Trump’s Immunity (with Joyce Vance, Rachel Barkow & Elie Honig)

Once upon a time, Disney was a motion picture studio in a sea of Hollywood studios doing something nobody else was doing. Disney's business is memory making. Disney's business is tradition. But here's the thing about kingdoms. They don't last forever. To survive, Disney had to grow. But has that tremendous growth eroded what made Disney Disney? I don't know if the world cares that this is a Disney movie anymore. I'm Joe Adalien. I'm hosting Land

of the Giants, the Disney Delama, from Bolcher on the Box Media Podcast Network. Follow Land of the Giants wherever you listen to hear new episodes every Wednesday. From CAFE and the Box Media Podcast Network, this is a special edition of Stay Tuned. I'm Preet Barar. Another Supreme Court term has come to an end, with the

Justices releasing decisions in many high-profile cases. Just this week, the Justices issued the long-awaited ruling in the case where former President Donald Trump sought absolute immunity from criminal prosecution for his acts as President. President Biden addressed the ruling in a Monday evening speech from the White House. For all practical purposes, today's decision almost certainly means that there are virtually no limits on what a President can do. This is a

fundamentally new principle, and it's a dangerous precedent. The Justices also issued decisions relating to January 6th prosecutions, emergency abortions, and the so-called administrative state. Joining me to discuss, are my CAFE insider co-host, Joyce Vance, CAFE contributor and CNN legal analyst, Ellie Honeig, and CAFE contributor and NYU Law School Professor of Administrative Law and Constitutional Law, Rachel Barkow. Welcome to the show, a special episode of, I guess,

Stay Tuned and Insider. Lots going on. Before we start talking about the Supreme Court, and there's a lot to talk about, and in particular, a lot to talk about with respect to the finally arrived immunity decision, such as it is. We are all recording having this conversation in the 1 p.m. hour on July 2nd, Tuesday, and we should just mention in passing that one bit of legal news emerged today unrelated to the court. That is the former mayor of New York City.

The former US Attorney for the Southern District of New York has been formally disbarred from practicing law in New York. Anyone have a comment? I have a question for you, please. Yes, Emily. Do they take down Rudy's portrait at the SDNY now? That is a great question. So for people who don't know, and I don't know if it's still the case because they've moved temporarily because the original building, one St Andrew's Plaza is being renovated.

But on the 8th floor of one St Andrew's Plaza for many, many, many years, in the hallway leading to the US Attorney's office, you know, the office of the US Attorney is a wall of portraits of all people who had served as US Attorney. Going back, not all the way back to the beginning of time, but going back quite a bit. I don't know. That's a great question. Joyce, you were US Attorney, would you remove the portrait of a disbarred former US Attorney? I think I would turn it face into

the wall. You know what, you know, Mrs. Alita would do. She would turn it upside down. More options than I thought of here. I think you leave it up there like the portrait of Justice Tani that hangs in the Supreme Court as a reminder of the darkest days of the office. The professor coming in with the academic and intellectual, true, potential, or glad that we're all assembled. Let's get right into it. I'm going to do my best to

sort of describe the main holding of Trump the United States. And then we'll take it from there. So in the immediate moments after the opinion dropped and the main opinion, the majority opinion is 43 pages and there's concurrences and there's a sense. So it goes on for a while. There's that weird moment on cable television and on the internet when people don't really fully understand what it means. And I don't know if you folks had the same experience.

But in the opening moments when people are sort of reading the syllabus of the case and describing the top line, it didn't seem so bad. It didn't seem so crazy. In essence, Justice Roberts writing into six three opinion, writing for a six three court, the majority opinion, there are basically three categories of circumstances. One is where the president arguably has

core duties implicated and has conclusive and preclusive authority. With respect to those things that are core to a president's duties and obligations and responsibilities, there's absolute immunity. Second, where there are official duties or there are official actions being taken that are not core or conclusive and preclusive, whatever that means. But where the president may, for example, share responsibility and authority with the Congress with the legislative branch,

those those may be immune from criminal prosecution. But there is a presumption and we can talk about how strong that presumption is. There's a presumption of immunity, but that can be overcome by prosecutors arguing in court. And then third, there are some things that presidents do that are purely personal and unofficial. And for those things, there's no immunity at all. That on its face in the first five minutes when people were talking about it didn't seem not so to me.

What's wrong with that tripartite rendering in the decision? So I guess I'll jump in. That all was as I expected. And as I think a lot of people who are prognosticating expected that they would establish a rule for criminal immunity, that it would be more or less tied to official or unofficial acts or inner out of the scope of the job. But what followed that on closer reading was for me three, oh my goodness, revelations that went beyond that,

which we can break down, but I'll tick them off real quick. One, not a surprise, but important. They made clear that once the case goes down to the district court and judge Chuck and does her fact finding that in itself is appealable before trial, which means no chance, this case, zero percent, this case gets tried before the 2024 trial. The second one was just 2024 election. I'm sorry. Yeah, the 2024 election. I still have that psychological thing like the big crucible.

I still think of as a trial, right? From our prosecutor. It's going to be a trial and also dad Joe coming tribulation. Oh, there you go. The second, oh, oh my goodness, was just how broad the court describes the outer perimeter. And I'll leave that out there for us to discuss. But the third one, the one that blew me away was that you cannot, a prosecutor cannot even forget

about charging a president for an official act. You cannot even introduce any evidence of an official act as part of your trial to explain the narrative to give the timeline to establish motive or intent that. And that's what Justice Barrett separated herself from the main majority in her concurrence on. She thought that was too far. That one really surprised me. That has major implications. But I think we need to delay, I think that'll become more readily apparent and

understandable when we lay more groundwork. Joyce Rachel, do you have a thought of just sort of overall your reaction before we break it down? Yeah, I can jump in a little bit on the kind of the core decision. So the idea that there would be core things subject to absolute immunity. The court didn't need to decide that at all because that wasn't an issue in this case. We're talking

about things that would be more outer perimeter stuff. So I think the court was reaching out to be broader in its pronouncement in this case than it had to be, which contradicts some of the things that says in the opinion about how it doesn't want to make, doesn't want to posit what happens in this case in particular ways. But then we can pause on that for a second Rachel. So the people understand there's only one set of things that they decided with respect to the indictment in

this matter was core. And that was conversations that the president had at the time with members of the Justice Department seeking to interfere in Georgia, all those kinds of things they decided where Roberts for the majority decided that's core to the president's responsibilities. And so no way, no how can you prosecute based on those allegations and the rest of it, they're sending back to the lower court. So do you want to address the issue of the DOJ

conversations as being core somehow? Yeah, so this is the part I mean about kind of going broader than it had to. So in saying that there's like this core group of presidential powers that get absolute immunity, you might think of those as being things like ordering the military to go abroad and using the commander in chief powers, making those kinds of military decisions or the power to

veto legislation or maybe the pardon power as part of that. But the court says in the opinion, the core powers also include this idea that the president has to take care that the laws are faithfully executed, which is language from the Constitution that a certain group of conservative scholars reads in the most robust way humanly imaginable such that core presidential powers basically

means controlling the entire executive branch of government. And it's from that one that he gets the idea that any conversation he has with Department of Justice officials fall into this core group of protected activity that gets absolute immunity. So no matter what insane conversation he would have with his attorney general, that would be something that could never be the basis for a criminal prosecution. And as Ellie alluded to, you couldn't even use that conversation as evidence

related to unofficial acts that he takes. Like if he says to his AG, hey, AG, you know, I'm thinking of murdering my wife. And then there's a case against him. It's a murder. Trump would say take my wife, please. And it would be understood. But the crazy thing about that is that if you could bring a prosecution for murdering the wife, that's unofficial act, which you couldn't use evidence of the conversation with the attorney general based on the opinion that the Supreme Court wrote.

So it's kind of cabbning off this core executive activity that is not only immune from criminal prosecution, but exists in this kind of airtight bubble that we can never know about or use in cases going forward. And that was, I agree with Ellie. I think that was an extraordinarily over aggressive, ridiculous policy wise, no basis in constitutional text history or anything else. That's just the court reaching out to decide a very sweeping thing that is going to have enormous

ramifications going forward for the country. Joyce, you and I were texting before today, I guess between yesterday and today, one of the implications, I wonder what you think of this. One of the implications of this of this core area that we've been talking about is conversations with people within the administration that the president has are immune based on that and other factors with this decision, render Richard Nixon immune based on what he did in Watergate.

Yeah, you know, that was one of the first thoughts that I had as this was coming down, right? If Richard Nixon had only known, he would have never left office. Rachel's hypothetical, by the way, is one I've been playing with all their Rachel mine isn't nearly as much fun as yours. I was imagining

the president goes to the attorney general and says, hey, let's rob a bank together, right? But it's it's that same notion of how artificial this is and how hard this court worked despite at the end of his opinion, you know, the chief justice spends some time saying, we're not focusing on the individual involved. He doesn't really even say his name, you know, we're writing an opinion for the future and talking about future presidents and not focused on current personalities because

that would be bad or dangerous or whatever the argument that he makes is. But in reality, it's hard to avoid the impression that they were doing everything they could to make sure that there wouldn't be a timely prosecution of Donald Trump. And I don't say that lightly and I don't particularly enjoy saying that because I'm sort of hardwired to be deeply respectful of all courts,

but especially of the Supreme Court. But reading this one was really troublesome and I'll tell you, I just want to quickly go back to your first question, you know, the sort of when did you know that this case was going to be a problem? And for me, it was on page six. I'm sort of reading through real fast. And the court says, we conclude that under our constitutional structure of separated powers, the nature of presidential power requires that a former president have some

immunity from criminal prosecution for official acts during his tenure in office. And I write, I'm okay through here because I am clearly there should be some scope of immunity. Then the next sentence, at least with respect to the president's exercise of his core constitutional powers, this immunity must be absolute. And I write, this is bad. And I mean this is bad because I have in my mind, right, this notion of a president who murders or does something horrible like

starting an insurrection. And he shouldn't have absolute immunity. There has to be some mechanism. But it's the final sentence in the paragraph where I realized we're in big trouble. The chief justice rights, as for his remaining official actions, he is also entitled to immunity. So I suddenly realized that for this entire scope of official actions, there will be immunity. I write in the margin, by the way, this is abomination. Apparently, I'm never one for hyperbole.

But there is a sense early on in this case that the court is going to do exactly what it did, that it's going to define immunity very broadly by defining official acts very broadly, far beyond what we would commonly understand that to mean. I want to drill down another hypothetical for the group and talk about some controversy that

has erupted since this decision because people are reading it differently. So at Oral Argonne, people will remember there was a discussion of the hypothetical in which a sitting president views his political rival as a threat to national security or to the country and orders seal team six to assassinate his political rival. Okay. And that hypothetical is not addressed directly in the

majority opinion. I'm wondering if this group thinks based on the definition of official act and based on the bar against delving into motivations on the part of the president engaging in some core conduct, which is the protection of the national security. However, the president might define that or interpret that. Would this opinion allow that? And to the extent people are saying it would, I'm seeing Trump supporters and conservative folks saying that's a garbage reading of the majority

opinion that's not within the core power. What's the right way to read it with respect to that extreme hypothetical? So can I say something on that? Because I think it's telling that that is a hypothetical that is in the descent. Justice Sotomayor has a list of things that she says will be immune after the majority's decision becomes the law. And she has that as one of the things. She has a list of things that president could do except a bribe for a pardon immune order

the seal team to assassinate a rival immune. She has an immune immune immune. And what I think is telling is based on Supreme Court practice when a descent raises a point like that. If that's not right, the majority would clearly and expressly say so. Right? That's the easiest thing in the world to do. Because they do it on that we'll get it to it. The majority does it with respect to a dispute about bribery and the difficulty of proving bribery. I should mention

to the audience in case they don't otherwise know. Rachel, you clerked on the Supreme Court for Justice Scalia. So you have some sense of how these things work. So is the only explanation for a non-response that they accede to the point? I believe so. I think that silence speaks volumes because the most persuasive thing you'd want to say in response to something like that is don't be ridiculous. Nothing we've said here would authorize that. And he doesn't ever say that.

He says that descent is engaged in quote unquote fear mongering. But he never actually addresses that specific line of attack. And I think that's because that line of attack is correct. And that is also how I read the majority opinion. It falls into that core power. It would be an exercise

of commander and chief powers to give a military order. And then that order gets carried out. If the military leadership doesn't say no and they actually go ahead and do it, I see no basis under the Supreme Court majority's opinion for bringing any kind of criminal action on the basis of that, given everything they said about core powers and absolute immunity. I'll be right back with Joyce Rachel and Ellie after this. President Biden was working all through the holiday weekend.

On a call with Democratic governors, he apparently said his help was fine. It's just my brain. And at a rally, he said he beat Donald Trump, but in the past. Nevertheless, in an interview with George Stephanopoulos, he said it would take divine intervention to get him to step down. He also said his terrible debate performance was his fault. Nobody's fault mine. Nobody's fault for mine. Everyone agrees, sir. Not my fault. Nobody

else is fault. Joe versus himself, you can find it right now over at today. Explain we drop an episode every afternoon, Monday through Friday. You'll love it. This is a public service announcement from unexplainable. A yarn. One simple action connects you across species, across millions of years of history. You are a llama, an English bull terrier, a little kitty cat, a Tasmanian devil. Because yawning is a secret superpower. You can change the temperature of your own brain.

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and why you're probably yawning right now. Follow unexplainable wherever you find podcasts. Is anything stopped the president? Let's assume the hypothetical of president Trump. Regaining power through the election in November. Not ordering seal team six on a political rival. But ordering the FBI to use some pretextual basis material witness warrant or something else.

To round up people he doesn't like or political adversaries of his who he will say harm democracy and trying to undermine democracy and the government and put them in jail while those things are litigated. Can he bear any criminal responsibility for undertaking that round up under this opinion? Anyone?

It's a great question. I was going to first answer with the obvious answer, which is there's all the other guardrails, which were well aware of, you know, prosecutorial discretion, resignations, grand juries, etc. But that's I get your question is another one of these confounding hypotheticals, along with the ones that justice so to my or poses. I mean, I believe that if the seal team six hypothetical were to come up, certainly justice so to my or would conclude that's not an official act.

I think I would conclude that's certainly not an official act. But Rachel makes a good point. I mean, if you take the letter of the decision here and motivation doesn't matter, you're just looking at the means and mechanisms. What circle of power is the president operating in here? There could be an argument for it. And I do think that's an interesting part, maybe a problematic part of this decision throughout the focus throughout in deciding whether something's an official act or

not is always on who is participating in the conversation. But not what is the substance of the conversation. I expected it to be quite simply if it has to do with with government with legitimate exercise of government, it's covered. And if it does not have to do with legitimate exercise of government, it's not covered. Instead, it was just the question is really just who's talking to who? If the president is talking to the AG, almost certainly covered. If the president is doing his

military thing as commander in chief, almost certainly covered. And that I think leads us to some of these really difficult, maybe problematic results that come out of these hypotheticals. Yeah, part of the problem is this line in the opinion I'm reading from the syllabus. We've already said this part in dividing official from unofficial conduct courts may not

inquire into the president's motives, problematic for many reasons. But then they also write, more make courts deem an action unofficial merely because it allegedly violates a generally applicable law. Right? So just because you are able to allege in good faith and with great power and persuasiveness that enact violated a crime, that by itself doesn't take it into the land of unofficial conduct, which isn't that kind of circular? Am I missing something? No, I mean, I think you're dead

on the money. I always thought about the distinction between unofficial and official conduct as being the distinction between acting as president Trump and acting as candidate Trump. And the court just doesn't see it that way. Shame on them for not adopting my views. But they let Trump get away with a lot of what I would call campaign conduct under the rubric of either who he's having the conversations with

or its position within the federal government. And I think, you know, that's an awfully strange construct for them to have come up with here. And I'll just add that I'm not, I don't feel that there are that many other guardrails in place for the scenario of kind of, you know, rounding up your enemies and trying to get them prosecuted because I think the guardrails in the past that we've

always relied upon were these decent public servants who take an oath to the Constitution. And you know, at the same time that the Supreme Court decision is being handed down, there's an entire project by Heritage and the Trump campaign project 2025, which is to install loyalists into every significant one of these positions, people who swear their loyalty to Trump, not to the Constitution. They're looking for people whose primary characteristic is that they're going to do what Donald

Trump asked them to do. So if we would normally think about those guardrails, I think they're all coming down because that is exactly what is being the architecture that is being put in place right now is to have a whole bunch of people who just say yes to whatever he asks for. And so we won't have those guardrails either. And Rachel, I think that's dead on the money, particularly because Project 2025 website there for everybody to read. And I encourage people to do it. It talks about this will

begin on day one, right? The implementation is over the first 180 days. And it's not just the political ranks at the Justice Department and other federal agencies. It's the career ranks too because they have this plan to change how the federal bureaucracy works in essence, inserting loyalty tests for career employees. This stuff I think removes all of Ellie's guardrails. Can we talk about a few more hypotheticals that are not such hypotheticals?

On the issue of first the self-parton, which at point and also our friend Rachel has some expertise in pardon power, am I correct that this opinion, the majority opinion, basically green lights, the self-parton by President Trump or any other president of his own potential. So I'm not as sure of because there is language in this opinion that says the courts still say the scope of what presidential authority is at the outset. And then after they have decided that

yes, the president has the authority to do X. It falls into this immunity rubric. But the question of whether self-partons are part of the pardon power has not been litigated. And so there is still an opening for the Supreme Court to say that's not part of the pardon power. And if it's therefore not part of the pardon power, then it wouldn't be subject to this kind of immunity decision. Now the motivation is unnecessary to know. Right, we don't have it doesn't matter what the motive is.

That's just like a pure jurisdictional type of question to say. Let's talk about a different scenario, which is also discussed and argued about back and forth between the competing opinions. If someone bribes President Trump or any president in exchange for a pardon, can he be criminally responsible for that or is he immune? And if he's potentially criminally responsible given the other part of the holding about motivation and evidence, how would the prosecution prove it?

See, I think that is a very difficult case to bring now in light of the fact that they said you can't use any you can you can say yes, this pardon took place, but you can't bring in. That's the back and forth that Robert seems to have engaged in with. Right, and that's where just they they lost justice Barrett. So you know, it's not like they lost a liberal here. This is a five four on this one. And the idea is it'd be very hard, I think,

to make out that quid pro quo case. And by the way, there's another case this term that says if it's a gratuity, it's not covered either. So so you kind of need to know. You kind of need to have some information about when the official action happened compared to the money paid, right? Because the court is now held in a different opinion as just mentioned that money paid after the official action is just just like a tip. Right. If you liked your service by the president today,

you can leave 20 to 24. All in gold bullion, please. Yeah, well, that's Mininda's. Well, I will just say on the pardon front, you know, I think that that one unlike the self pardon, but the idea, let's say he decides on day one, which he's alluded to the fact that he's interested in something like this. He's going to pardon all the January six people, you know, and then, you know, afterwards, he fundraisers from them. He gets he gets money from them. They're all pouring in dollars in

his campaign. I don't see how you successfully prosecute that. I'm going to defer to the people who have, you know, prosecutorial experience here, which isn't me, but I would think that's a really hard case to make when you're not allowed to use any evidence around the giving of the pardon itself. What's the logic of not being able to use the evidence? I mean, we talked about what was necessary, not necessary to decide, including the core category idea, but this this step too far.

Do you think you think it was an error? Do you think they're trying to protect something? Because that's one of the weird as Ellie mentioned at the very outset of the of the program. That's one of the oddest things about the opinion. Is there any other explanation you folks have about what the hell was going on in their minds? Robert says pretty explicit about this. He's

protecting the imperial presidency, right? And he says that to provide immunity from prosecution, but to permit the evidence to be used, would really sort of make a mockery of the whole notion of making sure that the presidency, the president was free from interference by stuff that might make him look over his shoulder and say, she maybe I shouldn't do that because it might be a crime.

God forbid, according to Roberts, that our president should ever do that. We don't want them to feel constrained in any way by this notion of what's legal and what isn't like mere mortals are. And so this evidentiary argument, which is I think really surprising, right? We have a criminal justice system where you can use uncharged conduct to prove up a whole horde of things at trial, commonly used for motive, for intent, to prove identity, all sorts of things. But now there's a

special carve out just for presidents. And I think this is one of the most shocking parts of the opinion. As you point out, Justice Bear doesn't join making it five four, which means that Sam Alito is the key vote on this one. And a Rachel may have thoughts about whether here or Justice Thomas should have recused on this case. But the majority gets pretty slim here. Can I sketch out a scenario to explain maybe or predict maybe how this would work in practice?

So it won't necessarily be the case that Trump, if he's reelected, wakes up one morning and decides surround up his political foes or pardon somebody in exchange for a contribution or whatever the case may be. What he may do is ask his handpicked attorney general to ask his handpicked assistant attorney general, the office of legal counsel at the Justice Department to do a memo, to do an opinion in light of this case, this immunity case. Is it appropriate or proper and lawful?

And does the president have criminal immunity from any action relating to X, Y or Z any of these horrifying scenarios we talked about? And if it is the case that the Office of Legal Council writes a a client and compliant opinion endorsing based on this case and others that the president is fully free to do those things. Doesn't that provide an extra entire layer of immunity in practice from criminal prosecution later? Because the president can say he relied on counsel.

I think that's true. And I think I'm glad you brought up the Office of Legal Council because one thing I did want to highlight about this case is we have way too many people on the Supreme Court who served in that office and who served in executive branch positions where basically their whole job was to kind of worship the president and think about presidential power. And I think

that's how you end up with a decision like this. Like these are people almost from birth, okay, or right after they graduated from law school who just made it their life to serve executive power. And I actually did quite telling, yeah, Robert's, Alito, Gorsuch, they all worked, they all worked

for presidents in kind of important executive positions. And so the idea of the president as the most important actor and government and thinking of the president needing, you know, energy and dispatch and secrecy, et cetera, you know, that is what they have been nursed on from the very beginning of their legal careers. And I do think it's interesting in telling that the conservative who broke ranks from that is the one person who really didn't have that kind of experience.

You know, that was not just as Barrett's experience. And so she sort of saw this for what it is, which is kind of loony. That like, how could you possibly need to carve out that much immunity, you know, not even allow it to be used as evidence is a little nuts. And I think the way you think that think of it as not nuts is if you spent your life basically focused on what can I do to make the executive the president as powerful as humanly possible. And so I do agree with you that they'll

definitely put more people in OLC just like those justices. That person will probably then become a justice, you know, whoever writes that memo. They'll probably be next in line when the next spot opens up. And you know, and I think this is what this is how you create an architecture of an insane quantity of presidential power is you you have those kind of people. You put them on the court

and they issue decisions like this. One question I had before this opinion came out is, is it going to apply to only the president or to all federal executive branch employees? If we look at civil immunity, which has been around since 1982, Nixon V Fitzgerald, I mean, we all, I think at some point benefited from civil immunity in our role as DOJ employees. We couldn't get sued by people who we subpoenaed because we subpoenaed them or people we locked up from prison.

Otherwise, I'm sure we all would have been sued many, many times. And when we were, they were quickly dismissed. I was halfway expecting this opinion to apply to all federal, at least executive branch employees. So they can't be charged criminally for what they do as a prosecutor or something. But the Supreme Court chose to make it for now, at least, apply only to the president. I could definitely foresee a day where their charges brought against some other federal official. And that

person will argue for an extension of this case. Yeah. So we talked a lot about the core category where there's absolute immunity. Then there's this other sort of more murky area, although I'm not sure how murky it is, where the court said, we serve the role of final review, not first view. And so with respect to the case at hand before Dr. Chuck in in Washington, DC, with respect to all this other stuff, we're sending it back to her to make a determination.

And we're going to give her some guidance. I don't know how good that guidance is. With respect to all these things, including the fake electors and other bits of conduct outside of conversations with the DOJ, what kind of guidance does she have? And what is our expectation of how much she will as an initial matter, be forced to gut Jack Smith's case in DC. And ultimately, what might be gutted

if it comes back to the Supreme Court? So I think if you sort of do this mental exercise, I can see a world where the end result of this process after Judge Chuck and applies this new case and after it goes back through the appellate process, back up potentially

to the Supreme Court, where Jack Smith is not left with enough even to proceed on his case, because let's sort of take the first category we've been talking about the automatic core duties that applies the Supreme Court says the conversations, interactions between the president and DOJ. Okay. So pull out the entire piece and remember can't even use it as evidence, pull out everything from this case having to do with Jeffrey Clark and Trump trying to get DOJ to investigate fraud and

Jeffrey Rosen. We all remember this whole sort of sequence. That's out now. If we get into this middle category that you're talking about now, pre the sort of presumptively immune, the court specifies that conversations between the president and the VP are presumptively, not automatically, but presumptively immune, but they're hint, hint, wink, winking the judge like we expect that to be

out of this case probably. So there goes Trump's whole effort to pressure Mike Pence and another thing that the Supreme Court singles out and says probably not going to be good is his speech that he's very broad right to make speeches and to engage in speech as president. So there goes your likely your ellipse speech on January 6. I mean, take those things out and this is a skeleton of an indictment that I'm not sure can even make it to trial.

I was just going to add the one thing from the Barrett descent or not descent, but her concurrence on this point, which is she says it's kind of weird that the majority kind of points out the things that are going to be immune, but doesn't identify anything that is fair game. And she says, you know, she uses the example where she says the indictment alleges that the president asked the Arizona House Speaker to call the legislature into session to hold a hearing about election fraud

claims. And she says the president has no authority over state legislatures or their leadership. So it's hard to see how prosecuting him for crimes committed when dealing with that when unconstitutionally intrude on executive power. So, you know, that could be something that could remain in the Jack Smith prosecution, but it's interesting that she said that and the majority

did not say that. Because again, I would think if they wanted to write an opinion where they're not being accused of looking like they're wholly in the tank for Trump, that they might want to reach out for something that is still viable in this case. And you know, she did that. She did that.

She had an example of that. And they don't say anything about that. You know, they don't take her up on that offer to kind of show, look, we are not saying everything's off the table, which makes me wonder if there's actually not five justices to agree that even something like that could be part of a case. But how's this going to play out as a pragmatic matter? So it goes back

to George Chukkin. She can decide at any moment going forward to have a hearing, some proceeding, where the parties will have an opportunity to argue that based on this sweeping immunity decision, you know, these allegations of the Trump team will argue need to go. Maybe the argue more forcefully and more expansively than then Ali just did even. And the government will say, well, no, we can see that, you know, these three counts have to go or these seven allegations have

to go, but we have an argument in favor of overcoming the presumption. On these other things, and they have a back and forth, and they argue about it into tough argument. And then George Chukkin splits the baby in some fashion at that moment. And that's months from now probably, right? Not weeks, probably months from now. Then the Trump team appeals that. Doesn't go right back up the chain for another several months of proceeding before it gets to the Supreme Court again and before there's

a trial. Well, it does. And the court makes that clear. I almost read the opinion as a little aside to Judge Chukkin, where they tell her. Yeah, we'll see later. Yeah, you're you're our fat finder. You know, take that black robe off. You have a role here and that role is to get us some facts. And they actually chastise her a little bit for not making these sort of distinctions between official and unofficial acts in the first go round. And so they suggest that that's what they

would like to see out of her this go round before they get back and take a stab at it. And look, to the point, Rachel was making her surprise that the court didn't try to do something so that they didn't look totally in the tank for Trump. Well, um, subtext here, they look whether they are or not to be completely in the tank for Trump. And given the way they analyze a lot of these

issues around whether something is official or unofficial. For instance, this very broad reading they give to presidential speech that could mean that the speech on the ellipse is off limits for Jack Smith as an explainer for everything that comes afterwards. The notion that they will ultimately decide for themselves whether not Jack Smith can move forward on any conduct or use any evidence. I think is something that means we should pay attention to Ellie when he says

there might be nothing left of this case when all is said and done. And can I just add to that judge Chuck can made a tactical error here. She should have been able to see around two or three corners or maybe one or two corners. And as proof of that, I pointed it out in a cafe brief shortly after this happened when and I'm no suitseyer when judge Chuck and issued her opinion on Donald Trump's immunity motion, all she said was there's no such thing as immunity across

the board immunity. And I thought, well, that's that's good. That's part A. Now, let me turn the page to part B where she says, and even if there was, I hear by fine that A, B and C are in and maybe D is out. That would have saved a whole round of this because what the court would have been reviewing now would have been her prior determinations. So I at the time said, why is she not deciding this? And in fact, the court of appeals tried to sort of back cover it for her. They said, well,

we find that A, there's no immunity. B, even if there is, he's outside of it. And there was some C, I forget what it is. But I think they rejected Trump's impeachment argument. But why would judge Chuck and not have done the same thing that federal courts do when someone's trying to remove a case when the Fulton County defendants, Mark Meadows and Jeffrey Clark wanted to get their cases moved

over to federal court. The test is similar was does the charge relate to something within the scope of the job and the federal judge there in Georgia's because they missteven Jones held a little hearing. And he said, well, we've had our hearing, Mark Meadows testified and I find that he was outside the scope. He loses. If Judge Chuck and had taken a week or two weeks and done that, it would have saved us a whole round of appeals and it would have set this case on a much more plausible, much more

quick road to trial. So I think that was a not not any out of any bad faith, but on her part, but I think it was an oversight. So I'd like to get the opinion of the sustained panel on how this opinion affects not just the DC case, which we've been discussing at length, but the other three criminal cases as well, including the one I'm ahead before we do that. Rachel, do you have a thought

on Justice Thomas's concurrence here? Well, he wins the Hutzpour prize for on his own, not joined by anyone else, just deciding, hey, I want to look into whether we could even have a special counsel investigating the president at all and deciding, no, we cannot, that that is unconstitutional. You know, it's just kind of an egregious act of, was that brief? You know, I don't think so. It was not it was briefly raised in oral argument, but not brief

as part of the case. And it's a live issue in the case before Judge Cannon, though, in you know, is the left side that opinion, right? Yes. That's what it felt like to me. Yeah. It felt like, hey, Judge Cannon, just in case your hands are full and you don't have time to research this issue, allow me to go ahead and write it for you so that it's pre-decided and you can just use this. This is just as Thomas just going, going like, you know what else is on my

mind? Like, get off my lawn. Get off my lawn concurrence. Can I ask a dumb question, a dumb law student question for the group and if the professor wants to answer it? Actually, everyone here is a professor of some sort. I think only one of us has tenure, by the way. I'm not really. I'm a teacher. What's the value of Judge Cannon? If she gets to it, citing a Supreme Court concurrence on a point with which no other justice agreed. It has no presidential value, no authoritative value,

so it would be like when you cite anything as just persuasion, but not as authority. But I think, you know, she would certainly be able to borrow from the legal analysis. He went through a lot of different, you know, sources and constitutional arguments to get to his result. So, you know, he did legal legwork in much the same way as like a conservative think tank. Like, do it. And so that's just all out there for the taking. It's not, it doesn't decide the matter.

It doesn't have that kind of authority of a five justice vote, but it would be helpful to her. I'm sure. Right. You should get off my lawn because the lawn is mine. That's some other stray thoughts I had. Trampling was frowned upon in the history and tradition of the country at the founding. You know, Justice Thomas is our circuit justice in the 11th circuit. And of course, personality shouldn't play any role in cases, but when judge canon

cites to that concurrence, which no one else joined. And then it goes up to Atlanta. We're talking about, you know, judges who have close relationships with the justice who is the decider for our circuit. And, you know, I mean, I worry and I hope I'm worrying for nothing that we are in a moment, as we get closer to the election, where there may be some judges who aren't setting aside their futures and their careers and who are contemplating not wanting to be on Donald Trump's

bad side. I've always felt very good about this circuit was very certain that they would rule against judge canon just like they did just as quickly as they did. I have to confess I'm growing more and more concerned the closer we get to this election. Let's talk about the impact on the three other cases. So as everyone in America and in the world knows, Donald Trump was convicted. There was an appeal that will be filed and that'll be

addressed by the Pelican court in New York. But there's a motion to set aside the verdict. I don't think we know the substance of it fully yet based on this immunity to decision. What's the realistic impact of this decision on Trump's conviction at the Manhattan D.A.'s office case? Well, I'll take a crack at that. It gives him a shot. I think a long shot, but it certainly gives

him a basis. What's the argument? I thought it was already been adjudicated that the things he did in that case, the payoff and the fabrication of records and all of that was personal in nature. Here's what I think the argument. Well, first of all, it's substantial enough that it's already upset the sentencing day almost certainly. The D.A. has agreed that the sentencing day should be pushed back. Actually, guess what? Ellie breaking news. The criminal sentencing of Donald Trump

in New York has already been postponed to September 18th. So there you go. Trump's team is going to argue that some of the evidence, a small portion, 5, 10% had to do with Trump's conduct while he was in office. He, for example, had meetings and conversations with Hope Hicks, who was his comms director in the White House. He's also argued his one of his Trump's attorneys was on air right before my segment last night on CNN and said, well, he used the White House Twitter feed to manage

his public messaging. That does not convince me at all. And I think what Judge Mashad will say is all of this had to do with payoffs, you know, personal payoffs to a porn star and therefore not official action, but to go back to a point and it was already is dedicated as such when they tried to remove it to federal court. Right. Uh, yeah, by Judge Hellerstein, I think that's right.

But to go back to Rachel's description, all of our description of the yesterday Supreme Court ruling, if all you do is put aside any question about motive and just look at the who's talking to who while a president just in a vacuum, a president having a strategic conversation with his comms director about how do we message X to the public? You could arguably, you know, sort of square peg into

a round, how you know, force it into what the Supreme Court came down with yesterday. Now, I don't think this argument's going to succeed in front of Judge Mashad or probably the New York appellate courts, the state appellate courts, but you know, who's lurking over all of this and if they want to take an aggressive reading of their own decision from yesterday, again, I don't think it's likely Trump gets his conviction overturned ultimately as a result of this, but it gives him a quiver,

an arrow, a quiver, you know what I mean, a thing to shoot out. It will make me quicker. I'm not an archer. Anyone else on the on the Manhattan case? So look, I will say just real quickly, I think that the DA's office is doing the right thing here. They agreed that Trump could have until the 10th, which is the day before sentencing was supposed to take place to set out their argument. They've

asked for two weeks to respond. They're treating it seriously. There will be a good record so that when this ultimately does go to that, I've re-tower in Washington, at least it'll be clear what the arguments below were and what the decision is based on. More from our conversation after this. Let's stick with stay court proceedings. In Georgia, the works have already been gummed up because of

all sorts of other things. How's this going to affect that? Noting, by the way, that some of the allegations and the conduct in question in the Georgia case overlap with and are aligned with some of the conduct and allegations in the DC case that we've been talking about this entire

program. Well, so look, I think a lot of this comes down in the first instance to how the judge views it because one feature of Trump versus United States is that there is a lot of discretion invested in judges to make these distinctions between official and unofficial conduct and

something we have the specter of is different judges making different rulings. But at least in the first instance, and the majority opinion goes to a lot of trouble to talk about the complexity of these arguments and how official and unofficial conduct might be intertangled and courts have to sort that out. And nowhere is that a bigger problem than in the re-going diamond that just

contains so much information, so many different defendants. And so I think we're looking at a lengthy process in front of the trial judge here, although at this moment he lacks jurisdiction to move forward because the issue of whether or not Fanny Willis can continue to participate in the case

is still on appeal. Yeah, and with respect to the Florida case, I would expect the argument for Jack Smith to be, well, the crimes are charged in terms of timing and the sequence against a private citizen who didn't have presidential progatives when he retained and continued to hold on to and lie about and obstruct with respect to these sensitive national security documents.

Does that win the day? Isn't part of what's an issue in that case is if he had the authority to declare everything declassified and we're not allowed to look into his motive, you know, that seems to fall into that absolute immunity realm. So I think that complicates things.

But that's crazy. So that sort of means that if there's any even remote ridiculous outland as far-fetched argument that you undertook some action as president that would excuse and justify an ongoing crime after you became a private citizen, that can be the basis for a full immunity defense and no one can even question or ask, make inquiries about it. That would be the result of that posture, would it not? I think so and I think sadly that is what the majority opinion is saying.

So is that your way of saying that the Mar-Lago case is done? I think it's tough. Anyone else want to give us some hope on the Mar-Lago case, at least going forward and we have a Dan Court? I should say by the way, I didn't have a lot of hope in that case anyway, it's given the judge, but so maybe I'm the wrong person to ask. You know, maybe I'll be a little bit more optimistic on this one. To the extent that much of this conduct happens after Trump leaves

office, I think that you can make an argument. Judge Cannon will not make it by the way, so the 11th Circuit is going to have to be the hope here, but you can make an argument that the government has sufficient non-immunized evidence to move forward on these charges. Whether or not we're going to actually see that argument surface is a different question, but I think that there's a possibility. So, you know, I think we're all still digesting the opinion. Lots of different points of view.

We'll keep talking about it, but we should talk about a couple of these other cases I mentioned at the outset as well. There's another criminal case called Fisherview United States, which is related to the question of what it means to obstruct or impede an official proceeding.

Does anyone want to tell us what the holding of that case is? Well, the court decided in Fisher that given the language of the statute and the way it is constructed, that the statute is limited to impairing or obstructing documents, records, objects, tangible things, and doesn't include the idea of interfering in some other catch-all way. So, it's not a constitutional question like some of these other cases that we've been talking about. It's strictly a matter of how you

interpret a statute, correct? Correct. I, for one, think the court got this one right. And I think that the concurring opinion by Justice Jackson is really a tour de force in terms of how she describes the legislative background of this statute and why you wouldn't want to read it as this kind of broad, all-encompassing, 20-year maximum, you can be charged with this thing for impeding any kind of official proceeding. I was disappointed that nobody cited the rule of lenity because I think

that would, that would be really helpful here. Yeah, I was wondering that. Can you remind people what that is? So, the rule of lenity would say if you're not sure what a statute means, it's ambiguous, that the tie goes to the defendant and you take them more narrow interpretation. And that I think this is a case that's a perfect candidate for that. And weirdly, that is not what either the majority opinion or even Justice Jackson's opinion says about this statute. They think

it's just, it clearly doesn't cover it given the language of the statute itself. And then if you take Justice Jackson's opinion, also the legislative history and the background of it. But I do think they get to the right result here. And I will just say, you know, I get it when you think about it in the context of January 6th and definitely wanting to make sure that the people who engage in that activity are appropriately charged. You know, there's a temptation to want to read this

statute in a way that that covers them. But you really need to think about how statutes apply in all cases and going forward. And if you read that section about, you know, otherwise obstruct influence, repeat any official proceeding, you know, that is going to include any kind of protest activity. And protesters, you know, are of all political stripes and persuasions. And you have to imagine what this looks like in the hands of prosecutors who might want to really come down hard

on other kinds of protest movements. And I think you absolutely should take a narrow reading of this statute if Congress disagrees and does want to create a really broad 20 year maximum that includes potentially prosecuting people for protest activities to stop a proceeding that they don't like. You know, Congress can go ahead and fix this if they think the court got it wrong. But I actually

think the court got it right. We should point out, by the way, as you mentioned in passing, that at least with respect to one of the justices, Justice Jackson joined the majority and Justice Barrett joined the minority in this case. So this unlike the immunity decision and many other decisions we've been talking about during this term was not party line based on which

president did the appointing. Let me offer our listeners a little sort of rule to go by. And this applies going back maybe 20 years anytime the Supreme Court grants Sir and takes a case having to do with whether a criminal law, especially a corruption related law, but whether a criminal law generally will be applied broadly or narrowly bet on narrow. It almost always comes out narrow. We have direct experience with that. Yes. Here's the question I have. And I asked another guest

in a different context. This thing. And I don't know that I come out the way you come out. necessarily Rachel, but I think it's not a crazy decision. Either way is plausible. How you define what otherwise means is otherwise mean there's a whole slew of ways in which you can violate the statute that are different from what language came before or is the language after otherwise happened by what came before. Both of those are not crazy ways to interpret the

statute. And as the court points out, the DC Circuit, when it went the other way, found that the word otherwise means that the provision unambiguously covers all forms of corrupt obstruction of an official proceeding. And I keep getting struck by case after case after case, including this one where a court sometimes even a divided court finds that something is clear or something is

unambiguous. When the mere fact that if you assume people are acting in good faith, which is not always true, but you assume other judges and justices are acting in good faith and have legal training in our smart. And they think that there's a reasonable interpretation to the contrary. How can you characterize your reading as unambiguous? I think they do it because they do know the rule of let it is lurking in the background. If it gets to am big, you know, if it's ambiguous,

they really should I say gaslighting. It's a little, it's a little nuts. And it happens again and again and again. No, if even when we get to Chevron, right, there's a line by Judge Roberts phrase is something, you know, it's always know the APA makes clear that X Y and C. Well, for fricking 48 years, it wasn't. So I don't know. I was wonder how you explain that to lay people who have read the

Dickens phrase that sometimes the law is an ass, isn't it? By the way, there would have been a way to write this statute clearly to land on the result where we now are, which is rather than or otherwise in its obstructs and peds, it would just be or similarly obstructs and peds, right? Then we would have been like, Oh, okay, I know what that means. I mean, similarly sort of a weird word to put in a statute. But otherwise is almost inherently ambiguous the way it's used here. Can I ask you a

question, Rachel? This is for you. Yeah. How would justice Scalia have decided this matter? I would like to believe that he would have seen this as a rule of lenity case because trivia, when he was on the court, he was the justice most inclined to use the rule of lenity. And he read statutes in favor of criminal defendants using the rule of lenity more often than anybody else. So I think in this case, he would have been in with the majority. And I'd like to think he would have been the one

who cited the rule of lenity here, but who knows? Look, we used to use, and I'm sure I'm speaking also for Joyce and for for Ellie. We made decisions and obviously it's not formally the rule of lenity that's applying really as a legal doctrine. But in matters where it was a very close question, do you charge? Do you not charge? And some people thought it was too close for there to be a charge based on the evidence and the law that you didn't charge. It was like the tie goes to the defendant

in those cases. And I think that that makes not just logical sense, but sense in terms of fairness and justice too. Again, I'm not pronouncing a view on this one. And I'll just add that I don't think that this case will be devastating to any of the January six prosecutions. Unlike what we were talking about in terms of the aftermath of the Trump immunity case and prosecutions against him personally, the cases against the January six insurrectionists, there's all kinds of other

statutes to charge them with very few of the cases involved just this as the charge. This is easily addressed. Few of you put out like a whole press release. They did a lot more talking than usually to do in the wake of a Supreme Court decision. They put out a chart with statistics about how many people have been charged, how many people this decision affects. That's some of how we know what the stats are. Everyone else agreed. It's not it's not particularly devastating to

the January six cases. Yeah, I think that's right. I mean, the statistics were that there were fewer than 20 cases that were either standalone or defendants were still in custody. It matters, but it doesn't got the January six prosecutions writ large. But I mean, the question about who it matters to is Donald Trump and maybe the immunity decision knocks some of it out. But I think the question is whether he's properly charged two counts, conspiracy count and a substantive count

under this same statute in Jackson, Smith, Washington indictment. I think that's okay, though, Joyce, unless you disagree, because I think they have the argument there that he did tamper with evidence by trying to create a false set of electors like paper documents with false electors on them. So meets the kind of document alteration requirement that the majority opinion says is required to charge on a statute. Yeah, I agree with that. And I think it also survives immunity,

at least if you're just a spirit. Maybe she can drag some of her brethren along with her on that one. But still in this environment, I think if you're DOJ, you've got to sit down, reassess everything and make sure that that first blush sort of impression really holds up. There's always been talk that Jack Smith could survive even a bad finding in this case for exactly the reason that you identify that this is much closer to a document's alteration case. But you know, there may be

questions of how personally responsible Trump is for that. There's another case called Loper Bright Enterprises versus Riemando that overruled and we'll talk about what this means at a moment, a very famous case called Chevron, which had been decided in 1984. And in any other Supreme Court term or end of term, a podcast and news broadcast, a newspaper would probably have led with this case. Right. Because it undoes a half a century of jurisprudence on generalized judicial deference

to executive branch agencies. But because of the nature of the immunity decision and some of these other things, it's a little bit flown under the radar if that's fair to say. So by the way, I have a little bit of PTSD from Chevron because it was decided about five or six years before I started law school and the law of your writing competition, which was a brutal undertaking presented a Chevron question. That's why I've never practiced administrative law.

I have basically for the last 40, 30 something years, shuttered every time someone mentioned Chevron. So maybe someone else wants to describe what Chevron was and how it was undone. Chevron had it covered in brief. Didn't everyone have that law of you writing experience where you lock yourself up somewhere for, I don't know, it seemed like several weeks, but it was just a week. It's horrible. I had it. Anyway, it worked out. Not for me. Oh, well,

everything else worked out for you, Ellie. I think Rachel needs to start us on Chevron. As the administrative law professor, I feel like I can I better be able to handle this one. So Chevron was a case that decided that if you read a statute and it was ambiguous or there was a gap that the agencies interpretation of that ambiguity or its filling in of the gap would be acceptable as long as the agencies interpretation of the statute was reasonable. It was a unanimous

decision. It wasn't a full complement of the court that had decided it because not all the justices participated in it, but all the justices who had participated in the Chevron decision agreed that was correct. And the decision was kind of like not seen as a big deal. No one justice Stevens wrote it. He didn't think it was a big deal or he was changing the law or was

anything significant. And it just became the way that you analyzed agency interpretations of statutes, particularly in the DC circuit, which is the the court of appeals that gets most agency challenges. And it was accepted by Republicans and Democrats alike that that was just of course, that's what you would do because if a statute isn't clear, you're deciding between do you go with

the expert agencies interpretation of how to interpret that statute? You know what makes most sense given the complicated area that the agency is in charge of or do you go with a court and its interpretation when the court doesn't have any specialized information or knowledge or background. And so this was like just the accepted framework that everybody went along with for

four decades. No one suggested there was anything wrong with this until money conservative business interests decided that agencies were being too aggressive with their decisions in ways they did not like. And they decided that the answer was to kill Chevron. And they really went on a concerted campaign and it started by getting judges and justices appointed who agreed

that Chevron was bad. So you know, as we think of what project 2025 means for the future and how it means when you kind of set an agenda to pick people who are going to decide things a certain way, that was basically part of the plan for selecting judges. And I'm not this isn't conspiracy minded. This is all public information. We have the people on record saying, oh yeah, we wanted to take down Chevron and we picked people who agreed with us and they're proud of it and they're running

a victory lap right now. So that was very much the effort that was put in place. And this is the you're now seeing the the fruit of that effort, which is the court decided to overrule it. And I will just say if if you are upset by dogs and the fact that the Supreme Court overruled a 50-year-old precedent involving a constitutional right, you should be absolutely furious with this one

because this is a case where what the court was doing was interpreting a statute. You know, it was basically saying there's this administrative procedure act and under the administrative procedure act, that should be the standard that we review statutory interpretation. If the court was wrong about that when it decided the Chevron case, Congress had 40 years to overrule it. Right. It wasn't like that was a constitutional decision. There was ample

opportunity for Congress to say, no, no, no, you have it all wrong. We don't want it to be that way. But Congress never did that. Congress accepted it. It reauthorized statutes that were given Chevron deference. It accepted all of it. So this was the court being super aggressive and deciding to overrule its own statutory interpretation decision. Even though Congress agreed with it by its silence. And it was just I it's outrageous. It is

a truly outrageous decision by the court by a court that claims to be we do balls and strikes. And there's a whole separate opinion by justice gorsuch talking about judicial humility, which is like if you want to talk about gaslighting, then read a whole opinion about judicial humility and the context of a court going out of its way to overrule a doctrine that never caused any problems that everybody used and relied upon and that Congress accepted and it used to be Republicans accepted it too.

Yeah. I wanted to add that historical footnote. I'm just going to quote from a passage from Scotis blog Amy Hower wrote the post and it goes to a question I have about outcomes and how if enough time goes by and a particular ruling begins to favor the other side of the ideological

spectrum. People will walk back their principles and find some other pretextual way to undo a prior ruling as she writes quote although the Chevron decision which upheld the Reagan era and environmental protection agencies interpretation of the clean air act meaning a conservative

interpretation which eased regulation of emissions even though it was generally hailed by conservatives at the time right because of the outcome as I'm pointing out the ruling eventually became a target for those seeking to curtail the administrative state who argued that courts rather than federal agencies should say what the law means. So the principle seems to have mattered less over time than the outcome is that fair. Yeah and it's really sad. I'll just add as a personal note here.

So I you know I clerked for a very conservative judge on the DC Circuit Judge Larry Silverman and I'm a Democrat and he was a Republican and like a Republicans Republican and one of the things that made that clerkship no problem at all for me was that we had this shared vision of Chevron

that this was of course this is what you do because he believed in judicial restraint and he would talk about it all the time he gave a speech to the ABA about how important Chevron was to thinking about judicial restraint because of course it shouldn't be federal judges that make these policy

calls. It should be people in the executive branch who are ultimately responsible to the electorate because you elect presidents who put these people in these agency positions and set these policies and it was one of those areas where I used to tell people when they'd ask how could you possibly clerk for somebody who was conservative. I would say you know what actually there are these areas of

law they're not about liberal and conservative. They're about how you think about institutions and you know and it was actually a great clerkship and a great year and I I have to tell you I'm so sad right now because I just am wondering how many spaces like that exist in the law anymore

because it seems like everything has become so politicized that there aren't that many pockets where you see kind of people on the left and the right agreeing to a larger institutional principle and I actually think Chevron's death is kind of the ultimate monument to the death of that kind of bipartisan consensus of what you think about the role of the courts. I wouldn't bring the others

in in a moment but I do have a nerdy another nerdy lost student question. In overruling Chevron Justice Roberts has this aside right he says Chevron decided in 1984 by a bear quorum of six justices triggered a market departure from the traditional approach. What's the slander of bear quorum of six justices isn't isn't the overruling also six justices. Why does it matter that that somehow to recuse themselves. I just want to know from Rachel what the hell was going on with that

comment. Oh that's such BS it's like make weight garbage it's because when you claimed in your confirmation hearing that you were all about starry devices. You have to come up with these BS arguments to explain why you're overruling a foundational concept that should absolutely never have been overruled. Starry devices is meaningless I will say that's that that is your other takeaway

from Loper Bright. Like if you don't know about that one which caused no problems it wasn't wrongly decide like it's just on every starry device that's factor that you think about should be upheld like everything they ever said about precedent at their confirmation hearings was just a complete untruth. Rachel this has been the most moving passionate defensive chevron that I've ever heard.

Seriously. I'm sorry. I'm sorry. This is the ad law professor. Ellie, if you had done some of that maybe in the course of your academic career law school would have been different. It made law of you. I shouldn't have given you that and the entire audience but go ahead everyone you can you can use it. You know Rachel one of my buddies is Lisa Breastman at Vanderbilt who you may know. Oh I love Lisa. She's one of my favorite people in the whole world and I just

feel like she's needed therapy all week for the death of chevron. I'm a center. You guys are so sad. You know I have a hat that my students gave me one year and I bring it out every year from the chevron. And yes it says it's the chevron the gas company. I love it. So I actually teach it as part of my democratic institution seminar we talk about chevron at length and I've just realized I'm going to have to write new classes now. Can I ask a contrary question how do we survive

for generations until 1984 when chevron came into existence? They gave statutes skidmore deference which was you know I think the courts had a pretty deferential sense then you know the biggest. The biggest difference though pre-honestly from like just a political standpoint is you have to remember we had like all democratic congresses you know from the kind of new deal until the 80s when new gingriches I guess that's what it when is the new gingrich 92 or whatever

but you had democratic congresses as well. And so the idea of kind of the I think courts weren't really thinking of the kind of gridlock that we're thinking of today so that kind of agencies doing what the congress wanted even when they did kind of quote unquote liberal things wouldn't

have seen that weird because they were liberal congresses. But once you start to kind of have the deregulatory agenda of Reagan in the picture then and all of a sudden becomes attractive to think of this idea of well we what we want you to do is to refer these agencies which aren't going to get these statutes they're broadest reading anymore. You know they become chevron at its birth is a more

conservative kind of idea if you think of who is operating in the branches at the time. And then if you really want to be you know a complete cynic you ditch it once you feel like you have enough people in the courts who will we'll do what you want. And you think that democratic administrations when they come in the agencies have too broad of a reading. I will say this in defense of Loper bright. It's a good exercise in choosing your plaintiff because the fact pattern here is

is almost like so over the top that it almost makes you sympathize. Are you a fisher? It's a real red hair. Right. Right. The regulation that gave rise to this was some rule from the national marine fisheries. You know, whatever it is service. Don't say that dismissively. No, no, no, I listen, I'm very appreciative to what they do. It's a very good service. But the regulation here required, I mean, I get it exactly right, but required commercial fishermen to have a federal

monitor on board their boats with them. I don't know if they're like measuring the size of the herring to make sure or whatever, but monitoring the catch that comes in and pay the guys salary. So I get it. I'm generally with you. But if you wanted to hold up an example of the administrative state where you roll your eyes, it's a pretty good one. Well, you know, Roberts's point is that yeah, when you talk about expertise, there's subject matter expertise. There's scientific

expertise or medical expertise, there's engineering expertise and all of that. But there's a difference between that and judicial expertise and statutory expertise and legal expertise. And I guess the question is can you so readily distinguish those things? Well, I think he, you know, he's putting in mind that you're like reading a statute and you're just grabbing the dictionary and you're trying to figure out, you know, that courts are really good at that. The same guys who from time

of time say something is unambiguous when there's disagreement. Right. But but in reality, what they're doing is things like deciding, you know, how much noise in a statute that says aircraft flying over the Grand Canyon National Park is permissible to provide for substantial restoration of the natural quiet. Like is John Roberts really in the best position to decide natural quiet? How we think about that would be that would be Thomas. I get off my lawn. It's too

loud. But you know, the exact language from the case, I think, is compelling on this point. They write perhaps most fundamentally. Chevron's presumption is misguided because agencies have no special competence in resolving statutory ambiguity. Courts do and Rachel, I think that's your point that he's treating this like it's about resolving statutory ambiguity and not important questions like, you know, is it enough to have forebilt to attaching that engine to an airplane

or do you need six? I don't want Clarence Thomas or John Roberts or any of that crew Alan, a Kagan for that matter, making those decisions. You know, crystallize this. Did you folks see the folks who pointed out one of the contemporaneous who recently decided Supreme Court opinions written by Justice Gorsuch as somebody pointed out in the tweet, Justice Gorsuch's opinion refers five times to nitrous oxide, AKA laughing gas rather than the entirely different chemical

compound, small causing nitrogen oxides actually at issue in the case. So maybe expertise does matter. I like that. I didn't know that perhaps definitely. Wait, so he thought he was regulating smog, but it was actually regulating the stuff that comes that your dentist gives you when you get to see people, which should I believe strongly should never be regulated. Reflow of laughing gas. We're all going to need it after these cases. I think we all need universal

basic nitrous oxide. Can I end with a final question? And this is to everyone who teaches and maybe in particular for Rachel, Mark Elias, everyone knows his lawyer for democratic causes and file suits with respect to elections and campaigns. He writes on social media, among the people I feel bad for today are law professors who have to stand before classrooms of students and explain with a straight face how any of this makes sense. Is that resonate with you folks?

Well, I'm not looking forward to teaching any of these. I will say he's definitely got that part right. I like I told you I am a little sad because I I'm sort of the target audience for conservatives who want to make the judicial restraint argument because I've bought it for most of my life. I really did believe there was a group of really principal people who when they said what they just didn't want judges making the law. And so when they were overturning,

you know, quote unquote liberal decisions, it was about an institutional role. And I believed that and thought that was a real thing. And I think Chevron is a perfect example of something like that. But as they start to demolish all those things and they themselves exercise no judicial restraint where they aggressively overturn things on constitutional grounds where they make a textual decisions like the immunity case. It's just hard to see that that kind of principle judicial

restraint conservative judge exists anymore. At least at a broad level. And that does make it very hard to teach students that law is doing work as opposed to politics. Rachel and Joyce is you to teach law students. I teach undergrad. I don't get deep into Supreme Court doctrine or cases. But do you teach that way now? I mean, because I remember being taught in a very well, what the justice is do is they apply the inputs and whatever the output is. That's it. They're

not, you know, there was never any discussion of are they partisan. It has that changed in the way you teach. You know, law students aren't stupid. They understand that when you talk about started decisis and precedent in terms where they see case after case overturned without meeting the standard for reversing longstanding precedent that something's a foot. And so I think we live and Rachel, I'm curious about how you do this. But I think we live in this very uncomfortable time

where we have to acknowledge that something is broken in the rule of law. And I think the important pitch to our students, the important message for them is to think about how it should work and what they can do to be part of getting us back to a better place. Yeah, I agree with you, Joyce. That's I try to keep my eye on how things should be working, even if they don't always work that way. And you know, there's examples where you can show like, oh, hey, look, here's where the

conservative justice joins the liberal view or the liberal justice join the conservative view. So it's clearly not pure politics. And more importantly, you know, really think about the kind of people that you want to have in those positions. Who should those justices and judges be? And when you vote, you want to think about who's going to get appointed and how those people view their role because

all of that really matters. And it couldn't matter more than it does right now, given what we're seeing on this court, I'll just add, you know, this is, it's a six three court, but some of these justices are getting up there. And whether this six three is cemented for decades more, really does depend on who wins the next election because justice, Thomas, justice, Alito, they're older. And if they're replaced by younger versions of themselves, this is the kind of thing that you're

going to be seeing then for decades and decades. The good news is, won't they run out of precedence to overturn? Hey, we're out of it. We're out of precedence. This has been wonderful. So I am not experiencing a lot of joy when it comes to law and politics and the Supreme Court in particular in the last number of days and weeks, but it is a real pleasure and honor and treat to be with you three to break it down for our audience. So thank you so much. Joyce, Ellie and Rachel.

Thanks for having me. Thanks, y'all. My conversation with Joyce, Rachel and Ellie continues for members of the CAFAN SIDER community. In the bonus for insiders, we discussed the Supreme Court ruling that preserved for now access to emergency abortions and more. I think you're going to sadly see a lot of women's life and health at risk, not just in Idaho, but in states around the country. To try out the membership for just one dollar for a month, head to cafe.com slash insider. Again,

that's cafe.com slash insider. Well, that's it for this episode of Stay Tuned. Thanks again to my guests Joyce Vance, Rachel Barkow and Ellie Honeg. If you like what we do, rate and review the show on Apple podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics and justice. Tweet them to me at Preet Bharara with the hashtag AskPreet. You can also now reach me on threads or you can call and

leave me a message at 669-247-7338. That's 669-24Preet or you can send an email to letters at cafe.com. Stay Tuned is presented by Cafe and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Taddishore. The deputy editor is Celine Roar. The editorial producer is Noah Azalai. The associate producer is Cloudy Hernandez and the cafe team is Matthew Billy, Nat Weiner and Jake Kaplan. Our music is by Andrew Dost. I'm your host,

Preet Bharara. Stay Tuned.