Are Presidents Prison-Proof?

This episode explores the legal boundaries of presidential immunity, particularly focusing on whether a president can be held criminally responsible for actions taken while in office.

1. The Supreme Court is considering whether actions taken by a president during their term can be deemed entirely immune from criminal prosecution.
2. The case has significant implications for Donald Trump, who faces multiple legal challenges related to his presidency.
3. Legal arguments focus on the distinction between a president's official acts and actions that could lead to criminal charges.
4. The outcome of this case could redefine the scope of presidential powers and their limits.
5. Justices are seeking a balanced approach that protects the president's necessary functions while ensuring accountability.

1: Introduction

The episode begins with an overview of the controversial topic of presidential immunity. Brad Milker: "President is more than a title. It might be a get out of jail free card."

2: The Supreme Court's Deliberation

Discussion on the Supreme Court's handling of the case, highlighting the gravity and historical significance. Terry Moran: "This case has huge implications for the presidency, for the future of the presidency."

3: Legal Perspectives

Insights into the legal arguments presented, emphasizing the complex balance between immunity and accountability. Terry Moran: "No president has ever come to the court and said what Donald Trump had."

4: Broader Implications

Exploration of the broader implications of the decision, with potential impacts on future presidencies. Brad Milker: "It's also just unclear, like, is every official act now legal just because it was classified an official act?"

1. Stay informed about the legal processes that shape our governance.
2. Engage in discussions about the balance between governmental power and accountability.
3. Consider the implications of legal precedents on future political and legal landscapes.
4. Educate others about the significance of such landmark cases.
5. Reflect on the role of the judiciary in maintaining checks and balances within the government.

The Supreme Court appears to consider a precedent in which some presidential actions would be impossible to prosecute. Harvey Weinstein’s landmark conviction in New York is overturned. And Venice institutes the world’s first fee for simply visiting a city as a tourist for the day.

People

Donald Trump, Terry Moran, Brad Milker

Companies

ABC News

Books

None

Guest Name(s):

None

Content Warnings:

None

Brad Milker

It's Friday, April 26. President is more than a title. It might be a get out of jail free card. We start here.

The Supreme Court wrestles with a question they've never had to answer. Are there certain things for which a president can never be prosecuted? Whatever we decide is going to apply to all future presidents. What a potential ruling could mean for Trump and his many trials. It was the conviction that shocked the entertainment world.

Now it's been thrown out, bringing up. Things that Harvey Weinstein was accused of that he wasn't actually charged with. Why Harvey Weinstein is no longer a convicted felon in New York. And, yes, we can. Now, would paying a fee have stopped you from coming to Venice?

Maggie Ruley

Not at all. Not at all. A first of its kind law in Venice will charge tourists just for standing there. From ABC News, this is start here. I'm Brad Milker.

Brad Milker

Former President Donald Trump spent his Thursday in New York City sitting in court as a jury hears evidence against him for allegedly falsifying business records. But where he really wanted to be yesterday was in Washington because the Supreme Court was considering a landmark case involving the former president. This is the federal case revolving around January 6 and what prosecutors say were Trumps attempts to subvert the 2020 election. And while all these cases are important, all the cases carry potentially enormous consequences. That's why Trump had to stay in New York.

This one stands alone because it really has to do with democracy itself. And the specific question the Supreme Court was addressing here was, can someone be held criminally responsible for what they do while they are president? When you're in office, can your decisions conceivably land you in prison? Because if the answer is no, there might not be a case against him here. So special counsel Jack Smith needs an answer before any of this goes further.

Let's start the day with ABC senior national correspondent Terry Moran, who covers the court. Terry, this seemed like a really big deal. Cause we're effectively talking about what, whether a us president is in any way above the law. That is sure what it sounds like. And many of the liberal justices said that's exactly what this claim was, and it is an extraordinary claim.

Terry Moran

No president has ever come to the court and said what Donald Trump had. His lawyers say that Trump is absolutely immune from criminal prosecution, can never be prosecuted for anything he did while president. That was within the far outer boundaries of his official duties. The framers of our constitution viewed an energetic executive as essential to securing liberty. And of course, when it comes to his attempts to overturn the 2020 election, he says those were official acts.

He was, he was trying to ensure election integrity, and so he cannot be prosecuted for anything he did well, attempting. To defend the integrity of the election. I mean, that's the defense. The allegation is that he was attempting to overthrow an election, essentially. Exactly right.

And neither allegation of what the purpose is should make a determination, should make a difference as to whether it's immune. It was a breathtaking claim, and you could hear the justices kind of try to deal with the weight of it. This case has huge implications for the presidency, for the future of the presidency, for the future of the country, in my view. I mean, even some of the conservatives, Justice Kavanaugh at one point talking about how it has huge implications for the presidency. Justice Alito saying, you know, that what we're going to do is going to apply to all future presidents.

What is before us, of course, does involve this particular case, which is immensely important, but whatever we decide is going to apply to all future presidents. The gravity of the constitutional moment hung in that courtroom. It was quite dramatic. And I remember back in the January 6 congressional hearings, the position from some of Trump's lawyers there was essentially, you know, he's not the president anymore, you guys. So this whole issue should only be addressed by the criminal justice system.

Brad Milker

Now here they are saying, actually, there are things that the criminal justice system should not be able to touch. I mean, what does this case end up sort of boiling down to? Well, it does boil down to that line. There is a sense that presidents are different under the law because the entire executive branch rests in that one person. The executive power shall be vested in a president of the United States, is what the constitution says.

Terry Moran

And so presidents already have absolute immunity from any civil lawsuit. You can't sue the president for anything the president does officially. That's because basically, presidents are signing laws and doing things all the time that affect everyone, so they can't have everyone suing them for something that goes wrong. Criminal liability, that's something different. Without presidential immunity from criminal prosecution, there can be no presidency as we know it.

And there was this argument from Trumps lawyer, John Sauer, who fought his corner very fiercely, that presidents naturally need some kind of protection from prosecution for things that they do that are right on the line. And he mentioned things like President Barack Obamas decision to order the killing of an american citizen, Anwar al Alaki in Yemen, who was working with al Qaeda. Obama based that on the law that gave him authority to use military force after 911. It was old by then. Time.

But could he be prosecuted for murder that was raised in the courtroom also, the way George W. Bush misinformed the Congress and the country about the nature of the threat from Iraq, could he be prosecuted for some kind of fraud? And so these are issues that the presidents will decide. Presidents have to make a lot of tough decisions about enforcing law, and they have to make decisions about questions that are unsettled. Many of the justices said they get it.

They get that presidents have to make decisions fully, swiftly, and efficiently in the best interests of the country. And if theyre always looking over their shoulder, is there going to be some partisan prosecutor coming after me? That will not be good for the country. And you could hear that justices wrestling with that. This court has never recognized absolute criminal immunity for any public official.

And from the prosecutors said from the government's side, special counsel Jack Smith. Michael Dreeben, his lawyer, was in there saying, this is crazy. Basically, he said, the law has never recognized absolute immunity for presidents. His novel theory would immunize former presidents for criminal liability, for bribery, treason, sedition, murder, and here conspiring to use fraud to overturn the results of an election and perpetuate himself in power. And that idea really hit the liberal justices hard.

They were having none of it. Sonia Sotomayor, some of the other justices were raising a parade of horribles of things that presidents could do that must be, as Sotomayor put it, protected against an assassination, a coup, that kind of thing. If the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him, is that within his official acts for which he can get immunity? It would depend on the hypothetical, but we can see that could well be an official act. It could.

Prosecutors pointed out that President Ford pardoned President Nixon. So clearly, both of those guys thought that presidents could be indicted, that Warren Harding was facing a possible indictment, and nobody was before he conveniently died, or I guess, inconveniently for him because of a scandal in his administration, no one was standing up saying, you can't indict Warren Harding. It was unheard of. Such presidential immunity has no foundation in the constitution. The framers knew too well the dangers of a king who could do no wrong.

He said, presidents have always been known to be subject, if they have real wrongdoing, to criminal prosecution. So where do the justices seem to land then? As you're hearing, like you said, you're almost hearing them thinking out loud. You were, it was fascinating, Brad, you were hearing them think out loud. They are looking clearly for a middle line here.

They are looking for a way to draw a line between the president's purely private acts, which can be the basis for prosecution, and those official acts, which, as many of them acknowledge, need to be shielded simply for the good of the country, from prosecution. Private attorney was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results, private as at large. I mean, we dispute the allegation, but that sounds private to me. Sounds private. And it was Amy Coney Barrett, sort of, who led the way there.

She said that what could be done is they could write the general principle, here's what constitutes an official act. Here's what constitutes a private act, and send this case back down to the trial court to sort it out with the facts in front of the court there. That would mean a delay in this case. It's going to be hard to write that opinion for the Supreme Court. There will be dissents.

It'll take weeks before there's a ruling here, and then they'll set it down for further proceedings. And it is highly unlikely that there would be a trial before the election. Which what a delay that delays the trial past the election. That sounds like it's a decent outcome for Donald Trump at this point. Well, one of his major legal strategies in all these cases is delay, delay, delay.

This, however, is a delay, but this is really a delay that the justices, I think, feel they need. Sometimes you can feel the conservatives leaning hard into a conservative outcome. Sometimes the liberals, too, in their direction. This was one of the justices generally and genuinely felt that they were wrestling with a huge issue that will have an impact for, you know, long after this particular case, and they want to get it right. And that's going to take time, huge.

Brad Milker

Ramifications, not only because it's sometimes unclear, like, what is privately benefiting the president and what is, like, part of his job duties. It's also just unclear, like, is every official act now legal just because it was classified an official act? I guess we will have our answer, or at least a delay that someday gives us an answer by late June is what we might be expecting. Terry Moran, thank you so much. Thanks, Brad.

Next up on start here. If Harvey Weinstein hadn't been convicted in multiple cases, he might have been released from prison yesterday. The surprise decision after the break.

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Brad Milker

Now, there are a lot of court cases making headlines right now, but the one no one was expecting to talk about this week was the case of Harvey Weinstein. Remember, the disgraced movie producer has been convicted of rape and sexual assault in two different states, New York, then California. And he was expected to spend the rest of his life in a prison cell. Well, then yesterday morning we learned that the New York state Supreme Court has thrown out those New York rape charges, saying the trial was unfair from the start. ABC senior investigative correspondent Aaron Katersky is with us.

He covered this whole trial. Aaron, what happened here? It was, what, five years ago when Harvey Weinstein was convicted of sex crimes based on the allegations of three women who said that he effectively normalized the casting couch. He was a well known, powerful man within the entertainment industry. Prosecutors said he abused that power, took advantage of aspiring actors to coerce them into these unwanted sexual encounters.

Aaron Katersky

And there were always going to be questions that the defense raised about the appropriateness of bringing up things that Harvey Weinstein was accused of that he wasn't actually charged with. And that's where, according to the court of Appeals, this case went astray. Now, was it a surprise? His defense attorneys expressed surprise. We did not expect the decision to come out today.

So we were in shock that the decision, first of all came out and then relieved by what the decision was. They didn't think that this was necessarily going to be the outcome, although after it occurred, they ended up praising it as a win for the rule of law. Why? I mean, what was the rationale from the state supreme Court? It was a guilty verdict, the decision said, based on supposition rather than proof.

Aaron Katersky

Now, look, that may not be entirely true, and it was a close decision for three, but really, what the, the opinion focused on was what's known in New York as Molyneux witnesses and what in other jurisdictions are often called prior bad act witnesses. These are claims that are made against a defendant that don't form the basis of the underlying charges, but that prosecutors try to introduce in order to show some kind of pattern of behavior. And here the Court of Appeals said that just wasn't proper in this particular case. You're calling witnesses to show he's a certain type of guy when the actions involved might not be proven crimes anyway. The prosecutors introduced evidence that was not part of the underlying criminal case against Harvey Weinstein.

They thought they could do it. The judge had allowed it. But the New York Court of Appeals, the state's highest court, said that ended up being an egregious error because it eviscerated what the majority opinion called the time tested rule against propensity evidence, meaning the jury, in the majority's view, found Harvey Weinstein guilty because he had a propensity to commit the crimes charged, not because he was actually guilty of them. What happens next for Weinstein himself? Harvey Weinstein has been in prison in New York.

He's also convicted in California. So what happens next is a little uncertain. The Manhattan district attorney's office said it wants to retry Harvey Weinstein, and in that case, he would be transferred into a different kind of custody. He'd have to go through an arraignment all over again, and they would have to ask to hold him without bond so he could remain in New York custody or he could be transferred to serve his sentence in California. Hey, Aaron, just more broadly, I'm thinking of Bill Cosby's conviction that was overturned.

Brad Milker

That was a slightly more complicated case. But again, it had to do with sort of what kind of information you're allowed to use in court. Are prosecutors showing that maybe they're so aggressive in responding to these cases years after the fact, where, like, there's so much public outrage and there's so many people being like, why wasn't anything done at the time, that they're then getting so aggressive with these cases that they're almost less equipped to get convictions that actually hold up on appeal. In fact, Brad, that's exactly the argument that the defense was making. You can't throw out 100 years of legal precedent because someone is unpopular.

Aaron Katersky

You can only convict based on the charged conduct, and that's where the opinion seems to rest. But there is now a move, at least in New York, to join several other states that want to be more permissible when it comes to sex crimes and allow prosecutors to show this kind of pattern of past conduct, even if it doesn't constitute the underlying crimes that the defendant is charged with. We are devastated for the survivors who are connected to this case and the survivors who had found some solace, some solace and catharsis in the original verdict around Harvey Weinstein. Remember, Brett, tales about Harvey Weinstein sparked the hash metoo movement, and scores of women had come forward to accuse Weinstein of sexual misconduct or even worse. And many of those women reacted to the decision by the New York Court of Appeals and saw it as a setback.

Brad Milker

That's interesting because patterns of behavior like can often straddle the line between criminal and not criminal. And here, though, that has gotten Harvey Weinstein, this case, for now, tossed out of court. Big decision here. Aaron Kaitursky, thanks for breaking it down. Thank you, Brad.

Okay, one more quick break. When we come back, forget the restaurants. You need a reservation just to get into town. One last thing is next.

The first ever criminal trial of a former president is underway in Manhattan. It's one of potentially four trials facing former President Trump as he makes his third bid for the White House. What do voters think about his culpability? And would a guilty verdict make a difference in the election? Im Galen Druck, and every Monday and Thursday on the FiveThirtyEight politics podcast, we break down the latest news from the campaign trail.

We sort through the noise and zoom in on what really matters using data and research as we go. Thats fivethirtyeight politics every Monday and Thursday, wherever you get your podcasts.

Brad Milker

And one last thing, Venice, Italy. Venezia, the queen of the Adriatic. A place where the canals weave through the city like streets. Tourists paid dearly to glide through these ancient waterways. But should they be paying to stand on the sidewalk as well?

Maggie, where are you? Right, I'm always so jealous of where you are. Shockingly, I'm here on a news assignment, Brad. I kid you not. This is ABC's foreign correspondent Maggie Ruley, who went to Venice on the same day they instituted a new policy.

Maggie Ruley

Venice has just become the first and only city in the entire world to start charging day trippers to enter its. City limits between the hours of eight and four. They're now charging outsiders a fee to enter the historic city center. To enter Venice right now, it's gonna set you back €5. This applies to foreign tourists, but also Italians who live outside the metropolitan area.

Brad Milker

If you wanna go into Venice, you will have to go online and register with the city where you'll receive a special QR code for the day you enter the city. And there are inspectors set up that are checking QR codes. And if they check for yours and you don't have it, then you get hit with, actually a pretty hefty fine. It's up to €300. So how did it get to this point where you gotta pay to walk around?

Maggie says it all makes sense when you start looking at how the population swells throughout the day. Imagine, you know, trying to walk into a place like St. Mark's Square, the iconic St. Mark's Square of Venice, and you're just packed with thousands of people, everyone trying to take selfies, huge tour groups. Would paying a fee have stopped you from coming to Venice?

No, not at all. No, not at all. And many are saying that it takes away from the charm and the uniqueness. Of Venice, to which you might say, so what? These tourists are the reason so many locals have jobs.

Brad Milker

They stay in your hotels, they eat at your restaurants. Maggie says, actually, not as many of them as you think. I spoke with Simoni Venturini. He's the Venice city councilor for tourism. Venice is very small.

It's a very small city. They said, you know, day trippers are often people that they come in huge groups and they don't spend a lot of money in the local economy. They come in and then they leave. Venice will be here always and they will choose another day versus people who. Stay overnight at a hotel are paying the locals.

Maggie Ruley

They're then going out to dinner. We don't want to discourage Americans because we love american, and the majority of american sleeps in Venice. So the most common thing to happen is a cruise ship comes in, they dock a few towns away, they enter town just to take a few hundred photos to show their family, and they get back on their boat. No time for lunch. They can eat the buffet on board.

Brad Milker

Or there are also Italians who pack their lunches, drive in, see the sites and just leave their trash behind. This, the city council said, is why its going to be a five dollar entry fee. Not enough to convince someone not to travel there. It doesnt even apply to someone staying at a local hotel, but perhaps enough to make a day tripper think about their plans and give local officials a sense of how many visitors are coming. In today, maybe using also dynamic pricing principles.

So the more the reservation, the higher the tax. Maggie says this is actually just a test run, a pilot program that will end later this year. It's just a chance to see if it helps anything at all. But for locals, the stakes are high. The first problem now is the price for bede apartment.

Brad Milker

It's too much expensive. Locals are getting priced out, and in fact, the number of locals living there have dropped dramatically, 100,000 just a couple of decades ago is now down to about under 50,000 locals today. But I even spoke to a gondolier. Do you think that over tourism is a problem in Venice? We have too much tourists.

Yes. And he said he loves tourists. You know, his job depends on them. But the way that the city is overrun by tourists right now just isn't sustainable. Maximum 20 years, all the venetian people live outside, and Venice become like to the Disneyland.

This gondolier says, we have lots of Airbnbs for tourists, but the venetian people have nowhere to live. And I was struck hearing this because you might remember last year we did a whole special on home rentals in New Orleans with service workers saying they can't even afford to live in the city they serve. Now you're hearing the same sentiment in a world heritage site on the other side of the planet. Meanwhile, the Venice city council says they're getting calls from leaders of other tourist hotspots asking to keep them updated. So much so you might see this kind of tourist congestion pricing in other cities, too.

We have a lot of discussion with Amsterdam, with Barcelona, even in Belgium. Even Kyoto in Japan is experiencing something related to over tourism. Lots of Italians don't like this. Some even came to Venice to protest yesterday. After all, who wants to be told you can't enter a city in your own country?

Brad Milker

But if it is smooth sailing along these canals, you could see more programs like this, and they might not stop at €5.

I want to know, can we start charging people if they come back from Italy and all of a sudden start pronouncing stuff like they're Giada de Laurenti? Okay, maybe I'll whip up some spaghetti or maybe some macaroni. Like, cool it, Marco Polo. I know you've been exploring, but sheesh. Start here is produced by Kelly Torres, Jen Newman, Brenda Salinas Baker, Vika Aronson, Cameron.

Chertavian, Anthony Ali, Maruma Walkie, and Amira Williams. Ariel Chester is our social media producer. Josh Cohan is director of podcast programming. I'm our managing editor, Laura Mayers our executive producer. Thanks to Lakia Brown, John Newman, Tara Gimble, and Liz Alessi.

Special thanks this week to Chris Berry, Ayesha Ali, Chris Donato, Jennifer Metz, Daniel Manzo, Stephanie Ebbs, Tanya Simpson, and Cindy Galley. I'm Brad Milke. See you next.