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Supreme Court Case May Not Resolve Trump Immunity Once And For All; Justice Seem Skeptical That Trump Has Absolute Immunity But May Not Green-Light Quick Trial In January 6 Cases. Aired 12-12:30p ET

Aired April 25, 2024 - 12:00   ET

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

[12:00:00]

MICHAEL DREEBEN, ATTORNEY FOR SPECIAL COUNSEL JACK SMITH (voice over): On this one, the department hasn't taken a next steps since the Blassingame decision. But let me offer a few thoughts that judge of course, which I think might clarified.

The Blassingame decision focused on objective contextual indications to try to see whether the president was acting as a campaigner as opposed to a -- you know, an officeholder. I think that that decision can also be made by looking at what the president actually said. And let me illustrate that with an allegation that I think my friend talked briefly.

In one of the interactions between petitioner and a state official, petitioner is alleged to have said, I need you to do is to find me 11,000 votes and change. I think if you look at that that content, it's pretty clear to that petitioner is acting in the capacity as office seeker, not as president and we would look at that content.

JUSTICE NEIL GORSUCH (voice over): OK. But the test -- I'm just focused on the legal test.

DREEBEN (voice over): Right.

GORSUCH (voice over): I'm not hearing any objections to it.

DREEBEN (voice over): Other than I think that the D.C. Circuit placed more content consideration off limits, then I would.

GORSUCH (voice over): OK. All right. And then I wanted to understand it on the core immunity, or whatever word we use that it seems to me that we're narrowing the ground of dispute here considerably. Do we look at the motives -- the president's motives for his actions? I mean, for example, he has lots of war powers as we've discussed, but he might use them in order to enhance his election, his personal interests. Is that a relevant consideration when we're looking at core powers?

DREEBEN (voice over): So, I am thinking of this more as looking at the objective of the activity as opposed to the kind of subjective motive in the sense that your honors talk about. I think that there is a lot of concern about saying an electoral motive to be reelected in such. GORSUCH (voice over): Every first term president -- everything he does can be seen through the prism by critics, at least of his personal interest in reelection.

DREEBEN (voice over): Yes.

GORSUCH (voice over): So, you wouldn't want that. I think you would say personal motivations off limits with respect to the core powers.

DREEBEN (voice over): And probably -- well, with respect to the core powers, we think those are just things that can't be regulated at all, like the pardon power and veto.

GORSUCH (voice over): Regardless of motive.

DREEBEN (voice over): Correct.

GORSUCH (voice over): Regardless of motive --

DREEBEN (voice over): That's right. That's right.

GORSUCH (voice over): OK. So, then we're in the non-core powers, what we're fighting over. What role do motives play there? I mean, one could remove an appointee that -- well, first of all, is maybe ask this first. Is removing an appointee, a presidential appointee, a core power or a non-core power.

DREEBEN (voice over): And so, here I might need to differentiate between the principal officers that this court and in cases like Myers and Seila law has regarded as having a constitutional status of being removable at will from inferior officers, where Congress does have some regulatory latitude to impose restrictions on removal.

GORSUCH (voice over): Sure.

(CROSSTALK)

GORSUCH (voice over): Put that aside. Yeah. I understand that.

DREEBEN (voice over): Putting that aside, yes, appointing a principal officer is a core power, I am not prepared to say that there is no potential criminal regulation to say, you can't do it for corrupt purposes to enrich yourself, for example.

GORSUCH (voice over): Bribery. All right. So, that's what I was wondering, the motives come into the core power analysis or not. And now I'm hearing -- I thought I heard no, and now I'm hearing maybe.

DREEBEN (voice over): I think maybe might be a little bit more appropriate because it's not involved in this case. The department has not had to take a position on exactly how these core powers would be resolved under an as applied constitutional analysis, none as involved in this case.

GORSUCH (voice over): And I guess I'm wondering, and I'm not concerned about this case so much as future ones too. But these non-core powers and maybe core powers where a president is acting with a at least in part, a personal interest in getting reelected. Everything he does, yeah, he wants to get reelected. And if you're -- if you're allowing in motive to color that, I'm wondering how much is left of either the core or non-core powers.

DREEBEN (voice over): So, I would be fine with carving that out and deeming that to be something that's intrinsic in our electoral system. We're not talking about applying criminal law to somebody who makes an announcement that this program will be good for the United States.

And somebody could come along and say, well, you really did it to get reelected. Leaving aside whether any of that violates a criminal law, I know that the next question is assume that it does. I'm doubtful that it in fact does because I don't think criminal laws generally operate on motives as opposed to objectives and purposes. But --

[12:05:00]

GORSUCH (voice over): Well, intentions. I mean, if you can frame a motive as an intention and intention is motive as you well know, and every day in the week.

DREEBEN (voice over): Yes.

GORSUCH (voice over): So, let's put that aside.

DREEBEN (voice over): I understand. Well, putting that aside that really to me falls in a very different category. And it is also tied --

GORSUCH (voice over): Some motives or intents that that are cognizable and others that aren't. I mean, it's awkward, right? When we look at back at -- like the injunction back to (inaudible) in the early cases. You can enjoy the president.

DREEBEN (voice over): Yeah.

GORSUCH (voice over): Also holding him in contempt, all right --

DREEBEN (voice over): A sitting president.

GORSUCH (voice over): For sure, for sure.

(CROSSTALK)

GORSUCH (voice over): Let me just spin this up just a second, right. And it didn't matter what the president's motives were. We're not going to look behind it. And same thing in Nixon, we said, gosh, Nixon versus Fitzgerald, that's something courts shouldn't get engaged in because presidents have all manner of motives.

And again, I'm not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives, whether it's re-election or who knows what corrupt means in 1512, right? We don't know what that means. Maybe we'll find out sometime soon. But the dangerousness of accusing your political opponent of having bad motives. And if that's enough to overcome your core powers or any other limits -- reactions thoughts?

DREEBEN (voice over): Yeah. So, I think that you're raising a very difficult question.

GORSUCH (voice over): That's the idea, right?

DREEBEN (voice over): That is the idea.

GORSUCH (voice over): Testing -- testing the limits of both sides' arguments.

DREEBEN (voice over): And I got to say something that I don't normally say, which is that's really not involved in this case. We don't have bad political motive in that sense.

GORSUCH (voice over): I understand that. I appreciate that. But you also appreciate that we're writing a rule for the ages.

DREEBEN (voice over): Yes. And I think I would start by looking at the statutes, and then seeing what restrictions they do place on the president's conduct. And, for example, the statute that prohibits fraud to defeat the lawful functions, the United States. The statute defines what the purpose is that the defendant has to have in mind. It has to be to defeat something that the United States is doing, and it has to be by deception.

I don't think that that gets us into the realm of motive hunting in the area where we are as concerned, I think, as the court would be about doing something that would undermine the presidency and the executive branch. And 1512(c)(2), we may have different views on the clarity and the scope of that statute.

I think if the court does interpret corruptly as involving a consciousness of wrongdoing and elevates that to consciousness of illegality, then we're in a different realm and wanting to get reelected is not an illegal motive. And you don't have to worry about prosecuting presidents for that.

GORSUCH (voice over): OK. Thank you, Mr. Dreeben.

UNIDENTIFIED MALE: Justice Kavanaugh?

JUSTICE BRETT KAVANAUGH (voice over): As you've indicated, this case has huge implications for the presidency, for the future of the presidency for the future of the country in my view. You've referred to the department a few times as having supported the position. Who in the department is that the president, the attorney general?

DREEBEN (voice over): The solicitor general of the United States, part of the way in which the special counsel functions is as a component of the Department of Justice, the regulations envision that we reach out and consult. And on a question of this magnitude that involves equities that are far beyond this prosecution as the questions of the court.

KAVANAUGH (voice over): So, it's a solicitor general? DREEBEN (voice over): Yes.

KAVANAUGH (voice over): OK. Second, like Justice Gorsuch, I'm not focused on the here and now of this case. I'm very concerned about the future. And I think one of the court's biggest mistakes was Morrison versus Olson.

I think that was a terrible decision for the presidency, for the country. And not because there were bad people who are independent counsels, but President Reagan's administration, President Bush administration, President Clinton's administration were really hampered in their view, all three by the independent council structure.

And what I'm worried about here is that that was -- let's relax Article 2 a bit for the needs of the moment. And I'm worried about the similar kind of situation applying here. That was a prosecutor investigating a president and each of those circumstances and someone picked from the opposite party, the current president and usually, was how it worked.

[12:10:00]

And Justice Scalia wrote that the fairness of a process must be judged on the basis of what it permits to happen, not what it produces in a particular case. You've emphasized many times regularity the Department of Justice. And he said -- and I think this applied to the -- on a counsel system and it could apply if presidents are routinely subject to investigation going for.

One thing is certain however, it involves investigating perhaps prosecuting a particular individual. Can one imagine a less equitable manner, fulfilling the executive responsibility to investigate and prosecute? What would the reaction be if in an area not covered by the statute?

The Justice Department posted a public notice, inviting applicants to assist in the investigation and possible prosecution of a certain prominent person. Does this not invite what Justice Jackson described as picking the man and then searching the logbooks or putting investigators to work to pin some offense on him?

To be sure the investigation must relate to the area of criminal offense specified by the statute. But that has often been nothing prevents it from being very broad, I paraphrased at the end because it was referring to the judges.

That's the concern going forward is that the system will -- when former presidents are subject to prosecution in the history of Morrison versus Olson tells us it's not going to stop. It's going to -- it's going to cycle back and be used against the current president or the next president or in the next president and the next president after that.

All that I want you to try to allay that concern. Why is this not Morrison v. Olson redux if we agree with you? DREEBEN (voice over): Well, first of all, the independent counsel regime did have many structural features that emphasized the independence at the expense of accountability. We don't have that regime now. But even under that regime, Justice Kavanaugh, I think if you look at Lawrence Walsh's report on Iran-Contra. I think this goes to a very fundamental point for the court to consider.

Judge Walsh said, I investigated these matters. The proof did not nearly come close to establishing criminal violations. So, we've lived from Watergate through the present -- through the independent counsel era with all of its flaws, without these prosecutions having gone off on a runaway train.

KAVANAUGH (voice over): Well, I think President Reagan, President Bush and President Clinton, whether rightly or wrongly thought opposite -- thought contrary to what you just said.

DREEBEN (voice over): I think nobody likes being investigated for a crime. But it didn't result in the kind of vindictive prosecutions that I think your honor is raising as a possibility.

KAVANAUGH (voice over): Yeah.

DREEBEN (voice over): We have a different system now. I think there was a consensus throughout Washington that there were flaws in the independent counsel system. It lapsed. We now are inside the Justice Department with full accountability resting with the attorney general.

So, the Special Counsel Regulations now don't operate the way that the independent counsel regulations do. And this court would have something to say about it. I think if the independent counsel statute were revived, I'm not sure that anybody is in favor of that.

KAVANAUGH (voice over): Right. Now I was just saying this is kind of the mirror image of that is one way someone could perceive it. But I take your point about the different structural protections internally. And like Justice Scalia said, let me -- I do not mean to suggest anything of the sort in the present case. I'm not talking about the present case. So, I'm talking about the future.

Second, another point you said, talked about the criminal statutes. It's very easy to characterize presidential actions as false or misleading under vague statutes. So, President Lyndon Johnson statements about the Vietnam war, say something is false. Turns out to be false that he says about the Vietnam war, 371 prosecutions after he leaves office.

DREEBEN (voice over): I think not. But we need this is an area that I do think that merits some serious and nuanced consideration. Statements that are made by a president to the public are not really coming within the realm of criminal statutes. They've never been prosecuted. I realized that the court can say, well, what if they were.

And then I think you get to what I would regard as a hard constitutional question that would probably guide the court away from trying to resolve today. Although, I do think it's very different from our case and distinguishable in important ways. But you're dealing here with two branches of government that have a paramount interest in the integrity and freedom of their interactions with each other.

On the one hand, the president, of course, should be very free to send usually his cabinet officials and sub cabinet officials to testify -- to Congress to provide them with the information needed to enact legislation and to make national policy. And we're very concerned about anything that would travel that.

[12:15:00]

On the other side of the equation, Congress has a compelling interest in receiving accurate information and at the very least -- that information that is intentionally and knowingly false. That would pollute the legislative process.

KAVANAUGH (voice over): I think it came up before President Ford's pardon, a very controversial in the moment.

DREEBEN (voice over): Yes.

KAVANAUGH (voice over): Hugely unpopular, probably why he lost in '76.

DREEBEN (voice over): Yes.

KAVANAUGH (voice over): Now looked upon as one of the better decisions in presidential history, I think, by most people. If he's thinking about -- well, if I grant this pardon to Richard Nixon, could I be investigated myself for obstruction of justice on the theory that I'm interfering with the investigation of Richard Nixon?

DREEBEN (voice over): So, this would fall into that small core area that I mentioned to Justice Kagan and Justice Gorsuch of presidential responsibilities that Congress cannot regulate.

KAVANAUGH (voice over): How about President Obama's drone strikes?

DREEBEN (voice over): So, the office of legal counsel looked at this very carefully and determined that, number one, the federal murder statute does apply to the executive branch. The president wasn't personally carrying out the strike. But the aiding and abetting laws are broad.

And it's determined that a public authority exception that's built into statutes and that applied particularly to the murder statute, because it talks about unlawful killing did not apply to the drone strike. So, this is actually the way that the system should function.

The Department of Justice takes criminal law very seriously. It runs through the analysis very carefully with established principles. It documents them. It explains them. And then the president can go forward in accordance with it. And there is no risk of prosecution for that course of activity.

KAVANAUGH (voice over): Thank you for your answers. UNIDENTIFIED MALE: Justice Barrett?

JUSTICE AMY CONEY BARRETT (voice over): Mr. Dreeben, I want to pick up with that public authority defense. So, I'm looking at the OLC memo that David Barron wrote that you cited in your briefs. And he describes the public authority defense citing the Model Penal Code. There are few different definitions, but I'll just highlight this one.

Justifying conduct which is required or authorized by the law defining the duties or functions of a public officer, the law governing the armed services or lawful conduct of war, or any other provision of law imposing a public duty. That sounds a lot like dividing a line between official and private conduct. I think it's narrower and I recognize it's a defense, not an immunity.

But when we look at -- when you look at the definition of it, are you acting within the scope of authority conferred by law or discharging a duty conferred by law. I think it's narrower than Blasingame, narrower than Nixon versus Fitzgerald, but that's what it sounds like to me. Do you agree or disagree?

You know, just fired, I certainly understand the intuition that when you act outside of your lawful authority, it's kind of gone in a frolic and detour, you're no longer carrying it out. I don't really think that that quite works for presidential activity.

The only way that he could have implemented the orders is by exercising his commander in chief authority over the armed forces or his authority to supervise the executive branch. Those seem like core executive acts to me. There is such a possibility as an unlawful executive act.

I'm not sure that I understand your answer. I mean, I was thinking it seemed to me that in your briefs. And today, when you refer to the public authority defense, you just said, that's one of the built-in protections and why immunity is not necessary.

Because in some of these instances, when the president takes such actions that, you know, the courts been asking you might this result in criminal prosecution. You say, well, he could raise this public authority defense. And so, I'm saying isn't this public authority defense, if raised. Doesn't it sound like a defense that says, well, I had -- I was authorized by law to discharge this function.

DREEBEN (voice over): And therefore, I acted lawful.

BARRETT (voice over): Therefore, I acted lawfully.

DREEBEN (voice over): Yes.

BARRETT (voice over): And it's not criminally liable.

DREEBEN (voice over): Correct.

BARRETT (voice over): Does that involve a look into motives? Kind of this gets to what Justice Gorsuch was asking you. Could you say I was acting within the scope of my authority, by granting a pardon, removing a cabinet officer, but then the public authority defense might not apply because you had a bad motive in doing so?

DREEBEN (voice over): No. I don't think so, Justice Barrett. I think that it operates based on objective facts disclose to counsel, counsel then provides the advice in this case, the Department of Justice, and it's an objectively valid defense. It's a complete defense to prosecution.

BARRETT (voice over): So, what would be so bad? I mean, one thing that strikes me as different, well, one thing that's obviously different between the public authority defense and immunity is an interlocutory appeal and having it resolved at the outset.

What would be so bad about having a question like that resolved at the threshold, having it be an immunity, the same kind of question that could be brought up as a defense later, but have it be brought up at the threshold as an immunity. And then an interlocutory appeal would be available. And it would be a freedom from standing trial, but not a -- not a get out of jail free card.

[12:20:00]

DREEBEN (voice over): Yes. I understand that. And I think that if the court believes that that was the appropriate way to craft presidential protections, it has the authority to craft procedural rules that implement its Article 2 concerns. That said, the public authority is -- we're calling it a defense, but under many statutes, it's actually an exception to liability itself. And what you're really talking about is trying the general issue.

And generally, in criminal cases, even cases that involve First Amendment issues like threat statutes, the jury is the determinant of the facts. And I have a little bit of difficulty with the idea of trying the whole public authority issue separately to the judge and having that go up on interlocutory appeal with review of facts before you could ever get it forward into a criminal case.

That said, if I would prefer a regime in which the court altered some of the procedural rules surrounding the president, then a total absolute blanket immunity that takes away the possibility of criminal prosecution, even if it was a core violation of the statute in the teeth of attorney general advice and has no overriding public policies.

BARRETT (voice over): You think it has to be a jury question? And I mean, I -- let's see, I wasn't necessarily proposing actually treating it as a defense that was done at the outset. And then subject to an interlocutory appeal, I was proposing. What about an immunity doctrine that drew from the public authority defense that the Department of Justice thinks would otherwise apply?

So, just go with me on that for a minute. Why would it be so bad for it not to be a jury question? I mean, it seems to me that some of these Article 2 concerns would be exacerbated by having it go to a jury rather than a judge. DREEBEN (voice over): So, I think some of them are judge questions that could be resolved on the face of the indictment. If the Department of Justice ever returned an indictment that said, the issuance of this pardon or this series of pardons, constituted obstruction of justice, have a little difficulty hypothesizing it.

But a motion could be made on the face of the indictment that says, Article 2 precludes Congress from regulating these activities, the indictment needs to be dismissed. And if the court wish to attach to that kind of a rule interlocutory appeal, then that would be a lesser safeguard than the one that my friend is proposing here.

Other kinds of defenses, though, really do intersect with the general issue. And for those, I have a much greater time seeing how the court could implement that. And would there be costs in going to trial? Yes, there is no perfect system here. We are trying to design a system that preserves the effective functioning of the presidency and the accountability of a former president under the rule of law.

And the perfect system that calibrates all of those values, probably has not been devised. I think that the system that we have works pretty well, maybe it needs some a few ancillary rules. It is different from the radical proposal of a friend.

BARRETT (voice over): Oh. I agree. Let me ask you about state prosecutions. Because if the president has some kind of immunity that's implicit in Article 2, then that immunity would protect him and from state prosecutions as well.

DREEBEN (voice over): Of course.

BARRETT (voice over): A lot of the protections that you're talking about are internal protections that the federal government has protections in the Department of Justice, which obviously are not applicable at the many, many, many, many state and local jurisdictions across the country. What do you have to say to that?

DREEBEN (voice over): So that raises the supremacy clause issue. And the court would run a supremacy clause analysis that would probably start with basic principles like McCulloch versus Maryland. The states do not have the authority to burden federal functions and would -- then kind of move through in renagel. One of the Court said that a state murder prosecution of a federal official, guarding a Supreme Court justice and who fired a shot was not permissible.

If the court thought that you needed a more categorical rule for the states. I think the supremacy clause certainly leaves it within the courts prerogative to determine that the president, unlike all other officials deserves more of a robust federal defense than what I've just described.

BARRETT (voice over): And it would still be a defense in the states, it wouldn't be -- I mean, that's my point like -- you know, it's one thing to say, well, the president -- they're not going to be these prosecutions that are politically motivated. The things that Justice Kavanaugh was referring to that might be the danger of this system. [12:25:00]

One thing that we have to worry about that might not carry the day, but you know, that's a concern. It's totally different when you take it outside of the Department of Justice and its structures. And then you throw it out elsewhere the idea across the states, the idea of an immunity, I think has a lot more purchase. If you're talking about something that protects the former president from standing trial and the state and local level.

DREEBEN (voice over): So, I don't know that you would have to design a system in which the president would have to stand trial at the state and local level. It's certainly within the courts' authority as a matter of supremacy clause law to find an immunity.

But we have been talking here about that some length on the distinction between official acts and private acts, that will have to be determined by some sort of a process, any immunity defense that the court announces can still be met by a state assertion that we're prosecuting private conduct. You're going to have to have some process.

I think having some legal process is not a reason to cast aside a nuanced system that actually looks at what protections are necessary as opposed to what would provide the absolute maximum inflation for former presidents even if we acknowledge that it's highly prophylactics.

BARRETT (voice over): Totally agree. And I wasn't actually contrasting the absolute immunity rule. I was saying that if there was some sort of official private, there are consequences towards about making immunity. OK. And since you bring up the private acts. This is my last question.

So, I had asked Mr. Sauer about -- on page 46 and 47 of your brief.

DREEBEN (voice over): Yes.

BARRETT (voice over): You say, even if the court were inclined to recognize some immunity for former presence official act, it should remand for trial because the indictment alleges substantial private conduct.

DREEBEN (voice over): Yes.

BARRETT (voice over): And you said that the private conduct would be sufficient?

DREEBEN (voice over): Yes.

BARRETT (voice over): The special counsel has expressed some concern for speed and wanting to move forward. So, you know, the normal process what Mr. Sauer asked would be for us to remand, if we decided that there were some official acts immunity. And to let that be sorted out below. It is another option for the special counsel to just proceed based on the private conduct and drop the official conduct. DREEBEN (voice over): Well, two things on that, Justice Barrett. First of all, there's really an integrated conspiracy here that had different components as alleged in the indictment, working with private lawyers to achieve the goal to the fraud. And as I said before, the petitioner reaching for his official powers to try to make the conspiracies more likely to succeed.

We would like to present that as an integrated picture to the jury, so that it sees the sequence and the gravity of the conduct and why each step occurred. That said, if the court were to say that the fraudulent electoral scheme is private, reaching out to state officials, as a candidate is private, trying to exploit the violence after January 6, by calling senators and saying please delay the certification proceeding is private campaign activity.

We still think contrary to what my friend said that we could introduce the interactions with the Justice Department, the efforts to pressure the vice president for their evidentiary value as showing the defendants knowledge and intent. And we would take a jury instruction that would say, you may not impose criminal culpability for the actions that he took.

However, you may consider it insofar as it bears on knowledge and intent. That's the usual rule with protected speech, for example, under Wisconsin versus Mitchell. My friend analogizes this to the speech or debate clause.

Well, we don't think the speech or debate clause has any applicability here. Some very explicit constitutional protection, that says senators and Representatives shall not be questioned in any other place. So, it carries an evidentiary component that's above and beyond whatever official act immunity he is seeking.

And the last thing I would say on this is we think that the concerns about the use of evidence of presidential conduct that might otherwise be official and subject to executive privilege is already taken care of by United States versus Nixon. That balances the president's interests in confidentiality against the need of the judicial system for all available facts to get to the truth. And once that has been overcome, we submit the evidence can be used, even if culpability can't rest on it.

BARRETT (voice over): Thank you.

UNIDENTIFIED MALE: Justice Jackson?

JUSTICE KETANJI BROWN JACKSON (voice over): Just to pick up where Justice Barrett left off. I think I heard you say that it -- even if we decide here or something or a rule, that's not the rule that you prefer. That is somehow separating out private from official acts and saying that that should apply here. There is sufficient allegations in the indictment in the government's view that fall into the private acts bucket that the case should be allowed to proceed

DREEBEN (voice over): Correct. JACKSON (voice over): Because in an ordinary case, it wouldn't be stopped just because some of the acts are allegedly immunized, even if people agree that some are immunized. If there are other acts that aren't the case would go forward.

DREEBEN (voice over): That is right.

JACKSON (voice over): All right. And going back to the clear statement argument, I'm struggling with that argument.

[12:30:00]