Trump's "Bonkers" Immunity Claim, with Neal Katyal

Susan Glasser

I think I've mastered the 15 minutes drop by. Oh, that's Mike Allen. Like, what's your technique? She was like a pro. She was like, knew who she wanted to sing.

Evan Osnos

Oh, impressive. And did it. We thanked our hosts, you know. So you did the host. You did the host greet two or.

Susan Glasser

Three colleagues who I wanted to see, and then, poof. I did. Before the remark, I had to give. Up on one thing that I actually was interested in doing. I saw John Boehner there, who has not been seen in quite a long time, and there he was standing with.

Evan Osnos

A, of course, glass merlot. He was very, very tan. Oh, my. He has approached a level, I think he was perhaps eclipse tan. Go on.

Susan Glasser

Anyway, yeah, the Washington dropped by. That's an interesting set of techniques, as a matter of fact. So you using. I like that approach of the early, purposeful, get in contact exit. This is, we're talking about this, of course, because it is Washington's big party weekend this week.

Jane Mayer

It's not just the White House correspondents dinner, literally, the proliferation. It's like the party industrial complex. Absolutely.

Evan Osnos

Welcome to the political scene, a weekly discussion about the big questions in american politics. I'm Evan Osnos, and I'm joined, as ever, by my colleagues Susan Glasser and Jane Mayer. Good morning to you both. Great to be with you. Hi, Evan.

The Trump legal saga continued this week. On Thursday, the Supreme Court heard oral arguments in the matter that is aptly titled Trump versus United States. Mister Sauer, Mister chief justice, and may it please the court, without presidential immunity from criminal prosecution, there can be no presidency as we know it. The hearing centered on whether the former president can be prosecuted for his efforts to overturn the 2020 election. More to the point, the court's decision in that case will almost certainly determine whether this trial, this important trial, can start before the presidential election, or whether, if Trump wins, he would have the ability to scotch it all together.

Trump, as you know, by this point, has claimed absolute immunity from prosecution for any crimes committed in office. That is the question. Could he be subject to personal vulnerability, sent to prison for making a bad decision after he leaves office? But other people who have consequential jobs and who are required to follow the law make those determinations against the backdrop of that same kind of risk. So what is it about the president?

And that's just the latest in a series of efforts by Trump and his lawyers to push the boundaries of presidential power and privilege and really to test the boundaries of american democracy itself. So we wanted to know, how did we get to the point of a president claiming absolute immunity, and can the courts save us from what seems to be his, to be a king like figure, a King Trump. We'll do our best to answer these questions, and we'll bring on a special guest, Neal Katyal, to help us break down Trump's case before the Supreme Court. Susan, there are a lot of cases right now against Trump winding their way through the justice system. What do we know about this case in particular, the immunity issue and how it ended up before the court?

Jane Mayer

Yeah, you know, Evan, this is in many ways the big one. Not only because Donald Trump and his lawyer yesterday and nearly 2 hours and 40 minutes before the Supreme Court are actually essentially arguing that a president is a king unfettered by any real constraints, meaningful constraints on his actions in office, but because this goes to right to the heart of Donald Trumps attacks on our system, because this immunity case is his bid to block the federal case against him that stems from his efforts to overturn the 2020 election in many ways. Again, this the big story. And I think what we learned yesterday is not so much that we have nine justices who are prepared to say that an american president can do anything he wants while in office, but possibly much more concerning in the short term is that while they may not agree with Donald Trump that he could be a king, they do seem to be inclined to add more time to the clock. And, you know, any more time on this case, if they send it back to the lower court, as they seem inclined to do, that, in effect, is handing Donald Trump a victory.

It very likely means it's not for sure yet, but it very likely means that we're not going to see a trial in this most important federal case against Donald Trump before the 2024 election. And, you know, to me, it was just jarring to hear the gap in this argument between the urgent reality, the sort of five alarm fire that Donald Trump is presenting to the legal system, and a large number, if not a majority of justices who are basically saying, yeah, we don't want to talk about that. Let's just talk about some hypothetical future cases. So it was really just a jarring example of our 2024 reality. Yeah, it seemed to be pulled out of the political calendar entirely.

Susan Glasser

Yeah, actually, I think they were. Probably at least several of the conservative justices are quite aware of the political calendar and the stakes here and that they achieved what they wanted, which was a delay. This isn't actually what I'm saying. No, but I'm saying it's not that they're ignoring what's going on. This is their strategy.

And it has been, if you go back for months, their strategy, because basically we've already established the threshold of whether a president, this president can face charges for these acts having to do with January 6. We heard no lesser Republican than Mitch McConnell, McConnell say so when he failed to deliver a conviction for him in the impeachment. He said, Donald Trump can always go on to be face the courts. Okay? You've got a leader of the Republican Party in the Senate saying he can face charges.

Okay. Nonetheless, this thing has been slow walked from the beginning by this court. You had Jack Smith, the special prosecutor, asking early on whether the court could take it up earlier some of these procedural issues. You had an appeals court decision that was widely lauded for its thoughtfulness. The court didn't have to weigh into this at all.

So, I mean, I think they, you have to take, you have to look at this not as an accident, but as the objective. But I don't know. We have a much, we have a. Much, much more thoughtful, more expert, incredible Supreme Court advocate joining. Neil, Katrina has joined the party.

Evan Osnos

Neil, welcome to the political scene. Thanks for coming on. Thanks. Great to be with you. As an attorney, Neal has argued before the Supreme Court more than 50 times, was the acting solicitor general during the Obama administration.

So given how much you've looked at the Supreme Court, how deeply you know this place, how do you think they are handling the immunity claim that Trump's lawyer is making? What stood out to you in what you watched yesterday? Well, you know, I've probably seen about 400 oral arguments at the Supreme Court. And there are, there are times I walk out. Most times I walk out and I have a really good sense of what the court's going to do.

Neal Katyal

And this was not one of those times. And that itself is surprising because the claim made by Donald Trump is so bonkers, to use the technical legal term, that that itself is surprising. Now, part of it, and I do think the coverage of the argument, I was actually at the court and watched it in person. I do think some of the coverage was a little bit wrong in saying, like, Trump definitely is going to get an immunity claim and so on. You know, part of this is the dynamics of oral arguments in which there are a lot of early questions, but it's the later questions that really matter, and I'll explain why.

I think Jack Smith's lawyer made a lot of headway through the argument. The other is just differences in style. I mean, the Trump lawyer was very bombastic, and that makes for good media coverage, but it's not the way the US Supreme Court operates. And this Trump lawyer, like, he walked in, he sat on the wrong side of the courtroom. Then he proceeded to make one extreme statement after another and then went so far, as part of his theatrics, to waive his rebuttal, which you never do at the Supreme Court.

It's not like a. It's not like a show. It's, you know, a solemn legal proceeding. So, you know, all of that, I think, makes the reporting a little bit skewed because the Jack Smith lawyer, Michael Dreeben, he was my former deputy solicitor general. He's argued more than 100 cases.

Very scholarly and, like, just more like a colleague to the court than an advocate. And that, again, doesn't make for great headlines. But it did really show him building, if you sat in that courtroom, you saw it was building credibility with the justices. That said, there were justices like Justice Kavanaugh and Justice Alito, who clearly wanted to give some immunity to Donald Trump. And there were others on the court, Sotomayor, Kagan, Jackson, right away, who said how bad this would be allowed the presidents to launch coups or to have Navy SEAL team six go and assassinate a political rival.

But Justice Barrett, notably, I would include as part of that camp, you know, midway through the argument, she even said at one point, in response to a point made by Jack Smith's lawyer, Michael Dreeben, about how the president couldn't be above the law. She had to be responsible for crimes. She said, I agree. So, you know, there are four justices who are, I think, very much rejecting this notion of absolute immunity for the president. And the key question is, where is the chief justice?

Jane Mayer

Yeah, can I dig into that, Neil? Because I agree. I was also struck by Justice Barrett, but it seemed to me that Justice Roberts, Chief Justice Roberts was kind of pretty firmly coming out, especially at the beginning of the government's argument, and saying, like, no, I have questions about the appeals court ruling that were presented. And so I feel like that then shaped people's views about where Roberts was and where the whole case was going to go as a result of that. Yeah.

Neal Katyal

So the chief actually began by asking a bribery hypothetical to Trump's lawyer that I think made clear that he's very worried about an absolute immunity claim. But then, you're absolutely right. He then went on later in the argument to say, isn't the court of Appeals decision here tautological? It basically just says, we can always indict a president. And, you know, this is the one place.

And I thought the lawyer for Jack Smith, Michael Drewin, did such an excellent job. But this is the one place where I think he fell down a little bit. And I'm sure the justices, you know, some of them will point this out. But the answer to the chief is the court of appeals opinion is really narrow. Indeed.

It starts with the words we note at the outset. Our analysis is specific to the case before us in which a former president has been indicted on federal criminal charges arising out of an alleged conspiracy to overturn federal election results and unlawfully overstay his presidential term. And this is a point that Liz Cheney has made this morning, which is, you know, the one place in which we know the president is cut out constitutionally and has no duties whatsoever is certification of the election for the best of reasons. Otherwise, an incumbent president would engage in self dealing. Michael Dreeben made this point a bit yesterday as well.

But I think that there is a path to getting to a narrower decision, just like the Court of Appeals decision. And I think it's something that the chief might actually support the idea that, at least here, when you're dealing with these kinds of allegations in which the president is constitutionally a nobody, when it comes to certification of the election results and doesn't have any suite of special powers, then there isn't an immunity claim and the trial can go forward. Well, so what would be the mechanism? I mean, it seemed very clear that there was sort of this effort to separate out the public duties of the president and the private actions of him, even if hes still in office. And that thosei mean, as youre saying, it seems like they were arguing that there can be criminal charges for private acts.

Susan Glasser

So how do you separate that out? What do you foresee when they talk about sending it down to the lower courts? Is this going to be part of the specific trial thats already begun? Is it a separate sort of hearing of some sort? What do we expect to see from this?

Neal Katyal

Right. That's the million dollar question. And the lawyers for the two sides were definitely had diametrically opposite positions. The Trump lawyers said this has to go back to the trial court. And the first thing that has to happen is that any mention of official acts has to be expunged from the indictment.

The special counsel's lawyer, by contrast, said, no, no, no. All you need to do is start the trial. You can use the same indictment. You can't use as the basis for a criminal charge some official act taken by the president. But all that can come in as evidentiary atmospherics.

And that was what happened, after all, in the United States versus Nixon, the Nixon tapes case. I suspect that if Smith is going to win, that is the way to win. And I know it's always hard to predict, and I certainly want to say that here, that this is even, the justices were even all over the map. There's one point, actually, in the courtroom where I thought that there was a little bit of a turning point. And it came almost 2 hours into the argument, more than an hour after the special counsel's lawyer had begun speaking.

But Michael Drabin said, you know, he described what Donald Trump did to the Justice Department in terms of pressuring the Justice Department to send letters claiming that they had concerns about the legitimacy of the election to the states. And when the Justice Department officials refused, he threatened to fire them all. At that moment in the courtroom, you could hear a pin drop and you could see all the justices paying deep attention. I do think that that one, you know, that's the place in which they're going to say, boy, we really just can't let this behavior go on scot free now. You know, I think it's a shame, by the way, that you're having to rely on my impressions in the courtroom for this.

You know, it's kind of a crazy thing that we're in the 21st century and we don't have the ability to, of all of us as Americans who pay for these courts, to see the proceedings for ourselves and, you know, and watch the facial expressions of the justices and the like. This is also playing out in New York, where there's a hush money trial. We don't get to see that either. I mean, this is a big democratic problem. These are, courts are deciding massive things for our future, and you're relying on little me to try and translate it for you.

Evan Osnos

Well, we do have this strange experience of picking up the newspaper in the morning and seeing a sketch artist's rendering of the former president sitting in the courtroom in New York. It is a, it's one of those examples. If you were an alien dropped in and explained how this process worked, you would say, this doesn't make any sense to me. Exactly. All right, let's take a break.

And when we come back, more from Neil Katyal on the consequences of Trump's immunity case.

Jane Mayer

I'm Alex Schwartz. I'm Nomi Frey. I'm Vincent Cunningham. And this is critics at large, a New Yorker podcast for the culturally curious. Each week, we're going to talk about a big idea that's showing up across the cultural landscape, and we'll trace it through all the mediums we love, books, movies, television, music, art.

And I always want to talk about. Celebrity gossip, too, of course. What are you guys excited to cover in the next few weeks? There's a new translation of the Iliad that's coming out. Emily Wilson.

Neal Katyal

Really excited to see whether I can read the Iliad again, whether I'm that literate. I mean, the jury is out. I can't wait to hear Adam driver go again in an italian accent in Michael Mann's Ferrari. He can't stop. I mean, and bless him, I can't wait.

Jane Mayer

Molto bene. Molto bene.

Neal Katyal

We hope you'll join us for new episodes each Thursday. Follow critics at large today, wherever you get podcasts. You really don't want to miss this. Don't, don't miss this. Don't miss it.

Jane Mayer

See you soon.

Evan Osnos

Can I ask a question about something? At one point, Samuel Alito kind of focused his questioning on this question of the potential long range effects of this, of whether not allowing presidential would put democracy at risk. You would get this in his telling, a kind of pattern of vengeful prosecutions of former presidents. If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy? And we can look around the world and find countries where we have seen this process where the loser gets thrown in jail.

Where do you think that ends up percolating through the nine justices? Do you find that to be the prospect of a broadly persuasive argument? Well, I do think it's a real legitimate fear. I mean, you know, Justice Alito maybe, in my view, overstated it, but there is a fear, of course, that a vindictive president or attorney general could go and target his political opponents, including his former rivals. You know, I just think, as Justice Jackson pointed, sure, I get that concern, but, boy, isn't there a bigger concern on the other side of allowing a president to be unchecked by the criminal law?

Neal Katyal

I mean, Trump's lawyer was asked. So Tamara was, like you said in the court of appeals, that your position would allow the president to go and send Navy team six to assassinate a political rival. Do you stand by that position? Answer from the Trump lawyer. Yes.

Susan Glasser

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. They could. And why that is, I think the technical term here is cray, Craig.

Neal Katyal

It is not something that the constitution could ever countenance. Indeed, the whole point of the constitution was to overthrow the monarch and to make it so that nobody was above the law. So this is just crazy town. But, Neil. But it seemed like the justices, nobody really expressed almost that point of view.

Susan Glasser

I mean, I think some of the more liberal justices, see, they came back at him about how we don't have a king in this country, and if they had wanted to give a president immunity, they could have. But they actually talked about targeted assassinations as if it was a possible policy choice of an opponent in politics. I mean, were you surprised that this conversation was taking place in that august forum without more of a sense of, oh, my God, what are we talking about here? Yeah, absolutely. And the point in which it got really almost ridiculous was when Justice Kavanaugh asked Michael Dreeben about Justice Scalia's terrific dissent in Morrison versus Olson.

Neal Katyal

This is a case in 1988 in which the independent Counsel act was upheld seven to one, with Justice Scalia as the one saying, look, we can't set up a constitutional structure that creates a headless fourth branch of government that can just prosecute anyone at will. And Justice Kavanaugh said, I'm really worried about that. I take those concerns really seriously, which is really odd, because that person on the court who served in the independent counsel's office was a guy named Brett Kavanaugh. And indeed, back in 1998 and 1999, when I was first at the Justice Department, I had the privilege of writing the special counsel regulations and killing the independent Counsel act. That was my job.

And we looked at the abuses of Ken Starr and that independent counsel's office as exactly the model of what not to do. So the whole point of the special counsel regulations that Jack Smith is serving under is to prevent what Justice Scalia was concerned about. And for Justice Kavanaugh to say, well, I'm really concerned about this, is to, you know, is just kind of the most surreal experience. You wanted to match. Well, you know, just to bring it back to how do we constrain a rogue president?

Jane Mayer

Right. Which is what, in the end, these arguments are about Donald Trump. This isn't a theoretical case. Right. Like this actually already happened.

And one of the things that's so striking is that Trump's lawyer, right, he's arguing essentially, well, the constitution says we have impeachment. But of course, in the real world of politics today, the prospect of a meaningful conviction, not only has it never happened in american history, but the way the US Senate is, there's just no meaningful prospect for Democrats or Republicans to achieve that kind of a super majority in the Senate that would result in a conviction in this partisan moment. And so, you know, to say, well, we have impeachment and rely upon that, it struck me as so remarkable. We have the Ketanji Brown Jackson clip about what might result, and maybe we should play that here, which is she invokes this chilling scenario, essentially, of Donald Trump being back in the Oval Office and nothing constraining him. You seem to be worried about the president being chilled.

Ketanji Brown Jackson

I think that we would have a really significant opposite problem if the president wasn't chilled, if someone with those kinds of powers, the most powerful person in the world with these greatest amount of authority, could go into office knowing that there would be no potential penalty for committing crimes. I'm trying to understand what the disincentive is from turning the Oval Office into, you know, the seat of criminal activity in this country. So is there a disincentive at this moment, given the uncertainty that the court sort of injected into this conversation? Well, for over 200 years, there's always been that uncertainty. Every president, and this is something that Jack Smith's lawyer pushed really hard.

Neal Katyal

Every president has feared the prospect of criminal liability, and it's encouraged them to color within the lines if the court does what Donald Trump is asking it to. I think you're right to say those constraints are now blown, blown over. And all we have is impeachment, which is a practical matter in today's age, with political partisanship being what it is, is not much of a check at all. And that's what I think you heard Justice Jackson getting at. Now, look, I mean, these are hard governance problems.

Whenever you're trying to design a system to guard the Guardians, it's a real problem. It's an age old problem. It's, you know, the subject of doctor Seuss books like who watches the Bee watchers? It's everything from Plato on. But I don't mean to understate the concern voiced by Justice Alito or Justice Kavanaugh.

It is a real concern. But I think Justice Jackson got it exactly right. The concern on the other side is so much more overwhelming, particularly when you're given the might of the presidents in the modern presidency. I mean, that came up in the argument yesterday with one justice. I think it was Justice Jackson saying it seems pretty anomalous that of all the people to have immunity, it's not like the subordinates have immunity.

Trump's own lawyer said that. But you're just saying the one person who gets off scot free as the president, I mean, that's perfect Donald Trump argument. Everyone else is left holding the bag and he's the one who gets to get off Scott free. Yeah, it was Justice Jackson. And I was really thinking about that because, of course, to take it back to the criminal trial that's happening in Manhattan at the exact same time, once again, Donald Trump's subordinates, they've literally already gone to jail for the offense that he's now being tried for.

Jane Mayer

And you know, you think of all the many kind of junior folks that Donald Trump has, you know, left for roadkill along the way. Arizona, just this week. Exactly right. Just this week, unindictive. There are 18 people indicted in Donald Trump's fake electors thing.

They wouldn't be any fake electors if it weren't for Donald Trump. But he, once again, is just the unindicted. It's good to be the king is the takeaway from this. Neil, we have to let you get back to your real work, but before we go, if we could just briefly ask you, how do you anticipate this will play out? What's the next key thing you're going to be listening for or looking for in this case?

Neal Katyal

Well, the justices, either yesterday or today, probably today, will discuss the case at a conference because it's a special session. We're not sure of exactly which day it is. This was added to the calendar late. They're going to take a vote that right then as to who wins and the senior most justice in the majority will get to assign the opinion, that person almost certainly will be the chief justice. It seemed like just given the dynamics, he was the one, he's going to draft some sort of opinion.

My gut is that it will be an opinion that kind of doesn't give either side what it really wants. No absolute immunity, no rejection of all immunity. And then the question going back to something you said earlier, is, what does that mean for the trial court? Does that mean the trial court can go on with the trial right away? Does it mean an evidentiary hearing for the trial court?

And this is the one thing I think the commentators yesterday really missed, which is even if Smith loses, it was pretty clear that there were nine. All nine justices were fine with the idea that private acts taken by a president create criminal liability. The Smith, the Jack Smith theory of the case is a good chunk of the indictment where purely private acts, and even Trump's own lawyer in the Supreme Court admitted as much yesterday. So if Judge Tatkin wants, and particularly if she's concerned about the point Liz Cheney made this week, which is that the prosecutor, Jack Smith here, has all sorts of evidence that was not available to the January 6 committee, and that evidence should come out before the american public in advance of the election. Judge Chutkin has the ability as the trial judge to have evidentiary hearings that could go on for weeks in which Smith presents all of this evidence.

It won't be to a jury, but it will be to the judge and ultimately to the american people. So there is a path forward, even if Trump gets what he wants, which is a some recognition that official acts of the president have immunity. Neal Katyal, thank you very much for coming on today. We're grateful for it completely. Neil, thank you.

Jane Mayer

That was great. So interesting. Thank you, guys. Great to see you. Thanks for having me.

Evan Osnos

When we come back, we're going to talk more about this question of what do you do about a kingly Trump?

Susan Glasser

You come to the New Yorker radio hour for conversations that go deeper with people you really want to hear from, whether it's Bruce Springs or questlove or Olivia Rodrigo, Liz Cheney, or the godfather of artificial intelligence, Jeffrey Hinton, or some of my extraordinarily well informed colleagues at the New Yorker. So join us every week on the New Yorker radio hour, wherever you listen to podcasts.

Evan Osnos

God, Neil is so good. He sees this thing in six dimensions that we don't get when we're. No, I thought that was really, really helpful to have not only the perspective of in the room, but in particular in rooms that the rest of us can't get into. And his knowledge of behind the scenes of the court is particularly valuable. It's our most opaque institution until Jane Mayer blows the lid off of it and her forthcoming book.

Jane, there was a really interesting moment when Neil was talking about this potential path that there might be ahead in this case that I had not heard that much about. You're following this very closely. What are you picking up? Well, yeah, I mean, I've now talked to a couple really prominent supreme court litigators who know the system very well, and they actually see a path forward that this case could take that's not a slammed door in everybody's face. As it felt like to some of us watching this yesterday.

Susan Glasser

The path they see is that this may go down to the lower courts at some level, either the trial court or the appeals court, but probably the trial court, where theyll either therell be some kind of hearing where the judge will decide which of these charges are private acts of the president and thus can be charged criminally and which ones are public. And that that process, as Neil Katjal just said, may provide a lot of the evidence in this case that the public hasnt seen. That may be very important for voters to hear before the election. I mean, it's a, it's a, you know, this is a really circuitous, narrow thing. It's a bank shot, but they see a bank shot, and they heard it yesterday.

And you could hear it a little bit with, especially with Amy Coney Barrett, where she was going down the lists of charges against Trump and saying, is that public? Is that private? Petitioner turned to a private attorney, was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results. Private as at large. I mean, we dispute the allegation, but that sounds private to me.

Amy Coney Barrett

Sounds private. Petitioner conspired with another private attorney who caused the filing in court of a verification signed by petitioner that contained false allegations to support a challenge that also sounds private. Three private actors, two attorneys, including those mentioned above, and a political consultant, helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding. And petitioner and a co conspirator attorney directed that effort. You write it quickly.

Susan Glasser

I believe that's private. I don't want to. So those acts, and she got Trump's. Own lawyer to say several of them were private acts. Right now, I think that there was a, you know, a lot of people heard that.

Jane Mayer

I think there was a clarity that, you know, this was not the end of the federal case against Donald Trump, but it was a delay. And the problem here is that, but in the legal realm, theres a path forward. But were living in the world with a very, very constrained political calendar. And I think, first of all, the lesson of the last three and a half years has been that the process and the built in slowness of the legal system, which generally speaking is an enormous advantage in many ways for justice in this country, is also an incredible liability when it comes to holding Donald Trump to account. And he has played off this his entire career, has certainly benefited from that.

And I do think there's a credibility issue, even this idea that we're going to somehow rush and throw some more evidence out into the public view every single day that this case is delayed more, that brings it closer to the fall of a presidential election year, whether it's an evidentiary hearing or the actual trial. And I'm very, very skeptical there will be an actual trial on this. Regardless, you're talking about putting this evidence out by federal prosecutors that Donald Trump has, you know, exerted much effort to demonize as illegitimate persecutors of him who are operating off of President Bidens Justice Department in order to demonize him in the middle of an election and at a best case scenario, that were talking about here once again. Right. Its about this clash between the legal culture and the political culture.

And legally speaking, you know, I thought what Neil was saying was terrific. The problem is that enters into this toxic political environment. And I just, I think that's the tragedy, Shane, I gotta tell you, it's the tragedy of 2024. No, I agree with you on this. And I think that the justices seeming, you know, almost deliberately trying not to deal with the case in front of them, the conservative justices, shows you that they're sort of deliberately ducking, although, and you know, that they can, they can take a case fast when they want to.

Susan Glasser

They took the case out of Colorado super fast before the primary. Yeah. And they also took Bush v. Gore really fast. And not only that, in that case, they made it.

They came to a decision that they said, this is a one time decision. It shouldn't stand as precedent for everything else. It was loudly criticized by many. But they can do this when they need to do it, when they feel the urgency. Well, us d Nixon, which is another example of that.

Jane Mayer

But I want to throw out a provocation. And actually, I thought, Neil, we didnt get a chance to weigh in on this more. But even he suggested that this scenario thrown out by Justice Alito, theres something there to be concerned about. I cannot dismiss out of hand the fear that a presidency without immunity as they conjured up, as the conservative justice is conjured up. When I think about Donald Trump back in the White House and the idea that he would be emboldened to order prosecutions of the next president or the last president, I have to tell you like, this is not a theoretical threat that these conservative justices were making, at least as I see it, since Donald Trump has already literally threatened multiple times to indict Joe Biden.

He's actually said that in writing two. Things, though one is the key word there is absolute, because what he's asking for is not some reasonable level of immunity that would in some effort, of. Course, but Trump, nobody was agreeing with that. Well, no, because that is his argument. His argument is absolute immunity.

Evan Osnos

And what justice Alito is imagining is this strange scenario in which we're supposed to try to prevent Donald Trump from being Donald Trump, that if the scenario is that he's gonna get in office and then use this power to prosecute his predecessor, well, then, in a sense, you also have to acknowledge the fact that it is up to the court to also prevent him from even having the opportunity to do that by recognizing that he has made himself, in a sense, inadmissible to the presidency. Amy, can I just say, also, I saw a comment from Harvard law professor Larry Tribe, who said, this sounds like a congressional hearing yesterday, not a law case. And these are very interesting issues. You dont need to get to them in order to deal with this case. These are, in a way, breaking the bait when you fall into this endless trap of becoming the next federalist convention and deciding what should be the rules for democracy.

Susan Glasser

This is a particular case in hand, and they should deal with the case in hand, and they basically are stalling. By, you know, Jane, I think this is an excellent point. It was raised a couple times in the argument, but it didn't seem like anybody picked it up, which is that you don't need to go to all these places, rule before you. And it was almost the exact opposite approach of the opinion in the appeals court that Neil began our conversation with. But I kept thinking in this whole conversation, you know, there's the old adage, right, that, like, bad cases make bad law.

Jane Mayer

And I would say we now have the 2024 corollary, which is that bad presidents make bad precedents. And I am worried about that. I am really worried about that. And he spells them the same way, by the way, I want to ask a question, too, about our own business here, which is sort of trying to assess the role that Donald Trump's legal drama plays in the political culture, to use Susan's good term. The assumption at the outset was, oh, every day that it's, that Donald Trump's in court, it sort of fortifies his base and blah, blah, blah.

Evan Osnos

Actually, the polls are a little more complicated than that. What you're seeing so far is that it hasn't actually helped him, that there was some evidence that he's eroding overall a bit, his support. How do you think this is playing out? Think that this is, in fact, this image of him sort of sitting there glowering at the defense table, looking increasingly haggard and desperate. Does this, is this helping him?

Susan Glasser

Okay. Personally, I think that the role that we should be playing is spending less time forecasting what we think other people think about this. Well said. Less about the polls and how it might be playing. You know, how do we know?

We don't know. Our job is to observe what's going on and maybe add context and sort of say he's on trial in New York for deceptive acts to try to steal an election. And put that in context. This appears to be a pattern of the man. Weve seen this throughout.

We can add that we can say hes been lying for years and explain how he falls back on lying again and again and again. Amy and by the way, I think, Jane, I totally agree with that. Were sort of shouting into the unknowable future in a way, with the prognostication around whether the court cases do or don't matter. I actually thought that what was happening this week was in part a function of what Neil brought up, which is the remarkable lack of transparency in our court system. And not only are these print court arguments not televised for the public, but this case in New York is not.

Jane Mayer

I think the result, quite clearly from my perspective, is that it's getting much less coverage and much less gripping the public attention than it would otherwise. And I have to tell you that I thought the testimony this week from David Pecker, the former head of the National Enquirer, who engaged in, according to his own sworn testimony, essentially a corrupt deal with Donald Trump to tilt the playing field in the 2016 election, literally coming up with false stories about Donald Trumps republican rivals and democratic opponent in 2016, Ted Cruz, Marco Rubio, Ben Carson, Hillary Clinton. He admitted under oath on the stand that he engaged in a corrupt deal, that Michael Cohen, Donald Trump's fixer, would call him up and give him fake stories to put on the front of his tabloid that they were paying off people on behalf of Donald Trump to help him. This is explosive testimony. Trump, by the way, once he became the president of the United States.

And I think it's directly relevant to these Supreme Court arguments. Trump, according to this testimony by Pecker, invites Pecker to the White House. He holds a dinner for him. Hes talking about the payoff, Karen McDougall, another woman he was alleged to have had an affair with in the White House. He invited David Pecker, the National Enquirer guy, to a meeting at the White House that ultimately included Mike Pompeo, at the time the director of the CIA, James Comey, the director of the FBI.

This is extraordinary stuff. And I dont think it's fully registered on people. I don't get a sense that the country is, you know, on the edge of its seats about this and you can't tell. But, you know, I don't think so. You know what our job is, okay.

Susan Glasser

It's gripping you. It's gripping me. Yeah. My job is to explain to the rest of the country why this is extraordinary stuff. Yeah.

And, you know, take it or leave it. I agree. I also think, you know, there are. This is, you know, this is what we're doing. We're telling people what happened in this court that they may not have taken time out of their day to see.

Evan Osnos

I will just, if we can all choose our one detail that perhaps has had the most searing impact on us, it might be for me that Pecker testified that at the White House in that meeting, Michael Cohen told him that Donald Trump has, quote, Attorney General Jeff Sessions in his pocket. Unbelievable. It's just unbelievable. Rarely said in a presidential context. Amazing.

Jane Mayer

I guess Donald Trump then spent the rest of 2017 and 2018 being mad at Jeff Sessions for not being as in his back pocket as he wanted. Him to be mad at all of them for not just being in his pocket. We talk about King Trump, right? Like, this is it. It's the court of a guy who, that's how he operates.

That's the kind of story we would have again and again and again and again. If we have four more years of. This, can I just, I want to end with a quote that I just read this morning. Mitt Romney, right? No, no, this was from Heather Cox.

Susan Glasser

Okay. We got to play Mitt Romney. All right. But from Heather Cox Richardson's newsletter. And she ends with a quote from Tom Paine, who was asked by others, what are we going to do?

We have no king. And he said, in America, the law is king. Let's hope we end there. Dan, you're so sublime. My quote to end the conversation was from Mitt Romney, who was asked by reporters at the Capitol this week about the case in New York.

Jane Mayer

And he said, well, you know, you don't pay somebody $130,000 not to have sex with you. All right. That's the quote. Words that the founders never anticipated. All right, Jane, Susan, always a pleasure.

Evan Osnos

Thank you, guys. Your royalty in my book, and it's. Great to be with you. We crown you the best possible moderator. All hail King Evan.

Thanks. And we'll see everybody next week.

This has been the political scene. From the New Yorker, I'm Evan Osnos. We have. We had production assistance today from Alex Delia and Sheena Ozaki, with editing by Gianna Palmer. This show was mixed by Mike Kutchman.

Steven Valentino is our executive producer. Conde Nast's head of global audio is Chris Bannon. Our theme music is by Alison Leighton Brown. We'll be back next week, and thank you very much for listening.

Susan Glasser

From PRX.

Trump's "Bonkers" Immunity Claim, with Neal Katyal

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1: Introduction

2: Main Argument

3: Court Dynamics

4: Implications for Democracy

5: Conclusion

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