Presidential “Immunity” and Creeping Authoritarianism

Lisa Graves: [00:00:00] So before we start the show, I want to deliver a quick message to new listeners who’ve been off climbing Mount Everest or been on an extended meditation retreat in Peru, or maybe lost at sea. First of all, welcome back to society. You look great. I’m forced to assume. Secondly, around a week before recording time, Donald Trump was found guilty

NBC News Report: guys.

We need to go. We need to go. Okay. Okay. Here we go. We have our verdict Savannah. Here we go. Count one guilty count to guilty count three.

Lisa Graves: Sorry, I should probably be more specific. He was found guilty on all 34 charges for falsifying records of his hush money payments to a porn star. This wasn’t corporate fraud, nor the sexual assault.

He was already found liable. for those.

CBS News Report: A federal jury in New York found Donald Trump liable for sexually abusing advice columnist E. Jean Carroll nearly 30 years [00:01:00] ago.

Lisa Graves: It wasn’t for record hearing in Georgia, and it wasn’t for stealing classified documents from the White House.

CNBC News Report: Former President Trump says his Mar a Lago home is being raided by the FBI right now.

Lisa Graves: It wasn’t even for his incitement of a violent insurrection and conspiracy to overturn the 2020 election.

CBS News Report: The January 6th committee released its final report. It finds that, quote, the central cause of January 6th was one man, former president Donald Trump.

Lisa Graves: And it has nothing to do with the merits of the case.

It has nothing to do with Trump’s Conspiring to drum up fake Electoral College documents, or preparing the Vice President to deem the election defective, or intentionally inciting a mob to attack the Capitol building. Right now, in Trump versus United States, the U. S. Supreme Court is weighing whether or not The president of the United States just gets to get away with that sort of thing.

CBS News Report: Just moments from now, [00:02:00] the nine justices will hear oral arguments over whether former President Donald Trump is immune from criminal prosecution for any or all actions taken while he was in office.

Lisa Graves: This case is about presidential immunity. The idea that a president is immune from prosecution for their actions.

as president, even after they leave office. The U. S. Constitution never mentions presidential immunity. And, in fact, in 1974, the United States Supreme Court unanimously said the president cannot shield himself from a criminal prosecution based on the assertion of executive privilege. But there has been a tiny carve out to protect a president from being sued for a small number of quote, official acts or official duties.

Does using fraud to overturn the results of a free and fair election fall under official duties? Well, it turns out in the [00:03:00] upside down world of 2024, it depends on who you ask.

Sonia Sotomayor: What is plausible about the president insisting and creating a, uh, a fraudulent slate of electoral candidates? Assuming you accept the facts of the complaint on their face, Um, Is that plausible, that that would be within his right to do?

John Sauer: Absolutely, Your Honor. We have the historical precedent. We cite in the lower courts of President Grant sending federal troops.

Lisa Graves: In oral arguments held in April, Trump’s lawyer John Sauer argued for a definition of presidential immunity that would free a president from culpability for almost literally anything, as long as it could be quote, structured.

As an official act, a president could be immune from taking bribes, selling state secrets, or even ordering assassinations of political [00:04:00] rivals. That’s not hyperbole. Those examples came up in oral arguments as things a president could conceivably get away with, depending on if this Supreme Court accepts this version of presidential immunity.

The ruling could give a president unprecedented new powers to subvert the law. And it’s no coincidence that the president that instigated this whole thing is in the running for another term in the White House. I’m Lisa Graves, and this is Grave Injustice, a podcast from Courier. that explores how extremist actors are leveraging the courts to subvert the law and hijack American democracy.

And in this episode, a right wing Supreme Court, which includes three justices appointed by Donald Trump, gets to decide whether this country gets to hold Donald Trump accountable for federal crimes or if they are going to decree that the president is above the law.[00:05:00]

The case of United States versus Trump was filed last year. Trump was swimming in litigation. Just in terms of his actions as president, he was on the hook for attempted election fraud and his role in the January 6th insurrection, plus the theft of classified documents. Trump asked the Washington DC District Court to dismiss all charges on the grounds of presidential immunity.

But the District Court and the U. S. Court of Appeals shot down that claim. They concluded that being president doesn’t give you the right to hatch evil schemes. Paraphrasing, of course. Now the Supreme Court has jumped in. But let’s start with this idea of presidential immunity. You may have heard that a sitting president can’t be criminally indicted.

That’s not true.

John Sauer: For 234 years of American history, no president was ever prosecuted for his official [00:06:00] acts.

Lisa Graves: That’s the opening statement from Trump’s lawyer, John Sauer, in the oral arguments in Trump versus United States. That ignores that only rarely have we had evidence that a president committed federal crimes while in office.

Only Richard Nixon and Donald Trump have that distinction. Here’s Sowers claim that Trump’s effort to subvert the will of the people in the 2020 election is somehow protected.

John Sauer: If a president can be charged, put on trial, and imprisoned for his most controversial decisions as soon as he leaves office, that looming threat will distort the president’s decision making precisely when bold and fearless action is most needed.

Lisa Graves: That’s an Orwellian mindfuck of a claim. But Sauer goes on.

John Sauer: Every current president will face de facto blackmail and extortion by his political rivals while he is still in office. The implications of the court’s decision here extend far beyond the facts of this case.

Lisa Graves: And the courts have [00:07:00] partly agreed on a very, very limited basis.

They have ruled that a president has some limited protection from civil suits while they’re in office. And you can’t sue the president personally for policies you dislike. You can sue the government, though, but I digress. Criminal cases, such as, say, an electoral candidate trying to falsify election results, they are another matter entirely.

No president has been tried in criminal court because Nixon was pardoned for his crimes, and Trump has not been. But here’s the thing. There’s nothing in the Constitution preventing a president from being tried for his crimes. This idea of some sort of broad constitutional immunity for a president is just a myth.

Glenn Kirschner: So, the immunity case is really Donald Trump’s efforts to convince the Supreme Court to create out of whole cloth this [00:08:00] notion of absolute presidential immunity, which really is contradicted any number of ways by The Constitution by history and by our common understanding of criminal responsibility even for high government officials.

Lisa Graves: This is Glenn Kirshner. He spent 30 years as a public prosecutor, including 24 years with the U. S. Attorney for the District of Columbia. He’s now a legal analyst for MSNBC and NBC. He also has a podcast and a video series called Justice Matters.

Glenn Kirschner: There really is no support in the Constitution. For the notion that a criminal, that a president of the United States can commit all the crimes he or she wants against the American people and can absolutely not be prosecuted for those crimes.

Lisa Graves: Sauer claimed that presidential immunity comes from the quote, Executive Vesting Clause of Article 2 of the Constitution.

Clarence Thomas: Mr. Sauer, to your last point, could [00:09:00] you be more precise as to the source of this immunity?

John Sauer: The source of the immunity is principally rooted in the, uh, Executive Vesting Clause of Article 2, Section 1.

Clarence Thomas: And how does that happen?

John Sauer: Uh, that, that, the source of it, Justice Thomas, I think is, as you described in your separate opinion in Zivotofsky, for example, that the Executive Vesting Clause does not include only executive powers laid out explicitly therein, but encompasses all the powers that were originally understood to be included therein.

Lisa Graves: Here’s what the Executive Vesting Clause actually says, quote, the executive power shall be vested in a president of the United States of America. He shall hold his office during the term of four years. End quote. That’s it. That’s the whole thing. All that stuff Sauer mentioned about quote, the powers that were originally understood to be included therein.

Glenn says that’s a nothing burger.

Glenn Kirschner: Indeed, if you look at the impeachment judgment clause, it says in substance, I’ll take liberties with the precise language, but it says [00:10:00] somebody like a president can even be impeached by the house of representatives. And convicted in the Senate on the articles of impeachment.

And that person can still be criminally prosecuted for the exact same conduct. To me, that sounds like the exact opposite of an assertion that a president can’t be criminally indicted, tried, or convicted. So the text of the Constitution, I believe, is fatal to Donald Trump’s argument.

Lisa Graves: As for Sauer’s appeal to history, Glenn says that throughout American history, presidents have, in fact, acted with the understanding that they could be nailed to the wall for breaking the law.

Glenn Kirschner: Let’s look at history. Gerald Ford. Horrifically, in my opinion, 50 years ago, pardoned Richard Nixon for the crimes he had committed while in office, because everyone [00:11:00] understood that if Richard Nixon wasn’t pardoned, he could be criminally prosecuted.

Lisa Graves: There’s an apocryphal story about Ulysses S. Grant becoming the only president to be arrested after he was caught racing a horse drawn carriage through the streets of Washington, D.

C. Grant is said to have commended the arresting officer for doing his duty. It’s been used as a parable about how not even the president is above the law. Unless this Supreme Court says The president is above the law. The kind of immunity that Trump is asking for is absolute immunity, which would make a president immune from all criminal and civil prosecution categorically, as long as he claimed he was acting within the quote, outer perimeter of his duties.

The term outer perimeter comes from a 1982 Supreme Court ruling in which a military contractor tried to sue Richard Nixon. And that’s one of the cases that [00:12:00] now protects presidents from civil suits in a limited way.

Glenn Kirschner: Now, outer perimeter immunity is actually a thing, as you know, in the civil law. And I don’t think presidents or government officials should be dragged into court all day, every day.

And civilly sued for official decisions. But a ruling

Lisa Graves: in Trump’s favor would take that quote, outer perimeter language and apply it to criminal cases as well.

Glenn Kirschner: The defense has tried to import. This outer perimeter language, which is nonsense in my view, in the context of a president who commits crimes, a president is constitutionally obligated to take care that the laws of the country be faithfully executed.

That is directly inconsistent with the notion. That he can commit crimes with complete impunity and immunity that would override the express language setting out the [00:13:00] responsibilities of the president.

Lisa Graves: You probably noticed a big caveat to all this. The kind of absolute immunity Trump is asking for is.

Theoretically limited to the president’s official duties, though it wouldn’t allow Trump to say go out and shoot someone on Fifth Avenue. Right? Here’s the problem. Donald Trump intentionally distorted the line between personal and official, and that way he likely would make the argument that anything he does is for the good of the country or as president.

Even his attempt to overturn the 2020 presidential election. Sauer, in fact, claimed Trump wasn’t trying to overturn the results for personal gain. He claims that Trump merely sought to protect what he saw as a flawed election process. Which was within his quote, official duties, or at least the outer perimeter of them.

John Sauer: The indictment affixes the word label [00:14:00] to the so called fraudulent lectures. It affixes the word fraudulent, but that’s a complete mischaracterization. On the face of the indictment, it appears that there was no deceit about who had emerged from the relevant state conventions. And this was being done as an alternative basis.

Lisa Graves: But where do you draw the line? Taking a bribe, selling state secrets, assassinating a political rival. Again, the justices actually asked Sauer if the president would be immune from these crimes. His answer was, maybe.

Sonia Sotomayor: If the president decides that his rival is a corrupt person, and he orders the military or orders someone to assassinate him, Is that within his official acts for which he can get immunity?

It would depend on the hypothetical, but we can see that could well be an official act. It could, and why? Because he’s doing it for

Glenn Kirschner: I was in the courtroom listening to one [00:15:00] of Donald Trump’s, you know, endless stream of defense attorneys argued to the District of Columbia Federal Circuit Court of Appeals that a president could order the assassination of a political rival and he could not be criminally prosecuted because apparently, in their estimation, that is some kind of an official presidential act.

The only give in his argument was that, well, you know, if Congress impeached him and convicted him on the articles of impeachment for assassinating His political opponent? Well, sure. Then he could be criminally prosecuted. None of this makes any sense. None of it makes any sense to lawyers, to lay people.

Lisa Graves: Doesn’t make sense to me either. And the fact that this case is even being considered by the highest court in the land, in a way, that’s already a huge win for Trump.

Tiffany Muller: Just the very fact that this case Was heard [00:16:00] and that it delayed justice in this case plays right into Trump and his legal teams Legal strategy, which is to delay and delay and delay accountability

Lisa Graves: This is Tiffany Muller a political activist and researcher of more than 20 years and the president of the sister organizations called end citizens United And

Tiffany Muller: then if he wins in November, he could pardon himself and hide behind the Oval Office and, and try to make sure that, that there was no further prosecution or accountability that could be held.

So even the fact that they took up this case is doing his bidding, the fact that they have drug it out, the fact that we have to have this conversation where we’re not sure how they’re actually going to rule, it is all just incredibly dangerous.

Lisa Graves: So why is this court. Allowing Trump to tie up his legal troubles until after November.

I wish I could [00:17:00] say they’re just doing their due diligence following the process, weighing the fact, but that’s not this court. If you’ve been listening so far, you’ve heard how the current Supreme Court. doesn’t just have a right wing majority. It has a right wing supermajority hand curated by extremist interest groups led by powerful actors like Charles Koch, Leonard Leo of the Federalist Society, and of course, Donald Trump himself.

Leonard Leo and Koch have spent decades trying to create a right wing machine within the judicial system engineered to dismantle laws, Regulations and checks on their power or their agenda. And when it comes to January 6th and Trump’s efforts to overturn the presidential election, some of these handpicked right wing justices have already tipped their hands.

Tiffany Muller: Justice Thomas’s wife, Ginny Thomas, uh, we know was a key organizer and advocate for the whole Stop the Steal movement. She was in [00:18:00] touch and was texting regularly with Congress. Trump’s White House about strategy and other officials following the 2020 election.

Lisa Graves: And then there’s this recent New York Times report that revealed that in January 2021, an upside down American flag was flying outside of Sam Alito’s house.

TODAY Show: This was the photo taken on January 17th, 2021. The upside down flag was a symbol associated with former president Trump’s false claims of election fraud.

Lisa Graves: In his statement, Alito blamed his wife.

TODAY Show: Alito said this, I had no involvement whatsoever in the flying of the flag. It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.

Lisa Graves: I mean, who among us hasn’t had an upside down American flag flying outside in response to rude neighbors that they supposedly didn’t see? I’m sure it had nothing to do with the radical [00:19:00] political movement using the exact same symbol.

Tiffany Muller: I mean, if Justice Thomas or Justice Alito had a shred of integrity, they would have recused themselves from this case.

Again, this case shouldn’t have been heard at all. And now, instead of the case being heard by an impartial court, we instead have justices who were really uniquely and intimately involved with and supportive of the Stop the Steal movement, the, the movement to overturn the elections.

Lisa Graves: But the evidence for the court’s bias toward Trump is more than just circumstantial, and it goes beyond conflicts of interest.

You can see it in how they’ve behaved. Remember when Colorado barred Trump from appearing on the primary ballot? The U. S. Supreme Court wasted no time getting Trump back in the race. Here’s Glenn Kirshner again.

Glenn Kirschner: Now mind you, Donald Trump is an adjudicated insurrectionist. By a trial court in Colorado as affirmed by the Colorado [00:20:00] Supreme Court.

Therefore the 14th amendment section three says he is disqualified period from holding federal office. How quickly. Did the Supreme Court jump on that so they could ensure Donald Trump would have his name on all presidential primary ballots as we move in the direction of a presidential election? Now, compare that to the way they have basically caught and killed the possibility of a timely resolution of the absolute immunity nonsensical argument.

So at this point, the delay Really is the benefit to Donald Trump, and they’re delivering that benefit to him every single day. They decline to decide this issue

Lisa Graves: again. The fact that the court is weighing in on this case. That America is having this situation [00:21:00] that we’re even making this episode of the podcast.

This is already a loss for democracy

Glenn Kirschner: just feels like the deck is stacked in favor of Donald Trump and against a sort of free, fair American election and accountability. For those who would try to destroy our democracies,

Tiffany Muller: it’s only possible because there has been this three and a half years of normalization of these kind of attacks of normalization of this kind of rhetoric of normalization of everything from election denialism to voting rights suppression to the violent and hateful and discriminatory rhetoric that we see used day in and day out to threats of bloodshed.

This is not normal. This cannot be normal.

Lisa Graves: And this is all without knowing how the court will actually rule.

Tiffany Muller: Our democracy only works because no one is [00:22:00] above the law. Whether that is you are an average, uh, you know, American or a sitting or former president, we can only have a working democracy if everyone is held to account.

We all have to be held to those same standards. And, you know, if, if this immunity is granted. It would embolden presidents to a really dangerous extreme. It would undermine the rule of law moving forward. It would completely just decimate our constitution. And if MAGA extremists were already willing to storm the Capitol and violently try to overturn the 2020 election before any type of immunity was granted, what will they do if immunity is granted?

Lisa Graves: So what happens if Trump goes to the Oval Office without going to trial in all of his federal criminal cases? [00:23:00] Can he really pardon himself or get DOJ to drop the charges? And if he does win this absolute presidential immunity, what happens? What laws would Trump or any future president be willing to break under the guise of,

Glenn Kirschner: quote, official duties?

What he will do in his second term is continue to weaponize the Department of Justice. He will find a way to force the state courts, in the event there are still, uh, State court proceedings pending against him, like his RICO case down in Georgia. He will, at a minimum, force them to be suspended while he’s in office, and he will probably succeed.

One way or another, here’s what I believe to my core, Lisa. If all else fails, he will use force to make sure no jurisdiction holds him accountable criminally. That’s not hyperbole. That’s who Donald Trump has shown himself to be. There[00:24:00]

Lisa Graves: are a lot of what ifs here, but for me, one thing is absolutely certain should go to trial. American voters have a right to see the evidence and know whether a leading presidential candidate is guilty in a court of law of defrauding the election process. Voters should know whether he is legally guilty of inciting a violent insurrection, which would disqualify him from running for office under the plain language of the Constitution, which the President takes an oath to uphold and to faithfully execute.

But thanks to the U. S. Supreme Court, we’re not likely to see that criminal trial about January 6th. before the election. And for me, that’s not even the most troubling part of this case. The most troubling part is that this is yet another example of a plan at work.

Tiffany Muller: The Supreme Court is supposed to be the gold standard of the judicial branch, but instead we have seen [00:25:00] scandal after scandal after scandal after corruption after corruption.

This kind of corruption has eroded the American people’s trust in the court, and rightly so. And so, again, this case shouldn’t have even been heard. The fact that it is is a giveaway to Trump and to these right wing donors. But when you look at the unique involvement of these justices in the efforts to overturn the election, it is just downright dangerous and their audacity is just insane.

Lisa Graves: This is yet another instance of a federal judiciary packed with right wing judges tipping the scales in favor of those who helped put them there.

Tiffany Muller: What we see is the Supreme Court acting as another arm of a political party, where it is being controlled by right wing MAGA extremists and billionaire donors, who are doing everything from picking who the justices are going to be, to forcing through their nominations, to [00:26:00] Putting cases in front of the court to whining and dining and taking on luxurious travel, vacations, justices and putting them with people who have business in front of the court.

Lisa Graves: The Supreme Court acting as another arm of a political party. That may sound like an exaggeration, but even in the limited scope of this podcast, we’ve seen it play out for our eyes. The majority of voters are in favor of abortion access, yet the court may ban. a 23 year FDA approved abortion pill, one of the safest medications available.

Why? Because right wing special interests want to keep it from women, and they had a few judges on hand to serve that up. We may see the end of a massively important common sense gun law that has saved thousands of women’s lives, not by an act of Congress, but because the NRA and its allies have enough Sympathetic allies on the bench at the time of [00:27:00] this recording.

We already know that this court has cleared the way for States to flagrantly disenfranchise black voters through gerrymandering. And at the behest of billionaire industrialists, it might kill a foundational legal precedent that allows the government to perform its most basic functions and keep us safe from pandemics, the devastating effects of ongoing climate change and more.

None of this is the result of the democratic process or even the will of American voters who are still overwhelmingly in favor of things like abortion access and common sense gun laws. These extremist actors know that democracy is not on their side here. And if democracy is allowed to function or thrive, They will lose, and even if the right wing legal movement loses these cases, this time, they still win.

They’ve still created a legal climate in which things that were once unthinkable are now up for debate. Regardless of what [00:28:00] happens in the coming month, that extremist legal machine isn’t going to stop. In fact, it’s just getting started, and now is the time to fight back.

Thank you so much for listening to Grave Injustice. We’ll be back again in a few weeks with a bonus episode when the U. S. Supreme Court has handed down the decisions in the cases we discussed throughout this series. We’ll review the decisions and discuss their implications with legal experts and also look ahead.

Like I just said, no matter how any of these individual rulings come down, the right wing machine continues to work to advance its agenda. So how do we fight back? Why is the Supreme Court a major issue in the 2024 election? Please make sure you are subscribed on your podcast platform of choice so you don’t miss that conversation.

Grave Injustice has been hosted by me, Lisa Graves, and is a production of Courier and Court Accountability. Our show is produced [00:29:00] by Devin Maroney. with writing from Jared Downing. It is supervised by R. C. D’Amezo, with support from Courier’s Kyle Tharp, Daniel Strasburger, and Lucy Ritzman. Original music throughout the series, including the theme, was written and recorded by Bia Mardot.

Daniel Del Plato created the show’s cover art. I’d also like to thank Tara McGowan from Courier, Alex Aronson from Court Accountability, and my team at True North. And thank you again for listening. We’ll check in one more time this season with a bonus episode in a few [00:30:00] weeks.