This is Bloomberg Law with June Brusso from Bloomberg Radio.
For the purpose of this criminal case, former President Trump has become citizen Trump. That's what the DC's Circuit Court of Appeals wrote as it moved Donald Trump one step closer to standing trial for trying to overturn the twenty twenty election. In a decisive, unanimous ruling, the three judge panel found that Trump can't claim that the office of the presidency protects him from criminal prosecution. The judges wrote, we cannot accept that the Office of the Presidency places
its former occupants above the law for all time. Thereafter, the judges had made their skepticism of Trump's immunity claims clear during the oral arguments last month. Here's Judge Karen Lacraft Henderson.
I think it's paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal laws.
And in the opinion, the judges repeatedly used Trump's words and positions against him, for example, pointing to Trump's position during his impeachment that he could still be criminally charged, something Judge Florence panpointed out during the arguments.
You took the position or your client did during the impeachment proceedings that there would be an option for criminal prosecution later, and it's in the congressional record, and I guess the question is what has changed or why have you changed your position.
The court put the ruling on hold for Trump to appeal to the Supreme Court, but only until Monday. Joining me is former federal prosecutor Jessica Roth, a professor at Cardozo Law School. The court said, our analysis is guided by the Constitution, federal statutes, and his as well as concerns of public policy. What's your impression broadly of the opinion?
My opinion broadly is that it is a resounding rejection of Trump's claim of immunity from criminal prosecution, and that it's an extremely thorough well written and well reasoned opinion that is unanimous issued on behalf of a panel that included one judge appointed by a Republican president, all speaking in one calm but clear voice, holding that a former president is not above the law.
They address all of Trump's arguments for immunity and shoot them down one by one, starting with his argument that separation of power's doctrine immunizes him.
The Court took that argument seriously and addressed it thoroughly, but found that there was no problem in separation of powers concerns with a former president being held criminally responsible for actions taken while in office that were in violation of federal criminal laws passed by the United States Congress.
And it cited precedents in which presidential actions had been subject to judicial review, including former President truman seizure of the steel mills, and the Court said it did not find that separation of powers concerns prevented the Court from exercising oversight through the adjudication of the criminal laws over acts committed by a former president while in office that in fact were violations of criminal law.
As you mentioned, there was a measured tone, but I thought that the tone was a little less measured when they had concerns about quote at bottom, former President Trump's stance would collapse our system of separated powers by placing the president beyond the reach of all three branches. At different points, I just thought that they raised some heightened concerns.
They certainly raised concerns, and there were a number of really striking portions of the opinion that in a sense in a very measured way, I thought, expressed a sense of outrage over the implications of the former president's arguments.
So you just read one portion of it. There's another portion where the court said, it would be a striking paradox if the president, who alone is vested with the constitutional duty to take care that the laws be faithfully executed, were the sole officer capable of defying those laws with impunity.
So there are a number of statements like that that are just really strong rejections of the notion that a former president would be immune from prosecution and from his actions being reviewed by the court.
They also took on policy considerations that he'd raised. Trump's lawyer had said, and Trump himself has said this on the road, that if presidents didn't have immunity, it would risk chilling their actions, and that presidence would be routinely indicted after they left office.
Yes, the court did into account those policy considerations and said that not only was there no historical precedent for immunity from criminal prosecution of the kind that former President Trump thought, but that these policy considerations did not weigh in favor of recognizing such immunity. For the first time. In this case, they said that it has always been understood that former presidents could be subject to criminal prosecution
when they left office. For example, that's why former President Ford pardoned former President Nixon. They cited the example of former President Bill Clinton, who entered into an agreement with the special counsel who had been investigating him with various sanctions, including forfeiting his law license, in part to settle the
prospect of a future criminal prosecution. And then, most importantly, they cited statements by attorneys for former President Trump during his impeachment trial his second impeachment trial, they argued that impeachment was not the proper remedy, but rather the possibility
of a criminal prosecution would be the proper remedy. And so they said these examples that point toward an understanding that former presidents could be subject to criminal prosecution when they left office for acts taken while president, and that there was no suggestion in the historical record that that prospect had chilled presidents while they were in office from
exercising their duties without too much concern. And in fact, there was a quote from the district court opinion that they reiterated in the appellate opinion that I just thought was very telling. The District Court had said, every president will face difficult decisions, whether to intentionally commit a federal
crime should not be one of them. And the DC Circuit quoted that language, saying, basically, they don't think that they're holding that there is no immunity from criminal prosecution is going to actually chill presidents in the exercise.
Of their duties. They sort of turned the argument around against Trump. During the oral arguments, Trump's lawyer spent seemed like most of the time on the impeachment clause and this argument that Donald Trump would first have to have been convicted by the Senate in order to then be tried criminally after he left office.
So, as the Lascimenta points out very clearly, then the founders, the framers actually in the Constitution Convention clearly contemplated that that sequence that I've described would be mandatory. He would have to be impeached and convicted first of them.
And they took that on and they said, the strongest evidence against Trump's claim of immunity is found in the words of the Constitution's impeachment clause.
They did treat thoroughly this argument that he could not be prosecuted criminally because he had not been convicted in
the Senate relying on the impeachment clause. They addressed it thoroughly and said that they rejected it, that they thought it was a strained reading of the clause that he offered, and that although the clause makes clear that a president can be criminally prosecuted after being impeached and convicted, that the negative implication that Trump was arguing from that clause that he could only be criminally prosecuted if he had
been convicted in the Senate following impeachment simply did not follow.
So in the opinion, you had the legal arguments based on precedent and history and the Constitution, and then there were the sort of logical, sensible arguments, and one here was that, you know, the founders knew how to grant immunity if they wanted to, and they didn't want to hear.
Yes, absolutely.
They cited to other portions of the Constitution that were explicit about granted immunity, for example, with respect to the speaking debate clause and making clear that there would be immunity there for actions in the course of speech and debate. By members of Congress, And so if the framers knew how to be explicit about grants of immunity, it follows that if they didn't explicitly grant it to presidents in this context, that it doesn't exist.
Is there any part of this opinion that you think is weak or subject to attack on appeal?
It is a really sorrow opinion, and I think that the fact that the Court took its time to write this and to speak in one voice clearly was time well used to write such a sorrow opinion. I do not see any weak points in this opinion. I thought it was interesting that the court wrote in a footnote that it was not addressing the situation of a criminal prosecution by a state prosecutor for ax undertaken in office, and nor was it addressing the prospect of immunity of
a sitting president from criminal prosecution. So in a sense, it's very much narrowly tailored to the situation before the court.
And where did Trump's arguments about official acts go?
I thought it was really interesting that the DC Circuit held categorically that there was no immunity from criminal prosecution for a former president, even for official acts at the oral argument, and given the briefing, much of which was dedicated to whether these were official acts of the president, I thought it was possible that the court would say, we're not going to deal with the categorical question because we're going to find that there is no immunity here
because these were not official acts. In other words, they might have said, arguendos, we're going to apply the framework for immunity from the civil context to the criminal context, which is what Trump invited them to do, that we would find that even within that framework, these actions by Trump fall outside of his official acts. Have written an opinion along those lines, but they didn't, and I think
that that is significant. It's a really sort of resounding rejection of the idea that there could be immunity from criminal prosecution even for official acts. The Court didn't really discuss whether or not these were official acts in the
body of its opinion. They dropped a footnote where they said, even if we were to apply that framework, which asks whether the actions were within the outer perimeter of the presence responsibilities, which is the civil suit immunity framework, they said, we are doubtful that these most of these acts is alleged to the indictment would constitute official acts, and they cited to their recent's opinion in the Blastingham case, which was the civil suit against Trump and others involved in
the January sixth riot, where the court did apply the civil immunity framework and found that most of the actions as alleged in those civil complaints outside the outer perimeter
of official actions. And so although the court didn't squarely address that question in this opinion, because it didn't need to, given that it said categorically there is no immunity from criminal prosecution, I thought it was interesting that it did drop that footnote essentially expressing doubt that these would be deemed to be official acts.
Didn't the judges also throw cold water on any claims that the counting of the ballots, that part of the electoral process has anything to do with the president.
They did.
They talked about how these were not actually acts that were within the president's duty, that these were not matters entrusted to him, and to the extented he claims that his actions were an effort to see that the laws were faithfully executed, that that essentially was a disingenuous argument here because he had no role to play with respect to the administration of the state elections and the county of the electoral votes, and that, in fact, what he
did was an effort, as alleged, it's an effort to actually undermine the working of the laws that do govern the election of the president. It's a one other sort of notable quote from the opinion in that regard is the court said former President Trump's alleged efforts to remain in power despite losing the twenty twenty election were, if proven,
an unprecedented assault on the structure of our government. He allegedly injected himself into a process in which the president has no role the counting and certifying of the Electoral College votes, thereby undermining constitutionally established procedures and the will.
Of the Congress.
Jessica, you're going to stay with me. Coming up, we're going to discuss whether the Supreme Court will take this case on appeal. I'm June Grosso and you're listening to Bloomberg. In a unanimous ruling, the DC Court of Appeals has found that Donald Trump cannot claim that the office of
the presidency protects him from prosecution. Quote. Former President Trump has become citizen Trump with all the defenses of any other criminal defendant, but any executive immunity that may have protected him while he served as president no longer protects him against this prosecution. This decision moves Trump closer to standing trial for trying to overturn the twenty twenty election,
but it may not be the last word. The court put the ruling against Trump on hold until February twelfth for him to appeal to the U. S. Supreme Court. He might also ask the full d C. Circuit to rehear the case. Neither court is required to take up his appeal. I've been talking to former federal prosecutor Jessica Roth, a professor at Cardozo Law School. The court gave Trump until Monday only to appeal to the Supreme Court to
have this case on hold. Do you think they were looking at his strategy of delayed delay delay.
I can't speak to what was in the judge's vines in their decision about the timing here. It is notable that they gave him a short time frame in which to appeal to the US Supreme Court before they would
issue the mandate. I think it speaks to the urgency of the matters involved in this case, and you see that sense of the significance of this case throughout the Court's opinion when it talks about how the alleged conduct was an effort to overturn the results of a democratic election and the public's interest in the enforcement of criminal laws.
So I think that those substantive aspects of the case may carry over to the court sense of what is an appropriate time frame in which to allow resort to further appellate review before the case goes forward in the district Court.
Does that order the way it's it's raised mean that if Trump decides to appeal on Bank to the DC Circuit that the order won't be stayed.
Yes.
So the order makes clear that although Trump could file a petition for rehearing in Bank from the full DC Circuit, that motion would not stay the mandate. The only thing that will stay the mandate beyond Monday would be Trump filing an application for a stay from the United States Supreme Court. And as I read the DC Circuit order, its mandate will be stayed tending the US Supreme Court's resolution of a motion by Trump for a stay. So, if the Supreme Court considers an application by Trump for
a stay and rejects it. Then the case goes back to the trial court, even if the US Supreme Court subsequently grants circiora.
No one knows whether the Supreme Court will take the case or not, but they already have a couple of Trump cases on the docket, including this Thursday, the case over Colorado barring him from the ballot. What would be your guess as to whether they'll take the case or not.
This is such a well reasoned and thoughtful opinion that I think they are very compelling reasons why the Court wouldn't take this case. There's no circuit split on this issue, and they certainly have their plateful with other really important cases that they need to decide, including the ballot access question. On the other hand, this is an enormously significant issue whether a former president is entitled to immunity from criminal prosecution.
One could imagine the Justice is saying this is an issue on which we should open. But on the other hand, unless there are enough justices who think that the DC's circuit opinion is wrong, then I could also see them letting the DC opinion be the final word on this subject.
So is everything here because the federal election case was on for March fourth, but then the judge had to take it off the calendar. If the Supreme Court decides not to take the case, how fast could the trial be put back on the calendar and move forward.
Well, the Trial court has indicated that she will give the former president additional time to respond to motions that were filed by the special counsel to file any additional motions on his own behalf time that but for the stay of the trial court proceedings, he would have had to work on these motions in this last month or so. So she's going to give him that time. That means we're probably looking at some time at the earliest in late summer, perhaps late July, early August, for a trial date.
But we really don't know what's going to happen. I mean, if the US Supreme Court were to take the case in grant to stay, that would mean that things would remain frozen. We really don't know, But we do see coming from the Trial Court in DC, Judge Chutkin every effort to move the case along as expeditiously as possible. So I think we may have a better sense by next week, by Monday, when and if Trump files an
application in the US Supreme Court for a stay. Whether that's going to happen, I expect it will, and then I would imagine within a week or so after that, perhaps we would have some indication from the US Supreme Court about how quickly they're going to move, and if they're not going to take the case at all, then these things may start proceeding even more quickly in the trial court.
So I know that what they say here, or as they said it has no application to what's happening in Georgia. But Trump did make a similar argument in Georgia, and I'm wondering if the courts there might look to what this court has said.
I think the courts there will look to what this court has said as persuasive authority. Certainly, the analysis about the functional considerations about what impact would a holding that a case, a criminal case could go forward have on a president's ability to conduct their official duties without too much concern. I think that would be persuasive to state courts considering whether immunity should apply from a state prosecution.
But I do think that some of the language might cut the other way, in the sense that one of the things that the Court says about why federal criminal prosecutions don't pose as great a concern as the prospect of civil lawsuits is. They said, well, essentially, there are so many private parties who might file civil lawsuits against a former president, and that prospect is significant enough for
us to be concerned about not granting immunity. Those are statements that the US Supreme Court had made in the Fitzgerald's case, where it did recognize immunity from civil lawsuits for presidents for actions taken in the course of their
official duties. DC Circuit said, well, we don't think those considerations apply with the same force with respect to federal criminal prosecutions, because prosecutors are subject to a number of constraints before they can bring criminal charges, including a code of ethics and also having to present their cases to a grand jury composed of ordinary citizens before the case can proceed. So much of that language I think works in the same way with respect to date criminal prosecutions.
Prosecutors in the States also are subject to codes of ethics before they can bring charges. They also generally have to present them before a grand jury. But on the other hand, there are many more state prosecutors in a sense than there are federal prosecutors who are all encompassed within the Department of Justice. So I could see that discussion parts of it being used to help establish immunity from state prosecution, and parts of it being used to
establish it there is no immunity from state prosecutions. And then of course there's a whole issue of the supremacy clause on how that would work in the context of state prosecutions of a former president. That wasn't a consideration in this case because it is a federal prosecution of a former president.
So now we'll be keeping our eye on the calendar until Monday to see what happens with the appeal. Thanks so much, Jessica. That's Professor Jessica Roth of Cardozo Law School, coming up next on the Bloomberg Lawn Show. The Pennsylvania Supreme Court has made a ruling in a case over the use of Medicaid dollars to cover the cost of abortions, and the reasoning in that ruling signals a possible new path for reasserting abortion rights. I'm June Gross when you're
listening to Bloomberg. The Pennsylvania Supreme Court has ordered a lower court to reconsider a challenge to the states decades old ban on using medicaid funds for abortions except in cases of rape or incest. But the State Supreme Court's
reasoning has far wider implications. A law school professor Jessica Levinson has written in a column for MSNBC, the majority opinion signals a possible new path for reasserting abortion rights, as well as thoroughly rebutting the Supreme Court's Dobb's decision, which overturned Roe v. Wade, and Professor Levinson joins me, Now, Jessica, in order to put this in context, where you have to go back to the Roe v. Wade decision in
nineteen seventy three, explain how the court used the Fourteenth Amendment. There. Rov.
Wade is the Supreme Court deciding what is included in the word liberty in the Fourteenth Amendment, what is constitutionally protected, And leading up to Roe v. Wade, what the Supreme Court had concluded is that broadly, there is this right to privacy that's included in that word liberty. That broadly that includes, for instance, the right to obtain contraception. But the question in Roe v. Wade was does the word
liberty include the right to obtain an abortion? And back in that case, the court answered in the affirmative, they said, yes, it's not written anywhere in the Constitution, but we find these unwritten rights and we conclude that they are included in this word liberty. That the drafters of the fourteenth Amendment knew that we were going to have to fill in meaning to that word. And one of the things that must mean is the right not just to contraception, but also to an abortion.
And you right that Ruth Bader Ginsburg, the attorney Ruth Bader Ginsburg, would have chosen a different legal theory.
That's right, in part because I think Justice Ginsberg knew that a decision like Dobbs could come down, and I think her feeling was instead of locating the right to obtain an abortion in the due process clause of the fourteenth Amendment, instead of saying it's an unwritten right that's included in the word liberty, let's instead look to a
different part of the fourteenth Amendment. Let's list to the equal Protection clause, and let's look at how abortions obviously and the right to obtain an abortion disproportionately falls along gender lines. It is women and now trans men who can obtain abortions, And what she thought is that it's much cleaner to look at this as an equal protection clause analysis. Obviously, if you limit abortions, that is something that will have an impact on women in a very
different way than it will impact men. And I think she was worried about writing rights into the Constitution that weren't written and therefore could potentially be overturned by a future court.
Is that why she was a critic of Roe.
I think that Jessice Ginsberg was a critic of Roe in part because she thought that this was cleaner and more legally elegant not to ever put words in her mouth as an equal protection cause analysis saying this is really amounts to gender discrimination when you limit or ban abortions. I think part of it was that Justice Ginsberg was somebody who, when she looked at women's rights, understood that
we needed to move incrementally. And I think some of her writing and some of her speeches indicate that she thought maybe we needed to move more slowly when it comes to finding a constitutional right to obtain an abortion. Not because she personally didn't believe in that or didn't believe that it was legally correct, but that she worried about the court and a gap between the court and public opinion.
And now we have the Pennsylvania Supreme Court tell us about the decision on the state law banning the use of medicaid funds for abortions.
So this is a case that's fascinating where we see now the question largely about abortion rights is going back to states, and in this case, the state Supreme Court. And this is a state Supreme Court that isn't looking directly at that state's equal protection clause, but is instead
looking at that state's equal rights amendments. Now, I think that's worth noting, but it's also worth noting that the court, in my view, kind of got very close to talking directly about that state constitution in the equal protection clause. But essentially, I read that State Supreme Court decision as saying, when we look at restrictions on abortions in this case, you cannot use government funds to obtain an abortion, we have to acknowledge that the impact is falling on gender lines.
The court also acknowledge that you are treating certain women women who want to end a pregnancy as different from those who want to care continue a pregnancy, where the women who want an end of pregnancy get no funding from the government, but those who want to continue and carry a child to term do get funding from the government.
So they saw different places where the government is treating arguably similarly situated people differently, and that is what gives rise to this the quality question.
And you think it's a much cleaner argument, Well, I think.
The argument when it comes to substance who due process on the federal level is obviously done for now. The Supreme Court said indabbs in no uncertain terms that there is no constitutionally protected rights to an abortion under the federal constitution. Now, there are some states that could look at their states to process clauses and decide that abortion is protected. But I think the equality argument does have a lot of a peace you'll legally speaking, now there's
still questions that you need to look at. You still need to look at how different state if and when they have equal rights amendments the specific wording. You still have to look at the equal protection clause state by state in those states constitutions and figure out if in fact, we're going to say a restriction on abortion amount to gender based discrimination. So it's not that we're absolutely there, it's that there's a new framework that at least the
Pennsylvania Supreme Court is looking at. And then I think offers hope for those who do want legal protections for women in their ability to obtain abortions.
This could work in some of the states. Could it work federally as well?
So I believe it could work federally if we want to change our paradigm. And again, the Pennsylvania Supreme Court looking at the state Equal Rights Amendment, But if we want to make this conversation broader, and if we want to look at restrictions on abortions as discrimination based on gender, then that is a conversation that we can have under the Equal Rights Amendment. Now, it would take the Supreme Court using a different strategy and espousing a different task
than it otherwise has. This is not a theory that the Supreme Court has ever previously espoused. But I think that you could say, again, because the vast majority of people who speak an abortion are women. There are some transmen, but we're talking about disparate impact here. Then if you're looking at the Court's current jurisprudence. What you need to
ask is about discriminatory intent. That's a difficult threshold, But I think that this is a legal framework that could be employed on the federal level.
How would that work on the ground. You'd have to have a case where someone challenges an abortion restriction based on the equal protection.
Argument exactly, and then that case has to move up the system. The Supreme Court has to decide to take that case, which I frankly think is not likely. The Supreme Court in Dobbs already said basically, now we're done, We're not deciding more abortion cases, and of course that
is not true at all. The Court is looking at midf for Priston, but they're also looking at a case dealing with whether or not there's a federal statute that requires people to obtain be able to obtain free emergency treatment in emergency rooms, whether or not that applies to women seeking abortions. So they're certainly not out of this question.
The Pennsylvania Supreme Court also attacked Justice Alito's reasoning in the Dobbs decision.
Yes, what we saw from the Pennsylvania Supreme Court was a strong rebuke of the US Supreme Court's majority opinion in Dobbs, and what they really reminded us of, and this was specifically in a concurrence as well, is that when you're looking at history, there are often different lenses
through which you can look at history. And part of the problem I think in grounding constitutional rights based on the time that either the Constitution was ratified or an amendment was ratified, is that that was often a time in society where we had gross inequality. So looking at, for instance, the fourteenth Amendment and when that was added to the Constitution and asking at that moment whether or not abortions were legal, I think is problematic because it
has the effect of kind entrenching inequality. It has the effect of saying, let's locate this right at a time when women, frankly were second class citizens, women couldn't vote. I believe at the time spousal rape laws were rare, or at the very least not the majority. I think the answer is quite rare. But women were not full participants in society, And so there's a problem when you locate rights at a time when our society looked very different.
How do we get to this point where constitutional interpretation means relying on tradition and history, going back to a time when society was so different. I mean, look at the Second Amendment cases where they're comparing modern weapons to weapons, you know, back in the eighteen hundreds.
Well, I think people who are originalists or constructionists, what they would say is I'm a judge, not a lawmaker, and I'm interpreting what provisions of the Constitution mean, and it's not up to me to say what I think is wise or unwise. I don't make policy. I just apply the facts of cases to existing laws, and I
helped to inter for those laws. And I think proponents of originalism would say it's the only way to make sure that we don't have judicial activism, that we just need to look at the time that the Second Amendment was ratified or the Fourteenth Amendment was ratified and figure
out what was allowed and or prohibited at that time. Now, obviously those who are proponents of originalism, I'm sure would say much more than I just said, But it is certainly a judicial philosophy that I think has now been espoused by a majority of the Supreme Court. And again, what people what supporters would say is I'm not somebody who's elected. I'm the furthest away as a judge from we the people, and so I shouldn't be acting as a super legislator. I should be acting as somebody in chief,
Justice Roberts Words, who just calls balls and strikes. And the only way I can do that is just looking at the plain language of these when they were adopted.
I remember when the late Justice Antonin Scalia and Justice Stephen Breyer used to debate Originalism versus the living Constitution, and it appears the living Constitution has lost. Thanks so much, Jessica. That's Professor Jessica Levinson of Loyola Law School. And that's it for this edition of the Bloomberg Law Show. I'm June Grosso and you're listening to Bloomberg. And that's it
for this edition of the Bloomberg Law Podcast. Remember you can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com, Slash podcast, Slash Law. I'm June Grosso, and this is Bloomberg