court said with
Speaker 1: his vice president at the time, Mike Pence, they didn't
Speaker 1: say definitely that all of those communications would fall within
Speaker 1: that kind of core constitutional power.
Speaker 2: Right now, I also want to bring in Nick Ackerman,
Speaker 2: former assistant special Watergate prosecutor. Nick, thanks so much for
Speaker 2: joining us here. I love to get based upon all
Speaker 2: your years of experience, your takeaway from this Supreme Court
Speaker 2: ruling this morning.
Speaker 9: Well, to me, I guess I get a little bit
Speaker 9: angry because there really is nothing here that is an
Speaker 9: official act, even calls to the Justice Department. I have
Speaker 9: not read the opinion yet because I have had so
Speaker 9: many people have been asking me questions about it. But
Speaker 9: I need to read the opinion. But it seems to
Speaker 9: me that every thing in there, including making trying to
Speaker 9: get the Justice Department and putting in an Attorney general
Speaker 9: who's going to come up with a phony document to
Speaker 9: send out to the battleground states saying that there was
Speaker 9: fraud in the election when there was not fraud in
Speaker 9: the election. Doesn't seem to me to be within the
Speaker 9: official acts of the President of the United States or
Speaker 9: part of his constitutional duties. Everything that is in this
Speaker 9: indictment is alleged is something that is not part of
Speaker 9: his duties. It certainly isn't part of a president's duties
Speaker 9: to run for reelection, and moreover, it's not part of
Speaker 9: his duties to try and fix that election and try
Speaker 9: and maintain his ability to stay in power through false
Speaker 9: and fraudulent means, which is what this indictment alleges. What
Speaker 9: I find troubling about this whole thing is that it
Speaker 9: is so obvious as to the fact that what is
Speaker 9: alleged here are not official acts. To begin with that,
Speaker 9: I don't think it should take Judge Chutkin, who is
Speaker 9: a district court judge overseeing this, more than a few
Speaker 9: minutes to determine that these are all official acts. Now,
Speaker 9: I haven't read the opinion, but is she supposed to
Speaker 9: have a hearing on this? All of this stuff, most
Speaker 9: of it we know already because we've heard it before
Speaker 9: the January sixth Committee, and we know it's not official acts.
Speaker 9: So what they said is not really of any great moment,
Speaker 9: because of course, a president who is doing his official
Speaker 9: acts that are set forth in the Constitution, you can't
Speaker 9: be accused of a crime for doing that. But that's
Speaker 9: not what this indictment is about.
Speaker 4: But so Nick, it feels like, then what you're saying
Speaker 4: is the distinction of what is official aka then protected
Speaker 4: by immunity, and what's unofficial which is not isn't clear
Speaker 4: at all. And I appreciate that you haven't read the opinion,
Speaker 4: but the going to a lower court and then them
Speaker 4: having to decide that based on guidance from the Supreme
Speaker 4: Court seems very complicated.
Speaker 9: I don't think it's that complicated, no, okay.
Speaker 4: But you have a different opinion than other people's, So
Speaker 4: from that perspective, it does seem like it's complicated.
Speaker 9: Well, I don't see how it's all complicated. The fact
Speaker 9: that you come up with phony electors. What's so complicated
Speaker 9: about that? The fact that you lie about the election,
Speaker 9: that you put in false documents before a federal district
Speaker 9: court judge in Georgia about their being fraud in the election.
Speaker 9: To me, none of that is very complicated. Of course,
Speaker 9: that's criminal, and it can be charged as criminal. They're
Speaker 9: not charging him. First of all, he had no business
Speaker 9: sticking his nose into anything in the Georgia process. It's
Speaker 9: not the job of a US president to have anything
Speaker 9: to do with the presidential election or how that election
Speaker 9: is run. That is not within the purview of his
Speaker 9: official acts. And that goes for everything else he did
Speaker 9: in the other battleground states. So I don't quite understand
Speaker 9: what the Supreme Court could even conceive of as being
Speaker 9: an official act that's charged in this indictment.
Speaker 2: Zoe, what do we expect to hear from the Biden
Speaker 2: White House, the Biden campaign as it relates to this ruling.
Speaker 1: You know, so far, the White House has been quite
Speaker 1: careful when talking about this case. It's depending criminal matter.
Speaker 1: Everything is alleged until a jury determines, you know, whether
Speaker 1: he is guilty or not. And I think the President
Speaker 1: and the White House have been quite careful not to
Speaker 1: be seen as intruding on the process with all until
Speaker 1: it's you know, fully adjudicated. So, you know, I would
Speaker 1: expect the same kind of caution and care in anything
Speaker 1: they might say about this decision and the next steps,
Speaker 1: because the court has really left so much unresolved. You know,
Speaker 1: it's the Justice Department's policy generally to not comment publicly
Speaker 1: while a case is pending, So I don't think we're
Speaker 1: going to expect any kind of robust commentary, at least
Speaker 1: from official channels on this for now.
Speaker 4: Nick, do you feel like that if you are bringing
Speaker 4: this sort of case A fair question, but you're a
Speaker 4: special prosecutor for Watergate, right, would you consider how it
Speaker 4: was delivered to the courts this particular case. Was it
Speaker 4: framed in the correct way to get the right message
Speaker 4: across mentioning Georgia. I mean, the case had nothing to
Speaker 4: do with Georgia, So everything that we're talking about maybe true,
Speaker 4: but with Georgia that wasn't. The case was specifically with
Speaker 4: twenty twenty and specifically in a January sixth issue. So
Speaker 4: do you think the case and not dealing with insurrection,
Speaker 4: for example, was a problem.
Speaker 9: No, it's not just The indictment is not just a
Speaker 9: January sixth issue. It's also an issue that relates to
Speaker 9: the entire effort to stop the peaceful transfer of power.
Speaker 9: It goes back to Georgia, it goes back to what
Speaker 9: he did in the battleground states. This is not just
Speaker 9: relating to January sixth and the January sixth matter. All
Speaker 9: relates to trying to underline the peaceful transfer power and
Speaker 9: January sixth and trying to get the vice president to
Speaker 9: basically take what our fraudulent electors and put those in
Speaker 9: place or send the vote back to the battleground states.
Speaker 9: I mean, this is all outside of what a president
Speaker 9: is supposed to do and outside of his absolute normal acts.
Speaker 2: Zoe, what's the expectation here? Is there enough left outside
Speaker 2: of the immunity for the prosecutors to continue this case?
Speaker 1: That's what they will certainly argue. You know, the court
Speaker 1: certainly left enough in the indictment up for debate before
Speaker 1: the district court.
Speaker 9: Dutch.
Speaker 1: You know, I think it's worth noting that whatever Judge
Speaker 1: Chuckkin in Washington decides after this next round of litigation
Speaker 1: could then potentially be appealed again and go back up
Speaker 1: to the appeals court process even reach the Supreme Court
Speaker 1: again before there's any kind of trial schedule. So that's why,
Speaker 1: you know, when we talk about this being a sort
Speaker 1: of tactical win for Donald Trump in the sense that
Speaker 1: it's very unlikely anything gets to trial before the election.
Speaker 1: You know, but the court sort of said, you know,
Speaker 1: even things like conversations between the president and the vice
Speaker 1: president might not be covered by immunity in the end,
Speaker 1: depending on what they were discussing, where it was really
Speaker 1: about the functions of the executive manchi as opposed to
Speaker 1: you know, the vice presidental rational process where president doesn't
Speaker 1: have any direct power to decide what should and should
Speaker 1: not happen. And then you know, the state elector's component
Speaker 1: of the indictment is you know, up for debate and
Speaker 1: justice Barrett and the concurring opinion said that she thought
Speaker 1: she didn't see how immunity would apply there in terms
Speaker 1: of any role that the president plays in the state
Speaker 1: election process. So there is just still a lot in
Speaker 1: the indictment that remains unresolved, even as you know, it
Speaker 1: is a positive opinion for Trump in terms of time.
Speaker 4: So if you're just joining us, this is what's happening.
Speaker 4: The US Supreme Court rule that Donald Trump has some
Speaker 4: immunity from criminal charges for trying to reverse the twenty
Speaker 4: twenty election results. The vote was six ' three. Now
Speaker 4: goes back to the lower court, and we're talking to
Speaker 4: Nick Ackerman, former assistant special Watergate prosecutor, and Zoe Tilman,
Speaker 4: senior legal reporter, are still with us. Nick, going back
Speaker 4: to the makeup of the court, is there a case
Speaker 4: that some justices could have recused themselves or should have?
Speaker 9: Of course, I mean there's two justices that obviously should
Speaker 9: have recused themselves, Justice Thomas and Justice Alito. Justice Alito
Speaker 9: made his opinion known about the January sixth insurrection by
Speaker 9: flying the flag upside down immediately after that insurrection, adjoining
Speaker 9: the insurrectionists, and Justice Thomas's wife was intricately involved in
Speaker 9: trying to push forward this situation so that Trump could
Speaker 9: stay in power. So yeah, those two justices absolutely should
Speaker 9: have recused themselves. All I can say is this feels
Speaker 9: so much different than the Supreme Court in nineteen seventy four,
Speaker 9: which was also comprised of justices that were appointed by
Speaker 9: Republican presidents, who wound up in an eight to zero
Speaker 9: decision ordering Nixon to turn over his tapes. There was
Speaker 9: never any question about delaying the matter the Supreme Court. There,
Speaker 9: Unlike the Supreme Court bypassed the appellate court, the DC Circuit,
Speaker 9: and let this go directly the Supreme Court. It was
Speaker 9: done in a matter of months. Everything was expedited here.
Speaker 9: This was dragged out as much as possible. Even though
Speaker 9: the Special counsul asked for immediate review to the Supreme Court.
Speaker 9: The Supreme Court sent it back to the DC Circuit
Speaker 9: to decide, then didn't really take this in an expedited manner,
Speaker 9: and then issued the opinion on the last day of
Speaker 9: their term. So to me, it smells a lot like
Speaker 9: what they were doing was purposely trying to delay matters
Speaker 9: for Donald Trump so he wouldn't have to have his
Speaker 9: day of reckoning in court prior to the election.
Speaker 2: All right, Nick, thank you so much for joining us.
Speaker 2: Nick Ackman, former assistant Special Watergate prosecutor prosecutor, and Zoe
Speaker 2: tell Me legal reporter for Bloomberg News based in Washington
Speaker 2: and DC.
Speaker 4: The latest is that the Supreme Court has given Trump
Speaker 4: partial immunity when it comes to trying to overturn the
Speaker 4: twenty twenty election. Want to get right to the Supreme
Speaker 4: Court here with Greg Store, Supreme Court reporter on this ruling.
Speaker 4: All right, Greg, what is the feeling. What's the reaction
Speaker 4: where you are walk us through, walk us through the latest.
Speaker 10: Well, even though Donald Trump didn't get everything he saw
Speaker 10: in this ruling, he certainly got enough. This is a
Speaker 10: very big ruling in his favor because it means that
Speaker 10: there's really no practical way a trial can happen before
Speaker 10: the election. What exactly is going to happen when the
Speaker 10: case goes back to the lower court. The extent to
Speaker 10: which this case is still viable in theory, we don't
Speaker 10: know that yet. But what's clear is that the idea
Speaker 10: that he could be tried and convicted before the election
Speaker 10: is a non starter at this point.
Speaker 2: Gregor Prior guest Nick Ackerman, former assistant special Watergate prosecutor,
Speaker 2: really kind of calling out the court I think here
Speaker 2: for some politalization of their duties visa VI kind of
Speaker 2: what we saw from the Supreme Court back and the
Speaker 2: Nixon investigation. What's your feeling about how this court ruled
Speaker 2: here in this case. What are some of your sources
Speaker 2: telling you.
Speaker 10: Well, I'll leave the kind of the rightness or wrongness
Speaker 10: of the substance of this opinion to other folks, But
Speaker 10: in terms of the timing of this there was certainly
Speaker 10: there were certainly a couple has the Court could have
Speaker 10: taken to get this ruling out sooner. They could have
Speaker 10: The Special counsel Jack Smith, asked the Court last December
Speaker 10: to take up the case on an ultra expedited basis.
Speaker 10: The Court turned him down. They could have taken it.
Speaker 10: Then they could have issued a quick ruling and then
Speaker 10: maybe there would have been a trial before the election.
Speaker 10: They made a choice not to. They wanted to delve
Speaker 10: deeply into these constitutional issues. They wanted to let a
Speaker 10: federal appeals court decide the case first. And the practical
Speaker 10: impact is that it ends up being a huge victory
Speaker 10: for Donald trumpet even though they didn't go quite as
Speaker 10: far as he actually asked them to go. He asked
Speaker 10: them to throw out the indictment. They didn't go there.
Speaker 4: So, being a Supreme Court reporter and have been for
Speaker 4: quite a long time and kind of knowing how politicized
Speaker 4: in some ways it has become at least the rhetoric
Speaker 4: around that. What's been your takeaway over the last week
Speaker 4: and a half of all the decisions that we've learned, Like,
Speaker 4: where does that set us up?
Speaker 8: Now?
Speaker 1: Yeah?
Speaker 10: I mean it is very noteworthy that this ruling elects.
Speaker 10: Several others that we got recently were six three ideologically divided,
Speaker 10: the six Republican appointees, including the three Trump appointees in
Speaker 10: the majority and the three Democratic appointees in dessent. This
Speaker 10: is a conservative supermajority. They didn't rule in every single
Speaker 10: case this term on the conservative side, but they did
Speaker 10: in an awful lot of them. And you know, we're
Speaker 10: it's really going to have sweeping impacts on the law
Speaker 10: in a lot of areas. You know, rulings that we got,
Speaker 10: including one today that's going to probably not get a
Speaker 10: whole lot of attention having to do with administrative law
Speaker 10: and a big ruling last week, are really going to
Speaker 10: curtail the administrative state and regulation. And of course this
Speaker 10: ruling could have tremendous political impacts.
Speaker 2: So, as you mentioned, Jack, we've had have had a
Speaker 2: number of six three rulings along political lines. How normal,
Speaker 2: abnormal unusual?
Speaker 5: Is that?
Speaker 10: Certainly in recent years it's not that unusual. We've come
Speaker 10: to be used to it. There was a time back
Speaker 10: before twenty ten where you have a lot of you know,
Speaker 10: justices crossing over so to speak, Republican of re appointees
Speaker 10: who voted in a liberal direction in a lot of cases,
Speaker 10: and occasionally Democratic appointees who voted in a conservative way.
Speaker 10: We see an awful lot less of that. Now. The
Speaker 10: ideological divides on this court are also the partisan divides
Speaker 10: on this court, and that, coupled with the divisive, polarizing
Speaker 10: times that were in politically, mean that we end up
Speaker 10: with a lot of these rulings where the Republican appointees
Speaker 10: are are doing things that benefit the Republican party and
Speaker 10: their interests.
Speaker 4: To that point that you made about regulation, can we
Speaker 4: just kiss a lot of regulation good bye? I mean,
Speaker 4: it just seems like if I add up all the
Speaker 4: cases on that, I mean, is that a safe takeaway
Speaker 4: for me?
Speaker 10: I'm not sure I would guess it goodbye in the
Speaker 10: sense that all this is going to have to be
Speaker 10: fought over in the courts. It's going to be case
Speaker 10: by case. They are going to be just a slew
Speaker 10: of lawsuits challenging regulations, both existing ones and ones going forward.
Speaker 10: So I'm not sure it's like cut and dried. I
Speaker 10: can point to that regulation is not going to survive,
Speaker 10: but it's pretty clear that there are a lot of
Speaker 10: regulations that won't survive, and even more of them that
Speaker 10: are going to be under fire and kind of under
Speaker 10: question and raising uncertainty.
Speaker 4: Okay, So then to that point, let's pretend that Congress
Speaker 4: now issues super clear regulation or laws and everything is
Speaker 4: super cut and dry, which I don't know if that's
Speaker 4: actually possible. How many of the laws that we're going
Speaker 4: to see past we're going to eventually just wind up
Speaker 4: in courts like how do we govern? In that case?
Speaker 10: Well, a lot of them will. With regard to these
Speaker 10: Supreme Court rulings on the administrative state, most of those,
Speaker 10: it tend to be or the regual focus of those
Speaker 10: are where Congress hasn't been clear, And if Congress had
Speaker 10: been clear in a particular law, then we wouldn't have
Speaker 10: the case that we're having. We're kind of dealing with
Speaker 10: what happens when regulators sort of try to fill in
Speaker 10: the gaps or do something without explicit authorization from Congress.
Speaker 10: Now it's possible there's a there's a you know, a
Speaker 10: case that the Court could say tomorrow that it's going
Speaker 10: to take up that would actually restrict Congress's power to
Speaker 10: delegate things to administrative administrative agencies. But right now, a
Speaker 10: lot of these things. If you think they are problems,
Speaker 10: there are, at least in theory, problems that Congress could fix.
Speaker 10: The issue is more that you know Congress doesn't have
Speaker 10: the political will or the functionality at this point to
Speaker 10: enact a whole lot of clear legislation.
Speaker 2: The mechanism how this is going to move here for
Speaker 2: President Trump in this community case, where's it going to go,
Speaker 2: when's it going to go, and timing, So.
Speaker 10: It will get kicked back to the federal district judge
Speaker 10: who's overseeing the trial, Tanya chuck Kin. That won't formally
Speaker 10: happen for a month or so. She has said that
Speaker 10: even before this ruling happened, that she's indicated she's allowed
Speaker 10: a couple of months, two or three months for each
Speaker 10: side to prepare for trial, and the trial could last
Speaker 10: two or three months. And now on top of all that,
Speaker 10: she's going to have to dive into these allegations and decide,
Speaker 10: looking at the testa Supreme Court laid out is is
Speaker 10: this official or is this private? And therefore can stay
Speaker 10: in the indictment, And those decisions that she's making very
Speaker 10: likely will be appealable before there's even a trial. So
Speaker 10: we're talking about a much longer timeline than it had
Speaker 10: previously looked like we were going to have.
Speaker 4: All right, Greg, we appreciate it. I know it's been
Speaker 4: incredibly busy a couple of weeks for you, especially today,
Speaker 4: Greg Store, Bloomberg Supreme Court reporter, by joining us in
Speaker 4: all the Supreme Court rulings,