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