Welcome to scot Discast, a project of the Federalist Society for Law and Public Policy Studies. Our contributors joined us from around the country to bring you expert commentary on US Supreme Court cases as they are argued and the decisions are issued. The Federalist Society takes no position on particular legal or public policy issues. All expressions are those of the speaker. Hello, and welcome to scot Discast. I'm your host, Kyle hammernis On, behalf of the Faculty division of
the Federalist Society. We are here today to discuss Trump versus United States, which was argued before the Supreme Court on April twenty fifth, twenty twenty four. It is my honor to introduce our guests today, Stephen Bradbury. Stephen
is a Distinguished Fellow at the Heritage Foundation. He has also served in multiple administrations, first in the George W. Bush administration as the Principal Deputy and Acting Assciation Attorney General for the Office of Legal Counsel in the US Department of Justice, and then in the Trump administration as the Senate Confirmed General Council of
the US Department of Transportation. And with that, i'd like to turn things over to our guests to summarize the background of the case and the lower courts
proceedings. Great Kyle, thanks so much pleasure to be here. This is the prosecution brought by Special Council Jack Smith against former President Donald Trump that's colloquially known as the January sixth prosecution or case here in Washington, d C. Is the second of two federal criminal indictments brought against President Trump by Jack Smith. The first one is the Document's case down in Florida, but then this
January sixth case. This case is largely based on the evidence that was developed by the January sixth Congressional committee that investigated the riots and the break in of the Capitol on January sixth, and put together evidence purporting to tie Donald Trump to the events of January sixth. Jack Smith then weaves that into an indictment that was approved by a grand jury in the District of Columbia and brought in
federal court before Judge Tanya Chuckkin, Federal District judge in DC. The charges in the indictment against Trump in this case involve allegations of fraud on the United States, conspiracy to defraud the United States, interference or conspiracy to interfere with official proceedings of the federal government, and also a charge of conspiracy to deny voting rights to American citizens, all related to activities around the election of twenty
twenty and President trum efforts to undermine the results of the election in certain states or cause states to reconsider those results, recount the votes, etc. The conduct that's alleged in the complaint, and that the complaint charges underlies these alleged crimes involves the former president communicating his views to the American people through tweets, speeches, otherwise, that the voting was infected with fraud and anomalous activities in
the various states that called into question the certified results in those states. His efforts to communicate with state legislators and state officials to cause them to reconconsider, take another look at the votes, accept his concerns about the fraud in the election, and his discussions with his subordinates in the Department of Justice, and his efforts to urge the Acting Attorney General and others in the Department of Justice
to take action on these theories of voting fraud and to send letters or communicate to the states the views of the Justice Department, really the President's views that they need to reconsider their votes, his communications with his own vice president, who is the president was the president of the Senate, presiding at the joint session of Congress when they were gathered to count the electoral votes and certify the final results of the election, and urging the vice president to act to push
off or stall the certification of the vote. Similar discussions with other members of Congress to do the same. These charges before Judge Chuckin relate obviously to a lot of activities of the president that involve speech, involved petitioning state governments based on his complaints about the way the election was conducted, efforts to manage his own subordinates within the executive branch to take action, and communications with Congress.
Kind of mixed in there are what you might describe as official acts of a president in office, also some acts that you might describe as the private acts of a candidate for office, all kind of mixed together in the various allegations
in the indictment. So President Bush and his lawyers brought a number of motions before Judge Chuckkin to try to get some or all of these charges dismissed, and those motions included using the First Amendment as a defense, but also claiming that to the extent what's being charged in the indictment involved the official actions of a president, he as a former president, was absolutely immune from criminal liability
for any of those actions. And this argument about absolute immunity for former president was patterned by his lawyers after the similar doctrine of absolute immunity that the Supreme Court recognized way back in the nineteen eighties in a case called Nixon versus Fitzgerald. And this was absolute immunity the Supreme Court has recognized for civil liability,
that is, civil lawsuits that might be brought against the former president. In the case of Nixon versus Fitzgerald, it was an official in I believe the State Department who had been fired from his job, removed from office, and he claimed improperly and he brought a lawsuit against a number of Nixon administration officials, including the former President of the United States, Richard Nixon, and Nixon said, wait a minute, I should be immune, because if you don't
give me immunity from a civil charge like this, future presidents will be hampered in their willingness and ability to carry out the functions of their office, because they could potentially face unlimited civil liability lawsuits for all manner of grievances involving the official actions of the White House official actions of the President, and the Supreme Court agreed with that argument and recognized a doctrine of absolute immunity for civil liability
against a former president. And the scope of that immunity is very broad. It reaches to what the Court described as the outer perimeter of the official actions of a president. So if there's any plan argument that what the president was doing was within his authority as commander in chief for chief executive of the executive Branch under the Constitution, that he would have absolute immunity from civil liability. So President Trump argued for the same kind of immunity for criminal liability. This
is not something Supreme Court has ever held. This is a new This would be a new extension of immunity, a new immunity doctrine. And that's because this is an unprecedented situation where the Justice Department of the United States, through Special Council Jack Smith, is attempting to prosecute a former president for actions he took while in office, and that's never happened before in the history of the country. So obviously a Supreme Court never had a previous opportunity to address this
question of immunity for criminal liability for presidents. This argument didn't go so well before Judge Chuckkin in the DC. She gave it the back of her hand. She rejected any notion that a former president could claim any protection whatsoever for his official actions or arguably official actions, from criminal liability of any kind under any federal criminal statute. And as you know, some criminal statutes are expressed
in very broad terms. They talk about whoever does this or if any person does X or y. And if you think about applying some of those statutes to the official acts of a president, the potential for creative application could be quite expansive. Think about the charges brought in this case, fraud on the government. Any communication a president makes to Congress to other elements of the federal
government. If there's an argument that those communications were misleading or false, there's at least the potential for criminal life ability there as a fraud or interfering with an official proceeding. Anytime the president takes an action that could arguably impede Congress's ability to meet or conduct business, or some agency or entity of the government. Same kind of argument could be made to attempt to impose criminal liability on
a former president who had approved an action like that. So the issues are novel, the issues are serious. Judge Chutkin did not think there was any
basis for any protection whatsoever. It went up to appeal to the d C Circuit, and President Trump took an emergency appeal up trying to get basically an order blocking the trial from moving forward, and the DC Circuit heard argument on an accelerated basis this past December, and in early January issued an opinion from a three judge panel in DC that again rejected any notion that the president could claim protection immunity of any kind and really sort of denigrated the argument that was
made by President Trump's lawyers. You probably saw the coverage about some of the exchanges in the oral argument before the panel of judges in d C, where they got the president's lawyer to acknowledge certain hypothetical extreme situations where the immunity they're claiming might apply to actions that one would think were pretty outrageous, and that got a lot of coverage. But again the bottom line was the DC Circuit said no protection, No matter how broadly worded the statutes are, no former
president has any protection against criminal liability. We're just going to leave it up to the discretion of politically appointed prosecutors in the Justice Department who may be able to get an indictment from grand jury in a district like the District of Columbia that may be very much politically opposed to the former president in question. And that arguably is what has happened right here in DC, and so much to the surprise I think of a lot of legal analysts and observers. The Supreme
Court was very interested in this issue. Initially, the Special Council Jack Smith tried to get the Supreme Court to take cert on this case back in December to short circuit President Trump's assertion of immunity and force an early trial. Jack Smith is hoping to get a trial on this January sixth case before the election. The Supreme Court denied his effort to get cert early. They waited for the DC Circuit to hand it's opinion down, and then President Trump petitioned for
cert on the case. Actually he filed an application for emergency relief, and the court essentially converted that into a cert petition, ordered Jack Smith to respond, and took a lot of Amika's briefs in, and then in pretty quick order, granted cert I think, to the surprise of a lot of observers, and set it for argument on April twenty fifth as a final argument in the term this year. So the argument occurred a week ago today. So Kyle, I'll turn it back to you. That's the lead up to the
oral argument from last week. Thank you so much. That was really, really excellent, really setting the stage for us. So as we turned toward the oral argument, now, can you give us just, you know, kind of your thirty thousand foot view of the argument before maybe we dive into
particulars. I think the bottom line is a number of justices, perhaps a majority, seemed very concerned about the potential for a negative impact, chilling effect on future presidents from broad notions of criminal liability, and seemed to be exploring very seriously the possibility of some middle ground, some form of protection for the official actions of a former president from criminal liability. You might call it immunity.
You might say there were exploring ideas of qualified immunity. We can get into a little more as we discuss this what that might mean. But I think although there didn't seem to be appetite among the justices to go the whole way that President Trump's attorneys, led by John Sower, who presented the argument we're arguing for in terms of very broad absolute immunity, nevertheless, it did seem there's serious consideration given to some form of immunity or protection likely to result
in sending the case back potentially to the district Court again to reconsider these issues in light of the guidance that the court will give in this case. And the bottom line there in terms of timing is that almost certainly means the underlying trial in this January sixth case is not going to happen before election day.
So I guess before we get into any ramifications, and I know you just mentioned one right that this cases looks like it will be pushed back to the district Court and then pass the election date and not necessarily interfere with the election as much as some had thought it would. Do you want to talk more about like the qualified immunity kind of middle ground that you had just mentioned in your previous response. Yes, I think for people's understanding, it's probably best
to think in terms of layers of potential issues. I described the immunity of Nixon versus Fitzgerald that President Trump is arguing for. But before you get there, there are layers that, layers of issues you might address even before you
get to that point. So, for example, I describe the broad nature of some of these criminal statutes, and I think the Court is going to at least several members of the Court will think hard about, well, what might it mean for a future president if there were no restrictions on the application of those rad criminal statutes to all manner of actions that a president might take in office. Would there be any issue in terms of interfering with the president's
ability to carry out his duties under Article two of the Constitution. I think that's the primary concern of the Court, and that was expressed by a number of Justices, Justice Alito, the Chief Justice, Chief Justice Roberts, Justice
Kavanaugh most clearly. Justice Barrett also explored what of the charges in this case might have might have involved official actions of the president and what might have involved private conduct and what were the views of the parties on those questions, all getting at this concern that the application of criminal broadly worded criminal statutes to official actions of the president of certain kinds might have a chilling effect on the willingness
to future presidents to undertake important actions that really are needed for the country to serve the interest of the country. A second, and so that raises this issue of what how do you distinguish between an official act of the president and a private act, a personal act of the president not in his official capacity, A line that I think is going to be important for this case if, as I suggest, it might be remanded for further consideration in the lower
courts. But then a second question is what type of duties of the president under Article two should be immune? Should certain core functions of the president that are essential to his carrying out his functions as president under Article two should they
get special protection? I think everybody agreed in the argument, including the Jacksmith, the lawyer who's arguing for the Justice Department, Michael Dribin, who's a longtime veteran of the Slicter General's Office criminal law expert for the sg's office.
Even he I think acknowledged that if you're talking about core duties, core authorities of the president, like the pardon power or the authority to direct the troops on the battlefield as commander in chief, appointment power, deciding who he's going to appoint to office, that those types of core functions should be free from
criminal challenge criminal liability. Now, if the president did those functions in exchange for a bribe, for example, the taking of the bribe, I think everybody agreed, including President Trump's lawyer, everybody agreed that that could be the bribe itself, the taking of the bribe could be the subject of criminal charge, but the appointment or the pardon that might be given in exchange for the
bribe couldn't be challenged. That's an exercise of president's prerogative as president. Doesn't matter why the president is deciding to pardon somebody or appoint somebody, etc. Sort Of there is an example of an interesting distinction. But so I think that the court may try to distinguish between certain core functions of the president and others. And of course, here Michael Drieban argued that none of the activities
charged in the indictment. He suggested were core functions of the president. For example, he said that presidents don't have any role in how a state counts votes in a presidential election. Presidents don't have a formal role in how Congress conducts its business in counting electoral votes, for example. Presidents do obviously have a role in supervising the attorney general and the other subordinate officers in the Justice
Department, or the vice president. So there may be certain things there that, even under this argument, might be considered core. But the question would be whether the court, for example, will require that if it is addressing some core function of the president, the statute at a minimum, the criminal statute needs to be very clear that it is intended to apply to the president
before a court will interpret it to apply to the president. So you may get layers of arguments like that at the threshold before you get to an immunity question. But then squarely addressing immunity, it did seem that a number of the members of the Court are going to be considering the possibility of some kind
of hybrid or qualified immunity. Just as Alito brought this up, express he raised the idea, well, what about protections that apply to any conduct of a president while in office that plausibly involve official actions of the president and his official responsibilities or authorities as president, and so a sort of a generous envelope of protection, the outer reaches of which would be is there a plausible argument
that this is an exercise of the president's constitutional authority. Certainly there are members of the Court, the liberal justices Justice Kagan, sod Mayor, and Jackson, who seemed very clearly opposed to any idea of that kind of immunity, and they also pushed back on the notion that the case was really properly before the court and that the Court needed to go through all of these issues. We'll see how they end up in terms of where they might fall on this
spectrum of different layers to the argument. I really think even they might agree on some kind of protection for the core functions of a president, some kind of inquiry as to whether functions at issue are official acts of the president or personal acts of a candidate for office. And even the President Trump's lawyer agreed that certain of the charges in the indictment involved the personal actions of President Trump
is a candidate for office. So even under President Trump's own attorney's view of the case. There are certain aspects of the indictment that could still go forward, at least potentially, but all of that would require a careful reassessment by probably by Judge Chuckkin in the first instance, and probably would go back to the district court for that kind of line drawing and consideration. So a lot
of complicated issues. I think you'll see a lot of commentators are kind of surprised that the court first of all took the case, and second of all, that gave so much that President Trump's arguments got so much traction. So I think you have to say, at the end of the day, it was a very good day for President Trump in the Supreme Court because it's definitely not a frivolous claim, not a frivolous argument on his part. The Court
gave it serious consideration. A number of justices are clearly concerned about the potential impact negative impact on future presidents. And there really seems to be some scope of or at least some serious interest in identifying some scope which you might call qualified immunity or immunity of some form for former presidents. So that's a huge
deal. This could be a historic decision from the court. Certainly, the issues being addressed are about as important as they can be under our constitutional structure, and so I just I just have to think that, you know, for that reason, I would say President Trump had a good day in the court. His lawyer John Sower did a really good job addressing all these issues. I think it was it was something of an exciting argument. It was
a rich argument in terms of all the issues that were addressed. I believe in both sides, both lawyers on both sides presented really strong arguments from their perspectives. I think the court probably felt it got everything it needed out of the oral argument, and I don't think you could say that for a lot of cases really at the end of the day. And so it'll be very interesting that obviously the opinion this is going to be a contentious one, and
I doubt it will. It will probably come down the very last week of the term, probably in late June. But you have to say, right now, the tea leaves are looking better for President Trump than I think a lot of commentators thought they would going into this in January. Well, Steven, thank you so much for joining us. We will definitely be looking forward to what happens at the end of June and and kind of the fallout of this case. Thank you so much for joining us. Oh my pleasure.
Thank you, Kyle, take care. Thank you for listening to this episode of SCO Discast. Scot Discust is a project of the Federalist Society, a not for profit educational organization of conservative and libertarian law students, law professors, and lawyers, founded upon the principles that the state exists to preserve freedom, that the separation of governmental power is essential to our constitution, and that it is emphatically the province and duty of the judiciary to say what the law is,
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