Is Trump above the law? The Supreme Court weighs in.

This episode explores whether former President Donald Trump can claim immunity from criminal prosecution for actions taken while in office, specifically regarding the January 6 case.

1. The Supreme Court is considering extending civil immunity to criminal acts for presidents, a precedent not previously set.
2. Trump’s legal strategy is largely seen as a delay tactic to push any potential trial past the election.
3. Legal experts argue that presidential immunity should not shield criminal acts.
4. The episode highlights the complexity of differentiating between official and unofficial presidential acts.
5. The outcome of this case could significantly affect future presidential conduct and legal accountability.

1. Introduction to the Topic

Host Charles Lane sets the stage for a discussion on Trump’s immunity claim regarding acts during his presidency.
Charles Lane: "This is impromptu from Washington Post opinions."

2. Legal Background and Current Case

Explanation of the legal arguments surrounding presidential immunity and the specifics of the January 6 case.
Ruth Marcus: "This is the case that charges him with interfering or attempting to subvert the election."

3. Implications of Presidential Immunity

Discussion on how presidential immunity affects legal and democratic norms.
Jason Willock: "I am concerned about federal prosecutors going crazy."

4. Potential Outcomes and Consequences

Experts debate the potential rulings and their implications for the U.S. legal system and presidential accountability.
Ruth Marcus: "Their goal has always been to delay it until after the election."

1. Stay informed on legal discussions and rulings that impact presidential powers.
2. Engage in civic discussions to understand the balance of power in the U.S. government.
3. Advocate for clear legal standards for presidential conduct to prevent abuses of power.
4. Support legal reforms that ensure all government officials are held accountable.
5. Encourage transparency and accountability in political processes to uphold democratic values.

The Supreme Court is set to decide to what extent former President Trump could be immune from prosecution for his efforts to overturn the 2020 election on Jan. 6, 2021, as his lawyers have claimed. Post Opinions columnists Charles Lane, Ruth Marcus and Jason Willick discuss the strategy and timing of these arguments and what we might expect the justices to decide in this showdown about the future boundaries of presidential authority.

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Donald Trump, Charles Lane, Ruth Marcus, Jason Willock

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The Washington Post

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Charles Lane

Did either of you do anything in the last week that you wish you could have complete immunity for? It can be either an unofficial or official act. Absolute Marcus immunity. I haven't even begun to think of the possibilities there. I want a specific answer.

Ruth Marcus

Okay. All right, I'm gonna confess here. I added some baking powder to my passover cake because there is kosher for Passover baking powder. And it's a wonderful orange almond cake. And so I would like absolute immunity from God for that, Jason.

I would like immunity from the parking meters in Washington, DC. We all need that. I took more than my share of candy out of the jar at the office. And that's bad in two ways. Cause it adds to my gut and, you know, leaves less for everybody else.

Ruth Marcus

The government of the Washington Post could hardly go on if you didn't have that immunity. But it's an unofficial act. I mean, stealing candy is unofficial. No, it's within the outer perimeters of your official acts. That is a joke.

For really hardcore readers of Supreme Court briefs.

Charles Lane

This is impromptu from Washington Post opinions. It's a brand new show where we take you into the conversations behind the columns. We have a lot of opinions around here, but each week we'll bring you just the right people to meet the news of the moment. I'm Charles Lane, deputy opinion editor. And today we're talking about an upcoming hearing at the Supreme Court.

On the big question, is President Trump immune from criminal prosecution for official acts he committed while in office or might have committed? His lawyers are going to go toe to toe with federal prosecutors on Thursday, April 25 in front of the justices. I'm here with two of my colleagues who have really thought and written quite a lot about this case. Will you two introduce yourselves? I'm Ruth Marcus.

Ruth Marcus

I am an opinions columnist and associate editor. And I have been looking forward to this moment at the Supreme Court since approximately last August when the issue first arose and I started writing about it. I'm Jason Willock. I'm a more junior columnist at the Washington Post. There is no such thing.

I'm surprised that as the Supreme Court is having to resolve this during an election season at all. There are so many cases, civil and criminal, against Trump right now, and it is hard for our audience sometimes to keep track. Tell us sort of which case is at issue this week. The January 6 case, the case involving Trump's efforts to overturn the 2020 election. That's the case that's at issue this week.

And to me, it's by far the most interesting of the cases. So it's not just the most interesting of the cases, though. It is that it is also the case that goes most directly to the question of whether Trump is fit to retake the office of president. It is the case that charges him with interfering or attempting to subvert the election through a variety of mechanisms to prevent Bidens election from being certified. This is the case, the January 6 case, that just goes to the essence of, from my point of view, Trumps threats to democracy.

Charles Lane

And so, but the specific question is whether or not he can be prosecuted for this at all because there was an official act involved and that his lawyers theory is that theres a kind of implied immunity that the president enjoys from prosecution for that. So, you know, tell us how that becomes relevant to the future of his case. Jason. Yeah, well, just background. The Supreme Court said in a five to four decision in 1982 that Richard Nixon and all presidents were immune from civil damages suits or, you know, having to pay money to somebody they harmed through an official act.

And so the Trump argument is basically trying to extend this principle to criminal law. And that's never been litigated because, as we all know, no president has been charged with a crime for an official act he took in office. Now, that is Trump's defense that has gotten to the Supreme Court because immunity, you can appeal it before your trial. I've got to say, I'm surprised that it made it this far. I thought the Supreme Court would want to duck it because they didn't, didn't want any more Trump law before them during the election.

Charles Lane

Ruth, you have called Trump's immunity claim, quote, simultaneously bogus and important, which is a nice turn of phrase. But tell us more about what you meant. Okay, so I would like to say Nixon completely understood that presidents could, in fact, be prosecuted for their official acts during their time in office. And the reason that we know that he understood that was that he accepted a pardon from one Gerald Ford, which connotes an acceptance of guilt. Nobody before Donald Trump came up with this, and the word I used was bogus.

Ruth Marcus

That was a good word came up, had ever imagined this bogus argument, which brings us back to Nixon v. Fitzgerald. And the court said narrowly that civil cases against presidents are different because you don't want them basically pecked at by a thousand different crazy litigants in a thousand different courts, and that will distract them in or out of office and will make them think twice about things. The court specifically in that case understood that and mentioned that criminal prosecutions are different because criminal prosecutions are brought by federal prosecutors who are supervised by judges and affected, limited to some extent, at least in theory, by grand juries. And they're not going to go crazy bringing criminal cases.

At least we didn't understand the possibility that they might do that until we encountered Donald Trump. And I think it's fair to suggest that the court in Nixon v. Fitzgerald did not imagine a future Donald Trump. So this case is important in order to cement what we have all assumed along, which is presidents can't be sued civilly for their official acts, but they, like other people, are not above the law for doing something that in fact, violates a criminal law. I would just throw in one little thought after listening to you, which is that one reason he was acquitted, and I know this plays a role in this case from the impeachment for January 6, was that some senators invoked the idea that he could be criminally prosecuted later on.

Charles Lane

I believe even Mitch McConnell said that. But, Jason, Mitch McConnell said that. Excuse me, I need to say this. Not just Mitch McConnell, but Donald Trump's own lawyers deployed that as an argument if he can be held criminally responsible. So it would be terrible to now.

To impeach him before he has new lawyers now. Ruth. Go ahead, Jason. I mean, I basically agree with Ruth. I don't like creating new immunity.

I am concerned about federal prosecutors going crazy. But my preferred judicial remedy for this is to interpret statutes, criminal statutes, very narrowly for everybody, not creating an immunity for the president. I think some people are under the impression that if the Supreme Court says there is official acts immunity, that means that Trump gets off. It absolutely does not mean that. It would mean that District Judge Chutkin would have to make a determination of which acts in the indictment were official acts.

And my guess is that most of them weren't. I mean, there's another civil case where the DC Court of Appeals basically said, you've got to disentangle the official acts from the unofficial acts. You have to look at Trump's January 6 speech. Was it a campaign speech? Was it a White House speech?

And so it's incredibly complicated inquiry, but I have little doubt that even a ruling in Trump's favor on that narrow question would not end the prosecution. It would just delay it. Ruth. Well, I think that, you know that thing where Groucho Marx had a show and the duck came down when he said the magic word. Secret word.

Ruth Marcus

Secret word. Well, Jason just said the secret word. The secret not so secret word is delay. And that is what this has been about. Yeah, I was looking for a doc.

Charles Lane

In the studio, but it didn't. Can we put in a boinging sound? By the way, you also won $50 if you said the secret word. Yeah, 50 whole dollars. Wow.

The show was called you bet your life. But we digress. Continue it. Well, I'm going to bet Trump's prosecution on this. Look, we have talked a lot over about the last months, about the ridiculousness of some of the lawyering surrounding Donald Trump.

Ruth Marcus

This is not a case of bad lawyering surrounding Donald Trump. This is a situation of some really pretty smart and strategic lawyering surrounding Donald Trump. And their goal has never been to win this case. Spoiler alert, they are not going to win this case at the Supreme Court. Their goal has always been, from the moment they suggested they were going to file this motion back in last August, their goal has always been to do one thing, which is to delay it until after the election in the hopes that Trump will be elected president and he can make all of this and more just go away.

So that just has put a hold on a case that was supposed to go to trial. Let us all recall on March 4, quite a long time ago, we could be, you know, given jury instructions by now. So Trump's smart and capable lawyers have with, I would say, if not connivance assistance of the Supreme Court, managed to get this to the court and the court took it, which did not surprise me or really concern me because it's an important question. It's an important case fine for the court to move in and have it be heard. But number one, the court should have taken it back in December when the special counsel asked them to leapfrog the appeals court because we knew this was coming to the Supreme Court.

Number two, when the court eventually took it after the appeals court ruled against Trump, they shouldn't have been waiting seven weeks in order to hear the case. And number three, we're going to have to wait and see two other things. How long it takes them to render a decision in this case probably won't be till the end of June. And finally, whether the way they issue their decision simply rules against Trump or says no, you need to go back and fly spec these questions. Is this official?

Is this not official? All of that runs the risk of doing what exactly what Trump wants, which is delaying this until after the election. Well, let's follow up on what Ruth just said, Jason, because whether this was artful lawyering or delay or whatever, whatever the court ends up deciding is gonna matter, not just for this, but for future presidents and for the shape of the law going forward. Well, I just. Ruth thinks there's a rush for the court to decide it before the election.

I just wanna register. I'm not into it. I mean, this is a separate question. The timing thing is a separate question from the immunity case. But I just wanna register that I think it's fine that the court is not rushing or leapfrogging because of the election.

And I think if Trump people did smart lawyering, Jack Smith did stupid lawyering by ensnaring himself on this immunity issue that he says in his own brief, in immunity, there's plenty of evidence to sustain this indictment based on unofficial acts. So he got himself in this situation, as far as I'm concerned. You've written that there are two nightmare scenarios you can imagine coming out of this result. One that it could, you know, a ruling that could allow a president to kind of enjoy blanket immunity and get away with literally murder, or another that would allow all kinds of petty partisan prosecutions. So how do you think they could steer between those two difficulties, if at all?

I mean, that was sort of a way to frame the parades of horribles that each side is gonna put forward. One is, do you want Biden prosecuted, Obama prosecuted as soon as he leaves office? Every president's gonna be prosecuted as soon as he leaves office. Our government will be paralyzed. That's the Trump argument.

The other argument is the president's gonna have SEAL team six murder his opponents with impunity. Neither of those things is gonna happen. What this sort of shows, I think, is that the law itself can't keep at bay these bad situations. No matter what the law is, people can make bad things happen, and it's gonna depend on, you know, they're basically being norms. A new president comes in, his Justice Department is skeptical about some other things the previous president did.

They don't generally prosecute them, but you need that kind of goodwill. I don't think any immunity ruling or any way of threading the needle is going to avert norm violations in our politics. So you two are using terms like norm violation, which is generating a high level of legal nerd energy, which I love. But we have to take a break. We'll be right back.

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Charles Lane

Welcome back. I'm Charles Lane, and this is impromptu, so the last time this case was in front of a court, there was talk about whether the president would be immune from prosecution if he ordered the assassination of a political rival. Do you think the court is going to have to entertain any more sort of scary, wild, or even funny hypotheticals this time around? Well, I think they actually are going to need to address some scary hypotheticals because some of the scary hypotheticals aren't quite as hypothetical as invoking ordering SEAL team six to assassinate your political rival. I think everybody understands that that would be bonkers, even for Donald Trump.

Ruth Marcus

But there are some serious questions about what a president could be held liable for in terms of, say, assassinating american citizens on foreign soil or doing other things that might arguably violate the law of war. And I think the justices are going to be very cognizant of not wanting to interfere with lawful presidential authority while also not wanting to unleash SEAl team six upon the nation. So the court is going to convene to hear this in a special hearing on April 25. What do you think our listeners ought to expect? What kind of fireworks and or questioning is going to go on?

Ruth, as I said, I don't think that Donald Trump is going to win this case, but I am very interested in how he is going to lose it. Because if the justices seem like they are going to hang their immunity decision on a very close parsing of official versus unofficial acts, and how are we to tell, and dont we need a remand to have this considered and that remand will go to the district court and then well go to the appeals court? We will not have a decision before the election. And I really hope that Jason and I can get into it on the timing thing because I think this is really important and I really want to. Go at it with them.

Jason, I'm going to look for. I think there will be fireworks. I think the Trump team will have to be more prepared this time for the SEAL team six question. But I'll also say a really interesting thing again, for legal nerds to watch, is I recently read Nixon v. Fitzgerald.

It is not the strongest decision ever. It certainly, I don't think, an originalist decision in the modern sense. And I think some of the people who might actually look more to Nixon versus Fitzgerald on the court are Justice Brett Kavanaugh and maybe Chief Justice John Roberts. I think justices like Clarence Thomas and Neil Gorsuch might not like the idea of finding new immunities. I mean, Clarence Thomas has not liked the idea of qualified immunity in the past for other civil officers.

So this is kind of the argument Trump's making is not exactly an originalist argument. It does have. It's more a precedent based argument. I think you're gonna see them looking for some sort of middle ground. That does not.

Cause they don't. I think they took this because they don't wanna let the DC circuit opinion, which basically says there's no immunity at all for criminal laws, they don't want that to be the last word on this going into the next presidential administration. Jason, could the president take a bribe for issuing a pardon? It's real. I think the pardon would still be valid.

Ruth Marcus

That's not what I asked. Can you prosecute a president for taking a bribe? Well, you can certainly impeach him for doing that, because bribery is listed under. Okay, but let's say the president resigns and then we. Can he be prosecuted for taking a bribe?

Charles Lane

Mister Willock, you don't seem too prepared. In this oral argument. No, I think. I mean, I think the. I'll be honest with you, I find the parsing of official acts and unofficial acts incredibly hard to understand and is one reason why I don't think it should be the basis of this.

And it would be easier to have a clean rule. But I think the official answer to that, for a proponent of immunity, would be, well, there's no power to take a bribe. Therefore it's not an official act. The better answer is there's no immunity based on official acts. If your act is a crime, you are liable to be prosecuted for that crime just like everybody else done.

Well, for example, if a president fires a director of an FBI, can he be prosecuted for obstruction? Probably not. He has the power to replace his own officers who work for him. Well, then you're just not making out the elements of obstruction. Okay, let me put another example.

He's prosecuted for conspiracy against rights. So conspiracy to take away people's rights. Could Biden be prosecuted for taking away people's free speech rights if he were to lose the social media case? I mean, there's things presidents do that affect people's rights or that influence investigations. And the better solution is to just not have a crazy political system where you try to prosecute your opponents.

Ruth Marcus

So we're talking about official acts because Trump's lawyers are making this audacious claim that as long as you're engaged in an official act, you can't be criminally prosecuted for it. The correct answer, from my point of view, is official, unofficial. That's not the question. The question is criminal, not criminal, and so we shouldn't be engaged in this parsing. But they have gotten us distracted on this question.

And the Supreme Court, in its framing of the case when it agreed to take it, express some interest in this distinction. Like, I'm saying, I'm very nervous about the concept of presidential immunity, but I think that the way the DC circuit wrote its opinion and the fact that the Supreme Court decided to hear it shows that there are real issues that they think need to be explored. And I expect them to try to do some line drawing. So what do you think? I mean, this case, the mere fact that it's been brought tells you something, and the mere fact that Trump has taken the position he's taken also tells you something.

Charles Lane

But what do they tell you about how he might govern if he gets back into office? What kind of future president makes a claim like this? Well, he has told us about how he might govern. We don't actually need to look to the briefs that his lawyers filed. He has said that he would be perfectly delighted to go after his enemies and opponents if he gets prosecutorial power back.

Ruth Marcus

This is a scary thing, as a system has a hard time guarding itself against Donald Trump, which is, I'm getting back to my hobby horse here, which is why he should be criminally prosecuted and why he should be tried before he gets the heck back in office to try to do this to us again. But worse, I've got to say, if the system has a hard time with presidents like Donald Trump, should, the idea, like, on the one hand, Jack Smith is saying nothing to worry about. Criminal prosecutions of former presidents will never happen. Federal prosecutors are very responsible, only happen in terrible situations. And on the other hand, it's like, well, look at Trump.

He's going to launch all these frivolous prosecutions so that sort of complicates, I think, his point. So what's the takeaway from this conversation, Ruth? Well, I am going to try to yank us back to the question of whether voters are entitled to get an answer. Did the former president of the United States illegally interfere with the certification of the election results the last time around? And theyre entitled to an answer about that before the next election rolls along.

Charles Lane

Jason, your bottom line. Well, I dont think theyre entitled to that. And if they were entitled to it, then the case should have been brought earlier and it shouldnt have been brought in a way that draws in incredibly complicated constitutional appellate issues during the election. So we disagree on the timing. But the bottom line, I agree with Ruth.

Ultimately, this is a sideshow. And it's about timing. Cause this prosecution, if Trump doesn't win, the election will happen. And we're setting for the future a landmark separation of powers ruling that sets the contours of presidential authority. But it's kind of, like Ruth said, maybe partly a distraction, but partly important.

Charles Lane

So we're gonna have a fierce argument before the court, but I don't think it'll be fiercer than what we just heard. Thank you both for joining me on this episode of Impromptu may it please the court. Thank you. I think you're supposed to say the case is submitted. The case is, the podcast is submitted.

This episode was produced by Hadley Robinson, edited by Damir Marusik, Chris Sullentrop, and Alison Michaels, and mixed by Emma Munger. Chris Rukan designed our art. Special thanks to Mily Mitra, Nick Saffin, Renita Jablonski and David Shipley. Find impromptu wherever you get your podcasts and if you like what you hear, follow us and give us five stars. If you're a Washington Post subscriber, you can listen ad free on Apple Podcasts when you connect your subscription.

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