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It is verdict with Senator Ted Cruz, Ben Ferguson with you, Senator. It was a massive ruling from the Supreme Court on trump immunity and there are a lot of questions now that people have about this ruling.
Well, this was a major victory for President Trump in the Supreme Court. It was a vote of six to three. Chief Justice Roberts wrote the majority opinion and concluded that Trump has very broad immunity for official acts. We'll break down exactly what that means, but one of the things it means is that Jack Smith's prosecution is in serious, serious trouble and likely won't be able to proceed at all.
We'll explain it all.
Yeah, And there's a lot of people that have so many questions about presidential power now and what that means, the extreme left going crazy on that. Will break it down. Let me tell you real quick about Blackout Coffee. I tell you now, it's like every day I get a note from one of you saying, Ben, all right, I tried it.
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I rarely say this. I don't even know where to start with this ruling. So there's two aspects. There's one the ruling itself, and I guess we should probably start there. What does this mean? And then we'll get into the politics of it afterwards. But the Supreme Court overwhelmingly said that ex presidents have substantial protection from prosecution.
Well, that's right, and let me just explain a little bit of the ruling. So the Supreme Court laid out three categories of presidential action. It said, Number one, presidential action that is within the president's exclusive constitutional authority. There is absolute immunity. So what does that mean. That means powers that the Constitution gives directly to the president. Things like being the commander in chief of the armed forces, things like granting a pardon, things like nominating a judge,
things like firing a cabinet member. All of those are matters that are given to the exclusive authority of the President of the United States and the second category of the court laid out are presidential powers that are shared with Congress, and in that instance, the court says the president has immunity there also, but it did not decide whether the immunity is absolute or presumptive, and presumptive beings.
You presume that there's immunity, but the prosecution could lay out a strong enough case to overcome that immunity, and it leaves that question open, so that's not decided. The third category are unofficial actions and unofficial actions not exercising the power of the presidency. Those have no immunity whatsoever.
And what the.
Court then did is remanded the case all the way back to the trial court for the trial court to figure out which of the actions that are alleged in the indictment fall into which category.
That is, to break us down Layman's terms means they they basically said, you guys didn't do it right. You didn't even categorize it correctly. We're sending it back to you do your paperwork the right way, in essence, and then start all over.
Yes, but but it's not quite as harsh as that. This is something courts do all the time, and in particular, look the court is laying out a new test here. So anytime the court is laying out new rules, it is commonplace to send the case back to the lower court to apply those rules, to figure out what those
rules mean with respect to the specific case. And part of the reason is the way our appellate system works is courts of appeals review decisions and judgments made by the lower courts, and so it is an exercise of judicial restraint to say, let's let the lower court figure this out first and then will review any arguments of error on appeal.
So this is why the timeline is significant, right with the election coming up.
Yes, and so one almost certain outcome is there will be no trial on Jack Smith's case on January sixth, before election day? Did that there simply isn't time. It's before the district judge. She's going to have to go through.
This is going to be very complicated legal analysis. Both sides are going to present arguments as to what is what is an exclusive official act which is absolutely immune, What is an official act whether that is entitled to presumptive immunity or absolute immunity, and what is not an official act that is entitled to no immunity, and that is going to be action by action, and it will be I think Jack Smith is going to have a very difficult time having any of us case survive.
When you look at Jack Smith and you mentioned any of his case surviving, this case was clearly brought to either put Trump in jail, tie him up in court, interfere with the election. Could they even go forward with this case if hypothetically Donald Trump does win the presidency all over again, would that affect the case or basically kill the case? And if he loses, what's the point of moving forward because he's no longer in theory of
threats to the Democratic Party being the president? Is that another reason just to say, all right, well, we did what we need to do. We wanted to accuse him of a bunch of things and throw jell ou at a wall.
So theoretically the case could proceed in either instance. However, if Trump loses, You're right, the urgency of the case from the perspective of the Democrat partisans is reduced. If Trump wins, this case is over and it doesn't have to be over, by the way, But when Trump is sworn in on January twentieth, twenty twenty five. The instant he's sworn in, he has the authority to direct the
Department of Justice dismiss the case. The Attorney General works for him, and I fully expect at twelve oh one on January twentieth, new President Trump will instruct the Department of Justice dismiss both of these prosecutions. They were political prosecutions. They should not have been brought, and you are to go to court as the prosecutor and say we're dismissing our claims.
Bill Barr, who has been very critical of the president, he even came out and said this former US Attorney General obviously about the immunity decision.
I want to get your reaction to that.
Let me ask you first off about what this case comes down to. The Donald Trump has absolute immunity from criminal prosecution, but only for official acts. Is it going to be up to a lower court than the determined the difference.
That's right.
I think this was a very sensible decision that I think most lawyers familiar with this area expected, which is this went up to the court in a very abstract posture, which was the government's very broad assertion there was no immunity whatsoever, what the Court saying here is no, there's absolute immunity when he's acting directly under the Constitution, carrying
out a function under the Constitution. There is presumptive immunity when he performs an official act, and the government has the burden of showing that it can prosecute him for that without impairing the executive function. And finally, there's no immunity for unofficial or private acts, I think. And the practical effect of this is that the District Court is going to do what it really should have done at the beginning, which the government really should have had it due,
which is due the analysis. So the facts are going up to the Supreme Court. So as a practical matter, there's not going to be a trial of this case before the election.
That's the ballgame, right, I mean, this is another massive victory for Trump.
It is a massive victory for Trump, and now the District Court is going to have to sort it out. But let's talk a little bit about what those categories mean and why the court drew that distinction. And let's start with Category three. Private acts. There are all sorts of things that are private accident for which there is no immunity. If Joe Biden wandered outside the White House and saw a man walking on the street and pulled out a gun and shot him. That would have no
immunity because that's a private act. That's not exercising an authority, a power of the president. That's just committing murder. If a president sexually assaulted an inturn, say, that would have no immunity because that's also not a presidential power. That's not exercising presidential authority. That's committing a private wrong. If
a president committed, say, perjury or obstruction of justice. Let's say, hypothetically, a president named William Jefferson Clinton, who was facing a civil lawsuit went into the civil lawsuit.
And lied.
That lie under oath about his sexual activities. That is in no way of shape or form an official act. That is a private act. Under this decision, that president could be prosecuted for perjury or obstruction of justice if he goes and hides the dress with evidence of his sexual activity and obstructs an investigation into it, that could likewise be prosecuted. All of those are private acts.
There's no.
There's no presidential power being carried out there. The court's reasoning, so that's category three. But there's very little, if anything in jack Smith's indictment that arguably falls into that category. This is not private misconduct. Category one, the category that
the Court says is absolutely immune. The Court focuses on the text of the Constitution, and actually it draws it draws this model from a landmark decision of the Court called Youngstown Steel and Youngstown Steel dealt with when Harry Truman seized steel mills and Justice Robert Jackson, one of the greatest Supreme Court justices ever to serve on the Court,
described different levels of presidential power. And he described presidential power when the president was acting in concert with Congress, and congressional authority said, their presidential power is at its highest. And then he said, a second category is when the president is acting in an area where Congress has been silent,
their presidential power is at a middle level. And a third category is what a president is acting directly contrary to what Congress has said, and there he says presidential power is at its lowest because you've got two branches
in conflict. That was a model the Court drew upon here and what the Court concluded through its reasoning from Article two of the Constitution, which vests quote, executive power in a president of the United States of America, which grants the president duties of quote unrivaled gravity and breadth.
And it reason that the president's authority to act if it stems from either an Act of Congress or from the Constitution itself, and when acting within the constitutional authority, the president's actions are beyond the scope of congressional or judicial review. And the Court further held that an Act of Congress cannot criminalize the president's actions within his exclusive constitutional power, and that courts cannot adjudicate a criminal prosecution
examining such actions. And so the reasoning there is, listen, if the president is exercising a power that the source of the power is the Constitution. Congress doesn't have the power to step in and say we're going to take away the power that the Constitution gave you, because the Constitution is the supreme law of the land.
So I've got like fifteen different questions, and I want to go through these because it's the question I think everybody's asking. Democrats when this came out, the first thing they started fantasizing over was, fine, well, we've just gotten a dictator and a tyrant in the White House if Trump gets back in and do whatever he wants to and they say, well, then you know what, if he's going to do it, then maybe we should do it.
Let's just send sealed seam to six is a official act to go after and just take out Donald Trump. That was what they were talking about online. That would not be covered under an official act. Correct, Well, it's actually more complicated than that. And this is a hypothetical that's been asked at several stages in the litigation. In the Federal Court of Appeals. They asked that hypothetical to Trump's lawyers at the Supreme Court. That example is used
by one of the descents in the Supreme Court. And look, the reason it's complicated is because the presidency has vast authorities, and one of those authorities is being commander in chief of the armed forces. The president does have the power to kill people and has always had the power to kill people. And to be clear, every president who's ever served has killed people. That is part of the power commander in chief. Now you have responsibilities in terms of
how to do it. But I'll give an example. Barack Obama order the drone killings of US citizens abroad who were believed to be terrorists. He ordered the military said a drone over there and blow that guy up. Now, to be clear, Ben, if you or I did that, we'd be prosecuted for murder. We don't have the ability to order the drone killings of an American citizen. Barack Obama was now charged with murder, and so part of
the reason why that hypothetical. Look, it sounds absurd, but remember presidents are given massive authority, including literally the authority to push a button and launch nuclear weapons that could annihilate humanity.
It is terrified.
It's one of the reasons why Joe Biden being non compassmentus but not being utterly unaware of what's around him is so damn dangerous because he's the one person in America that has the power to exterminate our species.
In the three that dissented in this ruling, one of the examples, I want to go back to it because the Justice Claim immunity ruling allowed Presence to poison staff and again their example, I have Navy sealed team members kill political rivals. The Chief Justice Roberts really pushed back hard, saying that was nothing but fear mongering. So to be clear, this does not give the present power to poison their staff, right.
It does not.
But all right, what are the checks that would stop a president from ordering Seal Team six to kill a political rival.
One of the most.
Important checks is Seal Team six could and should refuse that order. That the military has an obligation. If there is an order that is plainly unlawful, the military should refuse to carry it out. And so if Joe Biden told Seal Team six, go kill Donald Trump, which by the way, lefties on Twitter are calling for every two minutes, which shows you listen when you're a ttalitarian that wants
to hold power at any time. It is interesting how revealing it is that they're immediately calling for murder.
That that says a lot. But the first check.
Would be that a blatantly unlawful order would be refused to be carried out by the military. Secondly, if God forbid, we had truly an abusive tyrant as president, and if the military refused to carry it out, the next immediate step would be impeachment. And it you would have to assume if a president murdered his rival, that you would see Congress and peach him immediately.
Well, even on MSNBC, they were having this conversation on this scot of immunity ruling, and they said, in their words, Trump could target like journalists could target.
Quote me, That's what Wallace said.
And then he said people, if he wins, will be forced to flee the country.
Listen, frame court in Russia exists, but none of us think that there's a rule of law there.
When you look at this hands, it just doesn't know it.
Yeah, exactly, Mark Elias. We should pull the curtain back on what's actually happening, shouldn't we.
People are exploring.
Options to live in other countries if they think they could be targeted for prosecution by Donald Trump, because targeting you, or targeting me, or targeting Andrew would be an official act based on today's decision.
Yeah, I mean they could target for criminal prosecution, they could target or administrative investigation, the IRS, the SEC, the EPA.
I mean they're not just talking about death, they're talking about using the president saying I'm going to target everybody I want to and use all of the things by the way which Democrats have done. They've used the justice system, they use the irs of the Tea Party, for example, They've gone after people and raid their homes. Steve Bannon's in jail right now. The list goes on and on and on of all the things that they're doing actually right now before this ruling that had nothing to do
with this ruling. Now they're like, well, we're going to have to leave the country because he's just going to target all of us.
So I got to say, what utter garbage the two of them. Oh, they're going to target us, the going to targets. That's what Joe Biden is doing right now, Joe Biden. This Justice Department is the most lawless, partisan, weaponized abuse system of justice ever seen. The absolute irony of those people saying, oh, Trump's gonna do that. You know what, when he was president before, he didn't do that. It is you, you dishonest partisan hacks that are going after
that have the four indicement against Trump. As you noted, Steve Bannon is in jail right now. They are, Peter Navarro is in jail right now. You're going after pro life protesters, you're attacking, you're refusing to go after people, are firebombing pregnancy resource centers. The absolute hypocrisy. The people who invented weaponization are now saying, well, we're scared we'll be targeted. It's utter garbage. You know, I got to say, you're and my friend Jesse Kelly, he tweeted it in
response to this. I think his tweet was very insightful. He said, you know what you call it when Scotus reveals the president has an community and the first thought the communists have is about using the military to execute political opponents. In poker, that's known as a tell. For instance, if you told me that the president could do whatever he wanted without restriction, my very first thought would be about firing government employees and eliminating entire federal agencies. For communists,
their thoughts go directly to murder. Again a tell.
It's a great point, and it goes back to the insanity of all of them. They do this, and then you know, you look at the Supreme Court and again I go back to listen to Norm Essen on CNN immediately after this happens.
Listen to what he says, when.
The president does it, that means it is not illegal. So in this context, with what the court has decided, norm does this mean that Nixon basically would have been able to do what he did completely legally without any recourse.
You could have had.
Substantial portions of Richard Nixon's wrongdoing that drove him from office because it was conducted from the Oval office, using his official advisors to engage in break ins. A wide variety of other illegal activity would have been impossible to prosecute. Essentially, what the Supreme Court majority, again including terribly conflicted justices who have no business sitting on this case under any standard of judicial ethics, what they've done, Sarah, is rewrite
American history. It goes all the way back to the founding American idea. We overthrew King George the Third because we did not want a ruler to have this kind of absolute immunity, and the Supreme Court has now altered that. And we have to be honest that we're facing a major party political candidate who has said he wants to be a dictator on day one, he wants to assert autocratic powers. They've just given him a license for dictatorship
within the purview of official acts. That should be extremely alarming, and it makes this momentous election really a referendum on the future of American democracy.
A license for dictatorship, like, come on, CNN.
What utter garbage, and again that the Freudian projection is so utterly rich. It is Joe Biden whose Department of Justice is targeting its political enemies. It is Joe Biden who is engaged in rampant censorship of the free speech of American citizens. It is Joe Biden who issued a blatantly illegal vaccine mandate that was thrown out by the courts, but fired thousands and thousands of active duty service men and women, fired FBI agents, fired Border patrol agents because
they refuse to comply with his illegal vaccine mandate. And to be clear, the court struck down his vaccine mandate, but he had already gotten rid of the people he wanted to get rid of. It is Joe Biden who repeatedly issues lawless orders trying to give away a trillion dollars in student loans that he has no legal authority to do. He knows they'll get struck down in court, but he's trying to buy votes. That is utterly lawless.
It is Joe Biden who, on the border is ignoring the entirety of federal immigration law and is released, has allowed eleven million people to come into this country illegally. Who is ignoring the Americans who are being murdered, who are being raped by the criminals he's releasing. And yet you have these numbskulls go on CNN and say, oh, well, this means Trump can be a dictator. Trump didn't do any of that. Everything I just listed Trump actually followed
the law, He exercised his power. He implemented policies that proved very beneficial for the American people. It is the Democrats. And look, look when Alexandro Majorcas was impeached for utterly defying the law, for refusing to follow immigration law, every single Democrat in the Senate, all of them voted to throw out the case and to hear no evidence. So they don't care about the rule of law. They care
about power. The reason they're angry and hyperventilating is because this case is an effort to weaponize the justice system to stop the voters from voting to elect Donald Trump, and this ruling they view as getting in the way of what they want to do, which is weaponized the justice system to subvert democracy. The irony is, he says, this is a blow to democracy. What they're doing is an attack on democracy, and they're frustrated that their attack on democracy is not working.
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Say the keyword baby. Or visit preborn dot com slash verdict that's preborn dot com slash verdict Center. My final question for you now is the politics of this. You got Twitter going crazy in the left saying, all right, we'll just take out Donald Trump, which is I thought against law, but apparently not. You've got the media saying, well, this means that Donald Trump, if he gets elected, is going to be a dictator and a tyrant and he can just lock everybody up, so people are going to
have to flee the country. And now, in a weird way, this kind of gets the Democrats out of out of jail free card. With the court cases which I believe have been backfiring on them, They've only been helping every time they go after Trump legally, it seems to help Donald Trump.
Is this in a weird way of blessing in disguise.
Politically, for the Democrats, they can kind of just put pause and Jack Smith can go away and Alvin Bragg can kind of go away for a little bit, and we just kind of have a normal election.
Now, you know, I think you may be overthinking it. I don't think they're capable of thinking strategically or rationally on this. They just hate him. They want to attack him on every front. It is always about Orange Man bad, it is always about Trump is the devil. And so they're just gonna have You're gonna see cries of frustration. You're gonna see tears on MSNBC. Trump winning terrifies them. Look, these cases, the jack Smith case is not gonna proceed
before the election. It's gonna take significant time to brief out and decide the immunity questions that now sent to the Lower Court. And it's not clear that any of the jack Smith case survives once you go through the analysis of what constituted an official action, either an exclusively official action or an official action with with shared authority with Congress, very little, if any, of the jack Smith indictment will survive that analysis. But and and actually, Alvin Bragg,
it's it's interesting. You know, we were supposed to have the judicial sentencing of Trump two days before the Republican Convention.
That now is going to be delayed. And the reason it's going to be delayed is as soon as this decision came down, Trump's legal team asked to brief the judge there as to why those convictions should be thrown out under the reasoning in in this Supreme Court decision, and and and the court said yes, that that that the court will consider legal arguments on that question, and that meant that the sentencing had to be delayed. And Alvin Bragg agreed to delay the sentencing. Now, I got
to say he pretty much had to. With this decision coming down, it is obvious that the court at least needs to consider what is the relevance of this decision to the convictions against Donald Trump. Now, the court said when it was scheduling arguments that it thought that the arguments were baseless. So I'm going to predict right now the New York judge is going to say, no, this
that decision doesn't change anything. And it is true that the conducted question occurred before Trump was president and so it is in no way, shape or form an exercise of presidential authority. And so there are lots of reasons why the decision from the New York Trial Court is an absolute abomination and an abuse of power, and why
it will be reversed on appeal. But it may well be that that it's not going to be because of this decision, because this decision concerns the the exercise of presidential powers, and Trump was not president when the conducted question occurred.
It's going to be interesting. We're going to be following it here. Don't forget. We do the show Monday, Wednesday and Friday. Make sure you hit that subscribe or auto download button. Please share this podcast wherever you are on social media so other people get to hear it and the center I will see you back here Friday morning.