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Hush Money Trial Underway, Supreme Court Hears Trump Case Soon; Supreme Court Questions Trump Lawyer in Immunity Case; Justice Press Trump Lawyer on Which Presidential Acts are Immune. Aired 10-10:30a ET

Aired April 25, 2024 - 10:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[10:00:01]

ELIE HONIG, CNN SENIOR LEGAL ANALYST: But, again, if the National Enquirer wants to buy stories and bury them, they can do that.

ABBY PHILLIP, CNN ANCHOR: And I think that one of the big questions as we continue with this testimony is going to be that was Pecker's advice to Trump that did not happen and the question is why. I do think we want to know what was going through Pecker's mind would ultimately he decided not to sort of have Trump essentially reimburse him for this payoff to Karen McDougal and we'll see if the prosecutors get to that.

JAKE TAPPER, CNN ANCHOR: And we should just remind viewers that we're just seconds away from the U.S. Supreme Court beginning to hear arguments in this big case Donald Trump is making. He's making the argument that he should have immunity from prosecution for actions that he carried out as president relating to January 6th, which he argues were related to his duties. It's going to be a huge case. We're going to bring that to you in seconds.

Meanwhile, of course, there's this other very tawdry thing going on the right side of your screen, where we're bringing updates on the Manhattan case. David Pecker, the tabloid magnate, recalling telling Trump, I think you should buy the story and take it off the market. Sorry.

DANA BASH, CNN ANCHOR AND CHIEF POLITICAL CORRESPONDENT: No. I think what Abby said is true about the sort of part of the conversation that Pecker is testifying about. The other key thing, I should say, prosecutor now is asking Pecker why he told Trump they should buy McDougal's story, quote, I believed the story was true.

TAPPER: We should note that Donald Trump to this day is denying that he had a relationship with Karen McDougal. I believe it would have been embarrassing to himself and also his family, Pecker said as to why he advised Trump to buy the story.

BASH: And what is important here, as we have talked about, Elie, in particular, you, and I think it bears repeating and underscoring, is that what happened with Karen McDougal, why are we even hearing about this, considering the fact that there is no alleged crime here? And it is because the prosecution is clearly trying to establish that Trump was very involved.

HONIG: Exactly. They're trying to show the Stormy Daniels payment didn't come out of nowhere. There was something that led up to this.

By the way, that's a really important piece of testimony for the defense.

BASH: Pecker (INAUDIBLE) telling him about paying for the story, quote, the boss will take care of.

TAPPER: Because I believe what happens, Elie, correct me if I'm wrong, is that Pecker pays for Karen McDougal's story $150,000 and then he never gets repaid. He thought he was going to repay it, and he doesn't get repaid, and he says, oh, okay, well --

PHILLIP: And actually in the indictment, it implies that he spoke to his lawyers who advised him not to get repaid.

TAPPER: Not to get repaid. So, Joshua Steinglass, the assistant district attorney prosecuting Trump here, says he's asking David Pecker to clarify the identity of the boss when Cohen, Michael Cohen, says the boss will take care of it. Pecker explains that by the boss, I mean Donald Trump.

LAURA COATES, CNN ANCHOR AND CHIEF LEGAL ANALYST: You know, every appellate lawyer is going to be looking at this portion of the testimony very closely for the reasons, because this is not the charged conduct. This is the prior behavior that creates a pattern that the prosecutions are hoping to say, this is what they normally did, Stormy seemed different, here's who paid or didn't pay, here's the timing of it, it's closer to the election.

So, they're going to look at these issues and say to themselves, should the jury be hearing this information? It is prejudicial, but it also is probative to this. They have to balance these two things to figure out what the jury should actually hear.

In some cases, have already been overturned for these very reasons, it suggests if the jury hears too much, it might be about non-charged conduct, it's problematic, but Trump right now is referring with attorneys as he's testifying, we're hearing a little bit of color in the courtroom, he's shutting his eyes as he listens.

Remember, this person, David Pecker, is someone he knew for a very long time. This is an overall scheme.

TAPPER: Okay, let's go to the -- I'm sorry to interrupt. Let's go to the U.S. Supreme Court right now where the case is beginning.

D. JOHN SAUER, ATTORNEY FOR FORMER PRESIDENT DONALD TRUMP: -- spanning 200 years, and policy considerations rooted in the separation of powers, all counsel against it.

I welcome the court's questions.

JUSTICE CLARENCE THOMAS, U.S. SUPREME COURT: Mr. Sauer, to your last point, could you be more precise as to the source of this immunity?

SAUER: The source of the immunity is principally rooted in the executive vesting clause of Article 2, Section --

THOMAS: And how does that happen?

SAUER: 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. And Marbury against Madison itself provides strong evidence of this kind of immunity, a broad principle of immunity that protects the president's official acts from scrutiny, direct sitting in judgment, so to speak, of the Article 3 courts. That matches the original understanding of the executive vesting clause.

THOMAS: But how exactly would we determine what an official act is?

SAUER: I point the court to two cases for that. Obviously, Fitzgerald against Nixon is the best guidance that the court gives. The court adopted the outer perimeter test.

[10:05:00]

And this court engaged an analysis there that's very instructive here, where it looked at the level of specificity at which the acts are described in that case, a civil case here, it would be the indictment.

CHIEF JUSTICE JOHN ROBERTS, U.S. SUPREME COURT: Well, what if you have, let's say, the official act is appointing ambassadors and the president appoints a particular individual to a country, but it's in exchange for a bribe? Somebody says I'll give you a million dollars if I made the ambassador to whatever, how do you analyze that?

SAUER: That I think would fall under this court's discussion in Brewster, where the court held with respect to legislative acts that bribery is not an official act, which also matches the court with common law background.

So, the way that this court in Brewster kind of sliced at the joint was to say accepting the bribe and the agreement to sex to bribe are not official acts, that's private conduct, or subsequent appointment would not be -- would be essentially an unrestricted power of this court that Congress couldn't directly regulate.

ROBERTS: Accepting the bribe isn't an official act, but appointing an ambassador is certainly within the official responsibilities of the president. So, how does your official acts or the official acts' order, boundary, come into play when it's going to be official assuming that the president is innocent? But the whole question is whether he's going to be found innocent or guilty.

SAUER: Again, I think Brewster and Johnson do address that, or very persuasively at least, in a slightly different context. Brewster and Johnson say the indictment has to be expunged of all the immune official acts. So, there has to be determination what's official, what's not official.

ROBERTS: You actually expunge the official, you say, okay, we're prosecuted even because you accepted a million dollars. They're supposed to not say what it's for, because the what's-for part is within the president's official duties?

SAUER: There has to be, we would say, an independent source of evidence for that. And keep in mind that this indictment charges what this court has described as unrestrictable powers of the president. So, the premise, the logical premise of this indictment is that Congress, by passing vague and general criminal statutes, has purported to directly regulate the president's exercise of things like the exercise of the employment and removal power, things like his ability to speak directly to the American public, core exercises of his authority under the recommendations clause to recommend to Congress, members of Congress, the measures he thinks necessary and expedient.

So, you have an indictment in this case that goes right to the heartland of the president's powers that alleges a whole series of official acts and tries to tie them together by saying, well, there's a private aim or a private purpose in that case, and that's a situation, which, of course, could be alleged virtually any indictment.

JUSTICE SONIA SOTOMAYOR, U.S. SUPREME COURT: Counsel, it can be alleged, but it has to be proven. Malum in se is a concept long viewed as appropriate in law that there are some things that are so fundamentally evil that they have to be protected against.

Now, I think, and your answer below, I'm going to give you a chance to say if you stay by it, 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?

SAUER: It would depend on the hypothetical, but we can see that could well be an official act.

SOTOMAYOR: It could, and why? Because he's doing it for personal reasons. He's not doing it like President Obama is alleged to have done it to protect the country from a terrorist. He's doing it for personal gain. And isn't that the nature of the allegations here that he's not doing them, doing these acts in furtherance of an official responsibility, he's doing it for personal gain?

SAUER: I agree with that characterization of the indictment and that confirms immunity because the characterization is that there's a series of official acts that were done for an --

SOTOMAYOR: No, because immunity says, even if you did it for personal gain, we won't hold you responsible. What do you -- how could that be?

SAUER: That's an extremely strong doctrine in this court's case law in cases like Fitzgerald. SOTOMAYOR: Well, we go back to Justice Thomas' question, which was, where does that come from? There are amica here who tell us that the founders actually talked about whether to grant immunity to the president. And, in fact, they had state Constitutions that granted some criminal immunity to governors, and yet, they didn't take it up.

Instead, they've passed an impeachment clause that basically says you can't remove the president from office except by a trial in the Senate, but you can impeach him after.

[10:10:04]

So -- or you can impose criminal liability. We would be creating a situation in which we would be saying is, this is what you're asking us to say, which is that a president is entitled, not to make a mistake, but more than that, a president is entitled for total personal gain to use the trappings of his office. That's what you're trying to get us to hold without facing criminal liability.

SAUER: Your Honor, I would say three things in response to that. First, the doctrine that immunity does not turn on the allegedly improper motivation or purpose is something that this court has reaffirmed in at least nine or ten --

SOTOMAYOR: That's absolute immunity, but qualified immunity does say that whatever act you take has to be within what a reasonable person would do. I'm having a hard time thinking that creating false documents, that submitting false documents, that ordering the assassination of a rival, that accepting a bribe, and countless other laws that could be broken for personal gain, that anyone would say that it would be reasonable for a president or any public official to do that.

SAUER: Your Honor, as this court said very persuasively in Fitzgerald that the allegation that this particular act would be done for an unlawful purpose or was unlawful could be made in every case. And therefore, if that were the doctrine, that the allegation of improper purpose is what deprives the objective acts of their immunity, then the immunity would have no purchase. And that's reflected in many of the other court's cases.

JUSTICE KETANJI BROWN JACKSON, U.S. SUPREME COURT: So, isn't the work though of the improper motive, at least in the absolute immunity context, to tell us what are official acts and what are not? I mean, I had understood that even in the -- well, first of all, your ask is absolute immunity, isn't it?

SAUER: Yes, that's --

JACKSON: That's your position is you want the same kind of doctrine that we've applied in other contexts when we say an official has absolute immunity. And my understanding is that when we say that, we mean for their official acts. Is that right?

SAUER: Yes. JACKSON: Okay, so any official acts then in that world, the real decision making from the court standpoint is whether or not something is an official act or not. Correct?

SAUER: That is an important determination by all means.

JACKSON: I mean, that's the determination in the absolute immunity world, because if you determine that it's an official act, then the principle is that you get immunity for it. Correct?

SAUER: That is correct.

JACKSON: All right. So my question, and I think the Chief Justice may have asked this at the beginning is how do you determine what, or maybe Justice Thomas, how do you determine what is an official act? And when we're talking about the kinds of scenarios that Justice Sotomayor brought up, one could say that when the president is using the trappings of his office to achieve a personal gain, then he's actually not acting officially, even if the doctrine was absolute immunity. So what do you say about that?

SAUER: Two things in response to that. First, to the last point, that allegation that this was really motivated by an improper private purpose could be made in every single case.

JACKSON: No, I understand that. But it would have to be made -- I'm just trying to assess. Even if we had the doctrine of absolute immunity, that same allegation and the facts related to it would come in because the person would be arguing that he was not acting in his official capacity, he wasn't doing something official, he was doing it personal, correct?

SAUER: I agree the objective -- or I'm not sure I agree, but the point I would make a response to that is in Fitzgerald against Nixon, this court emphasized that that would result in an intrusive discussion or determination of the president's personal motives for every official act.

And, again, this is not just in the case of the presidency --

JACKSON: All right. Can I just ask you another quick question before my colleagues take it over here? At the beginning of your analysis when you were giving your opening statements, you were talking about -- you suggested that the lack of immunity and the possibility of prosecution in the presidential context is like an innovation. And I understood it to be the status quo.

I mean, I understood that every president, from the beginning of time, essentially, has understood that there was a threat of prosecution, if for no other reason than the Constitution suggests that they can be prosecuted after impeachment, that the Office of Legal Counsel has said forever that presidents are amenable to a threat of prosecution, and they have continued to function and do their jobs and do all the things that presidents do. So, it seems to me that you are asking now for a change in what the law is related to immunity.

[10:15:05]

SAUER: I would, quote, from what Benjamin Franklin said at the Constitutional Convention, which I think reflects best the founders' original understanding and intent here, which is at the Constitutional Convention, Benjamin Franklin said, history provides one example only of a chief magistrate who was subject to public justice, criminal prosecution, and everybody cried out against that.

JACKSON: No, I understand. But since Benjamin Franklin, everybody has thought, including the presidents who've held the office, that they were taking this office subject to potential criminal prosecution. No?

SAUER: I don't. I see the opposite, I see all the evidence going the other way, Marbury against Madison, Mississippi against Johnson discussed this broad immunity principle that --

JACKSON: So, what was up with the pardon for President Nixon? If everybody thought that presidents couldn't be prosecuted, then what was that about?

SAUER: Well, he was under investigation for both private and public conduct at the time, official acts and private conduct. And I think everyone has properly understood that the president -- since like President Grant's carriage riding incident, everyone has understood that the president could be prosecuted --

JUSTICE NEIL GORSUCH, U.S. SUPREME COURT: Counsel, on that score, there does seem to be some common ground between you and your colleague on the other side that no man is above the law and that the president can be prosecuted after he leaves office for his private conduct. Is that right?

SAUER: We agree with that.

GORSUCH: And then the question becomes, as we've been exploring here today, a little bit about how to segregate private from official conduct that may or may not enjoy some immunity. And I'm sure we're going to spend a lot of time exploring that.

But the D.C. Circuit, in Blassingame, chief judge there, joined by the panel, expressed some views about how to segregate private conduct for which no man is above the law from official acts. Do you have any thoughts about the test that they came up with there?

SAUER: Yes. We think in the main that test, especially if it's understood through the lens of Judge Katz's separate opinion, is a very persuasive test. It would be a great source for this court to rely on in drawing this line.

And it emphasizes the breadth of that test. It talks about how actions that are plausibly connected to the president's official duties are official acts. And it also emphasizes that if it's a close case or it appears there is considerations on other side, that also should be treated as immune.

Those are the aspects of that that we'd emphasize as potentially guiding the court's --

GORSUCH: (INAUDIBLE). And in that case, the possibility of further proceedings and trial?

SAUER: Exactly right. And that would be a very natural course for this court to take in this place. The court can and should reverse the categorical holding of the D.C. Circuit that there's no such thing as official acts, especially when it comes to --

GORSUCH: But you'd agree further proceedings would be required?

SAUER: That is correct. There would have to be -- and I would point the court to Anderson against Creighton, where the court said there would be kind of two stages of these further proceedings. There's looking at the indictment itself or in that case it was a complaint, but look at the charging document itself and see whether on the face of it this is alleging official acts, and if not or it can't be determined, then there would be a factual proceeding. And all that under Mitchell against Forsythe and so forth would have to occur before any other proceedings in the District of Columbia.

JUSTICE SAMUEL ALITO, U.S. SUPREME COURT: Mr. Sauer, you began by explaining why you believe that immunity from criminal prosecution is essential for the proper functioning of the presidency. But my question is whether the very robust form of immunity that you're advocating is really necessary in order to achieve that result.

So, just to take one possible alternative, supposed to rule were that a former president cannot be prosecuted for official acts unless no plausible justification could be imagined for what the president did taking into account history and legal precedent and the information that was provided to the president at the time when the act was taken. Would that be sufficient or if it is insufficient, why would it be insufficient?

SAUER: That might be a much better rule than what emerged in the lower courts here. We think it would be insufficient because, again, that long line of cases talking about using the president's motives and the intrusive sort of consideration of the president's motives as transforming acts to official and unofficial would come into play.

And, of course, once you can make that allegation, all of a sudden you've opened the door. You no longer have a per se clear, bright, right rule. You have a determination in every single case.

ALITO: Well, what if it were not? What if it did not involve any subjective element? It was purely objective. You would look objectively at the various relevant factors.

[10:20:00]

SAUER: That sounds to me a lot like Blassingame, and especially viewed in the lens of Judge Katz's separate opinion, and that may not be different than what we're proposing to the court today.

ALITO: Well, Blassingame had to do with the difference between official conduct and private conduct, right?

SAUER: That's correct. Sorry, I understood the court to be asking that.

ALITO: No, this would apply -- and it's just a possibility. I don't know whether it's a good idea or a bad idea or whether it can be derived from the structure of the Constitution or the vesting clause or any other source. But this would be applied on purely objective grounds when the president invokes an official power in taking the action that is at issue.

SAUER: Yes, I believe -- and the reason I think of Blassingame is because it talks about an objective, context-specific determination to winnow out what's official and what is purely private conduct, and, again, with a strong degree of deference to it.

SOTOMAYOR: I'm sorry. If I understood Justice Alito, he's suggesting not that. He's suggesting whether, even if it is an official act, whether you still grant immunity if that act is not viewed as within the round ball. He can correct me if I'm wrong.

ALITO: That was the question.

SAUER: That, I think, would be a superior rule than the categorical denial that emerged in the trial court here. I do think it would --

ALITO: I'm not quite sure why he used the word, plausible, because that seems to negate -- might as well give absolute, if you're saying plausible, because anybody could argue plausibility. You won't even require plausible. We require reasonable in qualified immunity. So --

ALITO: Well, I mean, one might argue that it isn't plausibly legal to order SEAL Team 6, and I don't want to slander SEAL Team 6 because they're -- no, seriously, they're honorable officers, and they are bound by the Uniform Code of Military Justice not to obey unlawful orders. But, no, I think one could say that it's not plausible that that is legal, that that action would be legal.

And I'm sure you've thought -- I've thought of lots of hypotheticals, I'm sure you've thought of lots of hypotheticals where a president could say, I'm using an official power, and yet the president uses it in an absolutely outrageous manner.

SAUER: That (INAUDIBLE) objective determination may well be an interesting approach, yes.

SOTOMAYOR: So, apply it to the allegations here. What is plausible about the president assisting and creating a fraudulent slate of electoral candidates? Assuming you accept the facts of the complaint on their face, is that plausible that that would be within his right to do?

SAUER: Absolutely, Your Honor. I think we have the historical precedent we cite in the lower courts. President Grant sending federal troops to Louisiana and Mississippi in 1876 to make sure that the Republican electors got certified in those two cases, which delivered the election to Rutherford B. Hayes.

The notion that it's completely implausible, I think, just can't be supported based on the face of this indictment or even --

SOTOMAYOR: Knowing that the slate is fake, knowing that the slate is fake, that they weren't actually elected, that they weren't certified by the state, he knows all those things?

SAUER: The indictment itself alleges. I dispute that characterization. The indictment fixes the word, label, to the so- called fraudulent lectures. It fixes 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.

But I want to address a more higher level point, a fundamental point, which is that, as Justice Alito's question indicated, there is a whole series of structural checks other than criminal prosecution that are designed to deter these kind of outlandish scenarios are extraordinarily, obviously, illegal things.

And that's been viewed in this court's opinions going all the way back to at least (INAUDIBLE).

JUSTICE BRETT KAVANAUGH, U.S. SUPREME COURT: Where do you think the D.C. Circuit went wrong in how it determined what was official versus what's personal?

SAUER: Well, I read the opinion below in this particular case as adopting a categorical view. It does not matter is that the logic of their opinion, because there is no immunity for official acts, and therefore, you know, that's the end of the story.

I don't really think they went wrong and Blassingame in the civil context when they engage in the same determination with respect to what's official and what isn't official there. We agree with most of what that opinion says (ph).

KAVANAUGH: And for some official acts that are not within the Article 2 exclusive power, and so official acts but not within the Article 2 exclusive power.

[10:25:04]

Even for those, I assume you would think that a clear statement has to be required, a clear statement in the statute covering the president if the president's official acts are going to be criminalized.

SAUER: Absolutely. Obviously, the issue is, you know, at the highest possible level when it comes to the unrestrictable powers, like as in this indictment, the --

KAVANAUGH: Well, I'm assuming the exclusive powers are walled off and can't be prosecuted before. There are a lot of official powers that are not exclusive to the president under his Article 2 authority. But for those, I understood you to be saying, at a minimum, there would need to be a clear statement in the statute referencing the president so that the president is on notice and can conduct himself or herself accordingly.

SAUER: That's absolutely correct, and that would be consistent both with Franklin and public citizen in cases along a series of other clear --

JUSTICE AMY CONEY BARRETT, U.S. SUPREME COURT: So, you concede that private acts don't get immunity?

SAUER: We do.

BARRETT: Okay. So, in the special counsel's brief on pages 46 and 47, he urges us even if we assume that there's -- even if we were to decide or assume that there was some sort of immunity for official acts, that there were sufficient private acts in the indictment for the trial to go for the case to go back in the trial that began immediately. And I want to know if you agree or disagree about the characterization of these acts as private.

A petitioner turned to a private attorney, was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results. Private?

SAUER: As alleged. I mean, we dispute the allegation, but that sounds private.

BARRETT: It sounds private. Petitioner conspired with another private attorney who caused the filing in court of a verification signed by a petitioner that contained false allegations to support a challenge.

SAUER: That also sounds private.

BARRETT: Three private actors, two attorneys, including those mentioned above, and a political consultant helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding. And petitioner and a co-conspirator attorney directed that effort.

SAUER: You read it quickly. I believe that's private. I don't want to --

BARRETT: So those acts you would not dispute. Those were private, and you wouldn't raise a claim that they were official?

SAUER: As characterized. But we would say, Your Honor, if I may, that what we would say is official is things like meeting with the Department of Justice to deliberate about who's going to be the acting attorney general of the United States, communicating with the American public, communicating with Congress about matters of enormous (INAUDIBLE).

BARRETT: Thank you. Thank you. ROBERTS: Thank you, counsel. And what is the consequence in terms of going forward with your acknowledgement that those are private acts as opposed to official acts?

SAUER: And if you look at the indictment here, there's a bunch of acts that we think are just clearly official. There may be allegations that mostly relate to what the government has described here as private aim or private end. And the court should remand or address itself, but remand for a Brewster-like determination, which is what's official and what's private.

The official stuff has to be expunged completely from the indictment before the case can go forward. And there has to be a determination, at least on remand, of what's official, a two-stage determination of what's official and what's private.

ROBERTS: Well, if you expunge the official part from the indictment, how do you -- I mean, that's like a one-legged stool, right? I mean, giving somebody money isn't bribery unless you get something in exchange. And if what you get in exchange is to become the ambassador to a particular country, that is official, the appointment that's within the president's prerogatives. The unofficial part is I'm going to get a million dollars for it.

So, if you say you have to expunge the official part, how does that go forward?

SAUER: This particular indictment, where we say virtually all the overt conduct is official, we don't believe it would be able to go forward. I mean, there could be a case where it would. But if you look at even the government's brief in this case divides up the indictment into things that, other than the electors' allegations, don't really -- they haven't disputed that they are official acts.

But what they do is say, well, we tie it all together by characterizing it as done in easily the allegations that the court just referred to by an improper private aim or private end. Again, that's their words. And that just runs loggerheads, you know, dead set against this court's case laws. And you don't look at, when immunity determinations, the improper motivation or purpose.

ROBERTS: Thank you. Justice Thomas?

THOMAS: In assessing the official acts of a president, do you differentiate between the president acting as president and the president acting as candidate?

SAUER: Yes, we do. And we don't dispute, essentially, the Blassingame discussion of that.

THOMAS: Okay.

SAUER: That has to be done by objective determinations, not by looking at what was the purpose of what you did. That's the most important point there.

THOMAS: Did you, in this litigation, challenge the appointment of special counsel?

SAUER: Not directly. We have done so in the Southern District of Florida case and we totally agree with the analysis provided by Attorney General Meese and Attorney General Mukasey.

[10:30:04]