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Welcome to scot Discast, a project
of the Federalist Society for Law and Public

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Policy Studies. Our contributors joined us
from around the country to bring you expert

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commentary on US Supreme Court cases as
they are argued and the decisions are issued.

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The Federalist Society takes no position on
particular legal or public policy issues.

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All expressions are those of the speaker. Hello, and welcome to scot Discast.

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I'm your host, Kyle hammernis On, behalf of the Faculty division of

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the Federalist Society. We are here
today to discuss Trump versus United States,

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which was argued before the Supreme Court
on April twenty fifth, twenty twenty four.

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It is my honor to introduce our
guests today, Stephen Bradbury. Stephen

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is a Distinguished Fellow at the Heritage
Foundation. He has also served in multiple

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administrations, first in the George W. Bush administration as the Principal Deputy and

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Acting Assciation Attorney General for the Office
of Legal Counsel in the US Department of

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Justice, and then in the Trump
administration as the Senate Confirmed General Council of

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the US Department of Transportation. And
with that, i'd like to turn things

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over to our guests to summarize the
background of the case and the lower courts

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proceedings. Great Kyle, thanks so
much pleasure to be here. This is

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the prosecution brought by Special Council Jack
Smith against former President Donald Trump that's colloquially

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known as the January sixth prosecution or
case here in Washington, d C.

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Is the second of two federal criminal
indictments brought against President Trump by Jack Smith.

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The first one is the Document's case
down in Florida, but then this

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January sixth case. This case is
largely based on the evidence that was developed

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by the January sixth Congressional committee that
investigated the riots and the break in of

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the Capitol on January sixth, and
put together evidence purporting to tie Donald Trump

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to the events of January sixth.
Jack Smith then weaves that into an indictment

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that was approved by a grand jury
in the District of Columbia and brought in

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federal court before Judge Tanya Chuckkin,
Federal District judge in DC. The charges

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in the indictment against Trump in this
case involve allegations of fraud on the United

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States, conspiracy to defraud the United
States, interference or conspiracy to interfere with

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official proceedings of the federal government,
and also a charge of conspiracy to deny

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voting rights to American citizens, all
related to activities around the election of twenty

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twenty and President trum efforts to undermine
the results of the election in certain states

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or cause states to reconsider those results, recount the votes, etc. The

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conduct that's alleged in the complaint,
and that the complaint charges underlies these alleged

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crimes involves the former president communicating his
views to the American people through tweets,

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speeches, otherwise, that the voting
was infected with fraud and anomalous activities in

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the various states that called into question
the certified results in those states. His

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efforts to communicate with state legislators and
state officials to cause them to reconconsider,

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take another look at the votes,
accept his concerns about the fraud in the

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election, and his discussions with his
subordinates in the Department of Justice, and

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his efforts to urge the Acting Attorney
General and others in the Department of Justice

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to take action on these theories of
voting fraud and to send letters or communicate

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to the states the views of the
Justice Department, really the President's views that

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they need to reconsider their votes,
his communications with his own vice president,

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who is the president was the president
of the Senate, presiding at the joint

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session of Congress when they were gathered
to count the electoral votes and certify the

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final results of the election, and
urging the vice president to act to push

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off or stall the certification of the
vote. Similar discussions with other members of

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Congress to do the same. These
charges before Judge Chuckin relate obviously to a

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lot of activities of the president that
involve speech, involved petitioning state governments based

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on his complaints about the way the
election was conducted, efforts to manage his

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own subordinates within the executive branch to
take action, and communications with Congress.

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Kind of mixed in there are what
you might describe as official acts of a

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president in office, also some acts
that you might describe as the private acts

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of a candidate for office, all
kind of mixed together in the various allegations

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in the indictment. So President Bush
and his lawyers brought a number of motions

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before Judge Chuckkin to try to get
some or all of these charges dismissed,

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and those motions included using the First
Amendment as a defense, but also claiming

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that to the extent what's being charged
in the indictment involved the official actions of

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a president, he as a former
president, was absolutely immune from criminal liability

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for any of those actions. And
this argument about absolute immunity for former president

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was patterned by his lawyers after the
similar doctrine of absolute immunity that the Supreme

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Court recognized way back in the nineteen
eighties in a case called Nixon versus Fitzgerald.

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And this was absolute immunity the Supreme
Court has recognized for civil liability,

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that is, civil lawsuits that might
be brought against the former president. In

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the case of Nixon versus Fitzgerald,
it was an official in I believe the

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State Department who had been fired from
his job, removed from office, and

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he claimed improperly and he brought a
lawsuit against a number of Nixon administration officials,

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including the former President of the United
States, Richard Nixon, and Nixon

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said, wait a minute, I
should be immune, because if you don't

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give me immunity from a civil charge
like this, future presidents will be hampered

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in their willingness and ability to carry
out the functions of their office, because

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they could potentially face unlimited civil liability
lawsuits for all manner of grievances involving the

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official actions of the White House official
actions of the President, and the Supreme

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Court agreed with that argument and recognized
a doctrine of absolute immunity for civil liability

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against a former president. And the
scope of that immunity is very broad.

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It reaches to what the Court described
as the outer perimeter of the official actions

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of a president. So if there's
any plan argument that what the president was

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doing was within his authority as commander
in chief for chief executive of the executive

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Branch under the Constitution, that he
would have absolute immunity from civil liability.

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So President Trump argued for the same
kind of immunity for criminal liability. This

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is not something Supreme Court has ever
held. This is a new This would

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be a new extension of immunity,
a new immunity doctrine. And that's because

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this is an unprecedented situation where the
Justice Department of the United States, through

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Special Council Jack Smith, is attempting
to prosecute a former president for actions he

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took while in office, and that's
never happened before in the history of the

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country. So obviously a Supreme Court
never had a previous opportunity to address this

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question of immunity for criminal liability for
presidents. This argument didn't go so well

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before Judge Chuckkin in the DC.
She gave it the back of her hand.

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She rejected any notion that a former
president could claim any protection whatsoever for

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his official actions or arguably official actions, from criminal liability of any kind under

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any federal criminal statute. And as
you know, some criminal statutes are expressed

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in very broad terms. They talk
about whoever does this or if any person

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does X or y. And if
you think about applying some of those statutes

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to the official acts of a president, the potential for creative application could be

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quite expansive. Think about the charges
brought in this case, fraud on the

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government. Any communication a president makes
to Congress to other elements of the federal

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government. If there's an argument that
those communications were misleading or false, there's

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at least the potential for criminal life
ability there as a fraud or interfering with

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an official proceeding. Anytime the president
takes an action that could arguably impede Congress's

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ability to meet or conduct business,
or some agency or entity of the government.

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Same kind of argument could be made
to attempt to impose criminal liability on

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a former president who had approved an
action like that. So the issues are

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novel, the issues are serious.
Judge Chutkin did not think there was any

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basis for any protection whatsoever. It
went up to appeal to the d C

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Circuit, and President Trump took an
emergency appeal up trying to get basically an

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order blocking the trial from moving forward, and the DC Circuit heard argument on

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an accelerated basis this past December,
and in early January issued an opinion from

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a three judge panel in DC that
again rejected any notion that the president could

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claim protection immunity of any kind and
really sort of denigrated the argument that was

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made by President Trump's lawyers. You
probably saw the coverage about some of the

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exchanges in the oral argument before the
panel of judges in d C, where

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they got the president's lawyer to acknowledge
certain hypothetical extreme situations where the immunity they're

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claiming might apply to actions that one
would think were pretty outrageous, and that

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got a lot of coverage. But
again the bottom line was the DC Circuit

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said no protection, No matter how
broadly worded the statutes are, no former

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president has any protection against criminal liability. We're just going to leave it up

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to the discretion of politically appointed prosecutors
in the Justice Department who may be able

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to get an indictment from grand jury
in a district like the District of Columbia

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that may be very much politically opposed
to the former president in question. And

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that arguably is what has happened right
here in DC, and so much to

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the surprise I think of a lot
of legal analysts and observers. The Supreme

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Court was very interested in this issue. Initially, the Special Council Jack Smith

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tried to get the Supreme Court to
take cert on this case back in December

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to short circuit President Trump's assertion of
immunity and force an early trial. Jack

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Smith is hoping to get a trial
on this January sixth case before the election.

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The Supreme Court denied his effort to
get cert early. They waited for

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the DC Circuit to hand it's opinion
down, and then President Trump petitioned for

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cert on the case. Actually he
filed an application for emergency relief, and

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the court essentially converted that into a
cert petition, ordered Jack Smith to respond,

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and took a lot of Amika's briefs
in, and then in pretty quick

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order, granted cert I think,
to the surprise of a lot of observers,

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and set it for argument on April
twenty fifth as a final argument in

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the term this year. So the
argument occurred a week ago today. So

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Kyle, I'll turn it back to
you. That's the lead up to the

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oral argument from last week. Thank
you so much. That was really,

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really excellent, really setting the stage
for us. So as we turned toward

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the oral argument, now, can
you give us just, you know,

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kind of your thirty thousand foot view
of the argument before maybe we dive into

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particulars. I think the bottom line
is a number of justices, perhaps a

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majority, seemed very concerned about the
potential for a negative impact, chilling effect

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on future presidents from broad notions of
criminal liability, and seemed to be exploring

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very seriously the possibility of some middle
ground, some form of protection for the

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official actions of a former president from
criminal liability. You might call it immunity.

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You might say there were exploring ideas
of qualified immunity. We can get

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into a little more as we discuss
this what that might mean. But I

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think although there didn't seem to be
appetite among the justices to go the whole

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way that President Trump's attorneys, led
by John Sower, who presented the argument

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we're arguing for in terms of very
broad absolute immunity, nevertheless, it did

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seem there's serious consideration given to some
form of immunity or protection likely to result

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in sending the case back potentially to
the district Court again to reconsider these issues

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in light of the guidance that the
court will give in this case. And

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the bottom line there in terms of
timing is that almost certainly means the underlying

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trial in this January sixth case is
not going to happen before election day.

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So I guess before we get into
any ramifications, and I know you just

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mentioned one right that this cases looks
like it will be pushed back to the

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district Court and then pass the election
date and not necessarily interfere with the election

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as much as some had thought it
would. Do you want to talk more

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about like the qualified immunity kind of
middle ground that you had just mentioned in

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your previous response. Yes, I
think for people's understanding, it's probably best

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to think in terms of layers of
potential issues. I described the immunity of

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Nixon versus Fitzgerald that President Trump is
arguing for. But before you get there,

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there are layers that, layers of
issues you might address even before you

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get to that point. So,
for example, I describe the broad nature

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of some of these criminal statutes,
and I think the Court is going to

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at least several members of the Court
will think hard about, well, what

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might it mean for a future president
if there were no restrictions on the application

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of those rad criminal statutes to all
manner of actions that a president might take

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in office. Would there be any
issue in terms of interfering with the president's

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ability to carry out his duties under
Article two of the Constitution. I think

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that's the primary concern of the Court, and that was expressed by a number

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of Justices, Justice Alito, the
Chief Justice, Chief Justice Roberts, Justice

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Kavanaugh most clearly. Justice Barrett also
explored what of the charges in this case

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might have might have involved official actions
of the president and what might have involved

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private conduct and what were the views
of the parties on those questions, all

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getting at this concern that the application
of criminal broadly worded criminal statutes to official

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actions of the president of certain kinds
might have a chilling effect on the willingness

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to future presidents to undertake important actions
that really are needed for the country to

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serve the interest of the country.
A second, and so that raises this

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issue of what how do you distinguish
between an official act of the president and

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a private act, a personal act
of the president not in his official capacity,

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A line that I think is going
to be important for this case if,

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as I suggest, it might be
remanded for further consideration in the lower

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courts. But then a second question
is what type of duties of the president

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under Article two should be immune?
Should certain core functions of the president that

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are essential to his carrying out his
functions as president under Article two should they

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get special protection? I think everybody
agreed in the argument, including the Jacksmith,

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the lawyer who's arguing for the Justice
Department, Michael Dribin, who's a

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longtime veteran of the Slicter General's Office
criminal law expert for the sg's office.

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Even he I think acknowledged that if
you're talking about core duties, core authorities

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of the president, like the pardon
power or the authority to direct the troops

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on the battlefield as commander in chief, appointment power, deciding who he's going

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to appoint to office, that those
types of core functions should be free from

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criminal challenge criminal liability. Now,
if the president did those functions in exchange

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for a bribe, for example,
the taking of the bribe, I think

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everybody agreed, including President Trump's lawyer, everybody agreed that that could be the

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bribe itself, the taking of the
bribe could be the subject of criminal charge,

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but the appointment or the pardon that
might be given in exchange for the

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bribe couldn't be challenged. That's an
exercise of president's prerogative as president. Doesn't

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matter why the president is deciding to
pardon somebody or appoint somebody, etc.

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Sort Of there is an example of
an interesting distinction. But so I think

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that the court may try to distinguish
between certain core functions of the president and

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others. And of course, here
Michael Drieban argued that none of the activities

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charged in the indictment. He suggested
were core functions of the president. For

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example, he said that presidents don't
have any role in how a state counts

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votes in a presidential election. Presidents
don't have a formal role in how Congress

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conducts its business in counting electoral votes, for example. Presidents do obviously have

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a role in supervising the attorney general
and the other subordinate officers in the Justice

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Department, or the vice president.
So there may be certain things there that,

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even under this argument, might be
considered core. But the question would

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be whether the court, for example, will require that if it is addressing

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some core function of the president,
the statute at a minimum, the criminal

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statute needs to be very clear that
it is intended to apply to the president

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before a court will interpret it to
apply to the president. So you may

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get layers of arguments like that at
the threshold before you get to an immunity

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question. But then squarely addressing immunity, it did seem that a number of

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the members of the Court are going
to be considering the possibility of some kind

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of hybrid or qualified immunity. Just
as Alito brought this up, express he

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raised the idea, well, what
about protections that apply to any conduct of

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a president while in office that plausibly
involve official actions of the president and his

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official responsibilities or authorities as president,
and so a sort of a generous envelope

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of protection, the outer reaches of
which would be is there a plausible argument

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that this is an exercise of the
president's constitutional authority. Certainly there are members

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of the Court, the liberal justices
Justice Kagan, sod Mayor, and Jackson,

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who seemed very clearly opposed to any
idea of that kind of immunity,

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and they also pushed back on the
notion that the case was really properly before

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the court and that the Court needed
to go through all of these issues.

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We'll see how they end up in
terms of where they might fall on this

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spectrum of different layers to the argument. I really think even they might agree

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on some kind of protection for the
core functions of a president, some kind

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of inquiry as to whether functions at
issue are official acts of the president or

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personal acts of a candidate for office. And even the President Trump's lawyer agreed

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that certain of the charges in the
indictment involved the personal actions of President Trump

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is a candidate for office. So
even under President Trump's own attorney's view of

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the case. There are certain aspects
of the indictment that could still go forward,

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at least potentially, but all of
that would require a careful reassessment by

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probably by Judge Chuckkin in the first
instance, and probably would go back to

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the district court for that kind of
line drawing and consideration. So a lot

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of complicated issues. I think you'll
see a lot of commentators are kind of

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surprised that the court first of all
took the case, and second of all,

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that gave so much that President Trump's
arguments got so much traction. So

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I think you have to say,
at the end of the day, it

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was a very good day for President
Trump in the Supreme Court because it's definitely

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not a frivolous claim, not a
frivolous argument on his part. The Court

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gave it serious consideration. A number
of justices are clearly concerned about the potential

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impact negative impact on future presidents.
And there really seems to be some scope

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of or at least some serious interest
in identifying some scope which you might call

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qualified immunity or immunity of some form
for former presidents. So that's a huge

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deal. This could be a historic
decision from the court. Certainly, the

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issues being addressed are about as important
as they can be under our constitutional structure,

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and so I just I just have
to think that, you know,

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for that reason, I would say
President Trump had a good day in the

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court. His lawyer John Sower did
a really good job addressing all these issues.

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I think it was it was something
of an exciting argument. It was

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a rich argument in terms of all
the issues that were addressed. I believe

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in both sides, both lawyers on
both sides presented really strong arguments from their

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perspectives. I think the court probably
felt it got everything it needed out of

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the oral argument, and I don't
think you could say that for a lot

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of cases really at the end of
the day. And so it'll be very

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interesting that obviously the opinion this is
going to be a contentious one, and

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I doubt it will. It will
probably come down the very last week of

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the term, probably in late June. But you have to say, right

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now, the tea leaves are looking
better for President Trump than I think a

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lot of commentators thought they would going
into this in January. Well, Steven,

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thank you so much for joining us. We will definitely be looking forward

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to what happens at the end of
June and and kind of the fallout of

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this case. Thank you so much
for joining us. Oh my pleasure.

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Thank you, Kyle, take care. Thank you for listening to this episode

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of SCO Discast. Scot Discust is
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essential to our constitution, and that it

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