The Just Security Podcast

Presidential Immunity After Trump v. United States

• Just Security • Episode 74

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This week, the U.S. Supreme Court issued its decision in Trump v. United States, finding that former presidents have “absolute immunity” for certain “official acts” taken while in office. The decision is a potentially sweeping expansion of presidential power and raises many questions, such as how to separate “official” and “unofficial” conduct in practice, and how it will impact the prosecutions against former President Donald Trump.  

What are the opinion’s key takeaways? How might Special Counsel Jack Smith respond to the decision? 

Joining the show to unpack the Court’s landmark ruling, and what it means for presidential power and democracy, are leading legal experts Marty Lederman, Mary McCord, and Steve Vladeck. Just Security's Co-Editor-in-Chief, Ryan Goodman, co-hosted the discussion. 

Marty previously served in the Department of Justice’s Office of Legal Counsel and is a Professor at Georgetown University Law Center. Mary is Executive Director of the Institute for Constitutional Advocacy and Protection (ICAP) and is a Visiting Professor of Law at Georgetown University Law Center. She previously had a long career at the Department of Justice, as a federal prosecutor and later in leadership of the National Security Division. Steve is a Professor at Georgetown University Law Center, and he covers the Supreme Court both for CNN and through his Substack newsletter, “One First.” Marty, Mary, and Steve are all Editors at Just Security.  

Show Notes: 

Paras Shah: This week, the U.S. Supreme Court issued its decision in Trump v. United States, finding that former presidents have “absolute immunity” for certain “official acts” taken while in office. The decision is a potentially sweeping expansion of presidential power and raises many questions, such as how to separate “official” and “unofficial” conduct in practice, and how it will impact the prosecutions against former President Donald Trump. 

What are the opinion’s key takeaways? How might Special Counsel Jack Smith respond to the decision? 

This is the Just Security Podcast. I’m your host, Paras Shah. Co-hosting with me today is Just Security’s Co-Editor-in-Chief, Ryan Goodman. 

Ryan Goodman: Joining the show to unpack the Court’s landmark ruling and what it means for presidential power and democracy are leading legal experts Marty Lederman, Mary McCord, and Steve Vladeck. 

Marty previously served in the Department of Justice’s Office of Legal Counsel and is a Professor at Georgetown University Law Center. 

Mary is Executive Director of the Institute for Constitutional Advocacy and Protection (ICAP) and is a Visiting Professor of Law at Georgetown University Law Center. She previously had a long career at the Department of Justice, as a federal prosecutor and later in leadership of the National Security.

Steve is Professor at Georgetown University Law Center, and he covers the Supreme Court both for CNN and through his Substack newsletter, “One First.” 

Marty, Mary, and Steve are all Editors at Just Security. 

Ryan: Welcome, everyone. It's really a privilege and pleasure to have such extraordinary minds and people with such great experience in this topic area to discuss what is a complicated Supreme Court opinion, and a lot of uncertainty. So, what I thought to do just at the outset, is to do some level setting to describe in as plain and objective manner as I can, what the framework is that the US Supreme Court set forward in this case, and just to then invite all of you to say whether or not you think that's accurate, or if there's any kind of amendments you'd like to make to my description, so that we're kind of get a sense that we're all on the same page.

So, the way I think of the court opinion, is that the question is whether or not a former president can be tried, prosecuted, for actions while in office. And the court answers that question by establishing broad based immunity, but not complete immunity. And it basically divides all actions by the former president while they were in office into three categories. So, category one is unofficial private conduct for which they can be prosecuted, just to give an example, that the individual is acting as candidate seeking office, not in their official capacities as an office holder. Category Two is official conduct for which they enjoy absolute immunity. That is, taking actions that are within the core executive authority that the court refers to as conclusive and preclusive constitutional authority. That is defined in part by preclusive, that Congress cannot regulate the president in that domain, and that there are some historical examples that are kind of low hanging fruit that they give us examples, one exercise of the pardon power, two removal of cabinet members, three recognition of foreign governments. That's the core power of a president, and which the court then breaks new ground, by also saying core power now also includes communications with the Attorney General and communications to the Department of Justice in the realm of directing investigations and prosecutions. So those are the two ends of the spectrum. Middle category, the third basket, is official conduct that does not enjoy absolute immunity, but enjoys presumptive immunity. That's everything else, every other action of the President that is official conduct within the president's office, and for that it's presumptively immune, the default is that they are immune, they cannot be prosecuted for that conduct. But the presumption can be rebutted. And the test for rebutting that immunity is that the government must show that charging that conduct poses no dangers of intrusion on the authority and functions of the executive branch.

Not a balancing test, just that the government has to show that it poses no danger of intrusion on the authority and on the authority and functions of the executive branch. And those are the three categories. And two other pieces of the framework: one is that if conduct is immune, either through absolute immunity or presumptive immunity, then that same official conduct cannot be used as evidence either in a criminal prosecution; and then second, additional add-on to the framework is use of any evidence about the motives of the president is taboo, the prosecution cannot use any evidence of the motive of the president for making the distinction between private conduct versus official conduct. That's where motive comes in. And many people I think, are missing, at least according to this court opinion, where motive evidence can or can't be used, that's where it comes in, at least in this opinion. So that's the level set.

Mary McCord: Can I add one thing to that? I generally agree with your three buckets, because that's how the court frames it. But, with respect to that middle bucket, where there's the presumptive immunity, I actually think the majority left that an open question. They said for this area, that is not core executive functions, we don't have to decide whether there's absolute immunity, or presumptive immunity. We can leave that for another day. Which is yet another sort of punt, kick things down the road that are just going to make things much more difficult, because under the rubric set up by the court, of course, Judge Chutkan, the DC district court judge who had this case originally, is going to have to go through all of the charged conduct and make decisions about official or unofficial and in that middle category, applying what the court said to do, she will be looking to the government to see if they can rebut the presumption. 

But it could be that at some future time the Supreme Court will decide that's not even presumptive, or rebuttable, it's absolute. It was a strange thing to me, for them to leave, sort of hanging. And the only other amendment is that in this restriction on the consideration of the President's motives in dividing official from unofficial, I think that's not just a restriction on the prosecution, that's a restriction on what the lower courts can do, I would say.

Ryan: Great. And on your first amendment, the way I also think about it is, I do a word search for the words at least in the document because they keep saying that the President is at least presumptively immune, 

Mary: Whatever that means.  

Ryan: Whatever that means, whatever on Earth that means. So, the first question I want to pitch us almost at the 30,000 foot level. The first question is that the dissenting opinions, and legal experts like ourselves, that have read the majority opinion can come up with a parade of horribles, hypothetical examples, that it appears as though the opinion gives license to them. And those hypothetical examples include the one that was aired in oral argument at the Supreme Court at the DC Circuit level, and in the dissenting opinion, why does this not mean that the President of the United States can order SEAL Team Six to assassinate his or her perceived political enemies? Why doesn't this mean the President can order the Attorney General to prosecute his or her perceived political enemies and members of the media? Why doesn't this mean the President can order the Attorney General to seize voting machines? Why didn't this mean the person can issue a bogus national emergency and none of that is subject to prosecution; it’s all immune, and it can't be used as evidence, even for the President's private conduct. So, all these parades of horribles.

One way I think that to be charitable anf to understand what the majority opinion is saying is yes, we accept it. We're not rebutting that example, exactly, by the dissent on the seal, Team Six, etc. Here's the view. The view is, and it's kind of expressed by Gorsuch in the oral argument as well, that is correct. But that is a trade off, and we have to decide on the tradeoff. And that's an outcome of our opinion, and its framework that it does allow for that and that a president cannot be prosecuted for that conduct. But we think that is not as likely or as significant as the other side of the equation. And the other side of the equation is, we think that if we do not have this broad based immunity, then a president or all presidents are going to be hampered in their ability to carry out their responsibilities, because they're always going to be looking over their shoulder and being extra cautious.

We don't want them to be extra cautious, because they're thinking about the future, if they have any criminal liability. And that interferes with their ability to carry out the presidency. And we also don't want to see successive presidents using prosecution to go after their predecessors. And we think that's more, those are more likely. And we think those are more concerning severe consequences. And that's their normative framework. One, do you think that's what's going on? To understand the court and to understand how we think about all of the parade of horribles or am I missing it?  

Steve Vladeck: So, I'll just say, I think I think two things are true. First, I think we haven't had a lot of cases where this particular court has had a chance to flex its Article Two muscles. And I think people might have forgotten just how radical Brett Kavanaugh and John Roberts are in their views of Article Two relative to even conservative Supreme Court justices of yore. And so, Ryan, I think there's something to that point. But the other thing is, I think the real sort of disconnect, the real naivete, of the majority opinion is if that opinion were written in a world in which we had a robust impeachment process and a Congress that we remotely trusted to act in its institutional interests, that opinion would be a lot easier to swallow. Because the reality is the President seizing voting machines, the president sending out SEAL Team Six — criminal prosecutions never going to be the most important deterrent. In those circumstances, immediate impeachment and removal is the deterrence.

And I think the real problem with this opinion, which is a problem with so many of the courts’ big opinions this term, is it pretends that our current political situation is irrelevant. And it sort of hands down like theoretical constitutional rules that assume that things are working elsewhere in government that have long since broken down. And so my problem with the opinion is not the sort of the general discourse on Article Two from people who have always been in the tank for Article Two. Rather, it's the sort of the complete refusal to accept that the alternative, in my view, preferable mechanisms for determine that kind of abhorrent conduct by a sitting president have failed and are not likely to be resurrected anytime soon. And so, this is supposed to be the stop gap, and the courts reaction is never mind. 

Marty Lederman: So, there's a lot on the table right now. At least three big topics, and I think it would be worth sort of spinning all three of them out in in separately in some detail, Ryan, and the third one coming from Steve's comment. So, the first is this series of hypo’s. Does this invite these kinds of gross abuses of the president's office? Another is whether, I agree with Stephen entirely, that this is largely a function of the failure of 43 Republican senators to vote to convict Trump, at least in the second impeachment, which obviously should have happened. There seem to have been at least 67 senators who Mitch McConnell thought were prepared to say yes, until they realized that it would be political suicide. Had that happened, had the system worked as it ought to have, I agree with Steve that I'm not sure that Trump wouldn't have still been indicted and tried. But he would just be a private citizen, and no one would be thinking of the future. So just to start with the third point, Steve's point, in some sense, Steve is right, that this Court seems surprisingly indifferent to the fact that the person who might take the oath of office on January 20th is someone who goes around bragging that he's going to destroy all the institutional norms and violate laws. And the thing that bothers me the most or makes me most disheartened about the opinion is that a majority of the justices don't appear to care very much if that is the case.

Right, but that gets to the third point, Ryan, and I do want to separate them out. And you asked, like, isn't this opinion, isn't their judgment being driven by their something that is very Trump specific, which is this idea that going forward presidents will just start indicting their predecessors left and right for their exercise of bad judgment in the exercise of their article to discretion, and that that will therefore chill presidents. It will be looming over presidents as they make hard decisions. And I think the answer to that is it's almost the flip side, is yes, but that's entirely a function of Donald Trump. Right, that if Donald Trump had not come by no one would be thinking this was a problem. No one thought it was a problem when Richard Nixon was going to be indicted for his official conduct and the smoking gun tape. No one thought you needed criminal immunity. And moreover, I do think I want to discuss this with you guys, but you can decide what order to do it in Ryan. I think that basic judgment, which is really most prominent and about pages 40 to 41 of the Roberts opinion. He tells this, he paints this whole story of presidents being sheepish and deterred and chilled by the prospect that every decision they make, that others might think is irrational or ill motivated, will then become later the subject of criminal prosecution. Well, I'll tell you, President Biden right now has as much reason as any president in the history of the United States to think that his successor might try to indict him for his ordinary presidential conduct, right, because Donald Trump goes around bragging that he's going to do so. He did so within hours of this judgment.

And I would be willing to wager that it hasn't had the slightest impact on President Biden's decision making, not even one iota. And I think that basic empirical predictive judgment by the court, that this is that things are different from henceforth, and presidents are going to be chilled in their conduct, because their successors might indict them just has no establishment in fact. I just don't think there's any empirical reason to think that I think. You're right, Ryan, that that is the entirety of their rationale here. It's not text. It's not history. It's not common understandings. It's not on any of those things. It's we need to save the Republic, from the specter of this chilling effect going forward that we now envision. And I just think the case for that is nonexistent, quite frankly. But we should circle back to your main question about what are the implications of all this for Article Two functions, but I do think it'd be worth breaking down these questions, one by one. 

Mary: Can I just respond to the last points, which also drew, from Steve's point. I totally agree that they decided to make this balance and do, what I think it was Gorsuch who said during argument, write a rule for the ages, which was utterly unnecessary, because as both Steve and Marty have pointed out, we haven't ever needed this rule in any other of the ages we've been through. And this was solely because of Donald Trump and his behavior. And they could have done this so much more narrowly. That's what the Special Counsel implored them to do. They could have left the hard questions for some other time that hopefully will never have come to pass. But they could have answered the questions here that frankly, Amy Coney Barrett, in her partial concurrent says, I would have answered. And she actually is remarkably practical. And we're seeing this not just in this decision, but in other decisions of hers. 

She is not about like writing a rule for the ages. She's about how do we get a resolution of the issue in front of the court that provides practical guidance for the lower courts and for the country. And she says, and it's hard for me to understand how she could actually concur in parts of the opinion based on the way she interprets it, she says, properly conceived, the President's constitutional protection from prosecution is narrow. And then she goes on, of course, to say I would have answered questions about what's official and unofficial, the false electoral scheme is clearly personal in her view, and I would have answered those questions. But to think that she's seeing the majority's opinion as consistent with her view, that constitutional protection for prosecute from prosecution is narrow, and the words in the majority's opinion, it's just hard to interpret them as anything other than capacious. There's a disconnect here. And I don't know what to say, really, except that I had hoped after argument that her approach would actually prevail with at least one other justice, who I actually thought might be the chief, and then that didn't happen.  

Steve: So, I mean, Mary, I'm so struck by your last point, because I had someone asked me the other day if I thought that some of the more aggressive executive power stuff in the opinion and some of the stuff about evidence was stuff that the chief put in there to, “keep Thomas and Alito on side”, and my reaction was onside from what it was the chief, he went further than Barrett. I mean, there's a lot more to say about justice Barrett and this whole term, but I mean, I'm struck by the parallels to her concurrence in the Colorado ballot, disqualification case where the exact same thing happened, where she was willing to go to the bottom line that the other five Republican appointees were wanting to go to. But she said this more explicitly in the Colorado case, like, what message are we sending to the country, when you guys are going so much further, and I can't possibly agree with it. And I think that came through again, on Monday. And to me, what's so striking about that is Barrett's opinion is exactly what Judge Chutkan would have needed. Right? The footnotes walk through particular acts charged in the indictment, and says, here's how I would apply our new test to these acts. 

Here's how I would say, here's where I would put them on the line. Right? And that should have been even if you would have preferred the Sotomayor view. And even in that universe, Barrett's opinion should have been the court's opinion. And I'm just so struck, I mean, back to where Marty and Ryan were, I'm so struck by the fact that it wasn't. And the chief is no dummy, like he knows what he's doing. I think it makes me think that he has priorities that are radically different than I thought they were. 

Marty: That’s a great fourth topics, but probably one not for this podcast. But I think Steve and Mary are exactly right, that there are at least four opinions this term of Amy Coney Barrett's that are, to my mind, showing that she is deeply concerned about what her colleagues to her right are doing. And she's sort of calling them out as being quite a bit more, I'd say, unprincipled, and radical unbounded by law, then she would prefer. The two, that's this one and Trump versus Anderson, but also, her remarkable dissents in Ohio versus EPA and in the Fisher case, where she's a little bit incredulous about what her colleagues are doing and not being serious lawyers. But that is probably a topic for a different podcast. But it is very interesting, as Steve points out unfortunately, that's only you know, she's not the fifth vote, she's only the fourth vote in trying to stop that that movement. 

Ryan: Can I ask a very quick follow up to Steve in particular, potentially, but just the mathematical question of Chief Justice Roberts and what could have been, partly because it's also relevant to the future because when this if this case percolates back up, and then they tell us what's absolutely immune and the rest of it, it's important to know. Mathematically does it work though? Could he have actually joined a different grouping? Because couldn't have ended up being that it's the chief, and Amy Comey Barrett on their own plus four plus three, or maybe they get Kavanaugh, you've got three is one, group three is another, group three is the third group. And then who is writing the opinion? So he does need to bring in Alito and Gorsuch if that if that math works in the way in which I'm thinking it might end up working, or am I missing something?

Steve: I mean, this is just me talking out of my, you know, rear, I think in a world in which the chief had strived for a more moderate middle of the road opinion, like the one Barrett wrote, he probably picks up Kagan, and if he picks up Kagan, maybe he also picks up Sotomayor. Right, but a world in which the opinion is coming from the middle of the court pushing out, as opposed to from the outside of the court push again. But you know, Ryan, maybe we would have ended up with no majority opinion, right, which would have been problematic, but I actually think would have been sort of more of a short term problem than a long term problem. The point that I think can't be denied is that the chief owns this, and that whatever backroom compromises were made, whatever backroom compromises he tried to make the fact that he put his name on an opinion that goes further to protect the power of the presidency and decision of the presidency, and to insulate it from accountability that I think anything else the Supreme Court has ever written. I think it’s all inexcusable, but also, I think belies the notion that he was sort of trapped by the vote count.

Ryan: I want turned to a new question, which is, and Marty, maybe I'll start with you, just because you and I've had a prior conversation about this in part, and that's about the jurisprudential nature of the opinion, about the prior precedents, the story decisis going into it. Partly I'm reacting to some commentary I've seen maybe on cable news networks of the like, in which people seem to be saying: Oh, no, this was like a reasonable opinion that's grounded in the best that they have a legal precedence, etc. That's part of my why I asked the question. The other reason I asked the question is because when I'm reading it, I'm thinking wait a minute, didn't they just overturn Morrison V. Olson? Wait a minute, didn't they just do something that either overturned or is highly inconsistent with US v. Nixon. And so, could you talk about and explain to folks, what are those aspects of the opinion where it sends off a red flag for you as to prior precedents? So, in Morrison V. Olson, the question there is this new definition of that in the core exclusive authority is the President's relationship to the Attorney General into the Department of Justice as investigations and prosecutions — which I believe means that Congress cannot regulate in that space if it's preclusive. Is that is that right? And then the second one would be US v. Nixon. 

So, US v. Nixon is using the audio recordings of the President as evidence in a criminal proceeding. And here, we seem to be getting a different answer to that. But maybe the answer is no, it's actually consistent with US v. Nixon, because that's actually determining that the evidence is not privileged. And lo and behold, here, if it's determined that there is a presumption of immunity, but it is rebutted, then in fact the evidence can be used. So, it's not entirely inconsistent with US v. Nixon. So that's the that's the setup. How radical is this? How consistent or inconsistent is it with prior precedent? Of course, you might want to discuss Nixon V. Fitzgerald, as well. 

Marty: Well, there's a lot packed in there, Ryan, let me let me try to put it in more. I don't know practical terms for the readers who aren't familiar with those precedents. But we can discuss that or just in terms of what the court has decided. And circle back to your original question about what the implications are here. And I want to distinguish the two things that you said at the outset, that were two of the three buckets. So, we know that if it's in your personal capacity, you can be tried for it. We'll talk about that a bit later, because the court seems to have a very, very narrow conception of what counts as being in your personal capacity. But in the abstract, everyone agrees with that anyway, so that leaves the other two buckets. And they're both problematic. So, what you're calling the middle bucket, which is possibly presumptive immunity, but probably absolute immunity — as Mary was pointing out — for anything the President does within that's nominally within his or her Article Two authority. That is basically just saying Congress can make this conduct unlawful, but it can't be punished by criminal trial and sanctions. Does that is that a go ahead to basically do whatever you want, even though it's illegal? I mean, in some sense, it is right. In some sense, it gets rid of whatever deterrent the criminal law is for the President to not violate the law. As Steve points out and Mary has pointed out, there’s typically been other ways of preventing presidents from doing that internally. You can't get people to violate the law, you can't get your underlings to violate the law. 

Traditionally, there's the threat of impeachment, there's a lot of other things, at OLC our job was every day telling the President he couldn't do things that weren't subject to criminal sanction. The criminal law plays a very, very minor role at shaping what a president would do, except in the extreme case of Richard Nixon sort of case, right. And so that is a pretty radical holding and deeply inconsistent with the one case on which, the two cases on which, the three cases on which the court relied: the Burr case, the Nixon tapes case, and Nixon v. Fitzgerald. And we can get into the weeds on why I think the chief misread those cases grotesquely. But the bigger thing is what you call it, the first bucket and that is what the court calls the category of preclusive powers, core powers. That's not just a matter of criminal sanction. That is the category of things Congress cannot regulate at all. That is to say, these statutes and any other statutes are unconstitutional as applied to the President's conduct in those areas. And I think it was Steve, or one of you, maybe it was you, Ryan, who said — there's easy cases or at least cases everyone thought the court would say, Congress can't regulate the power of the president to decide which nations to recognize, perhaps the power to remove cabinet officials. I'll get back to appointment in a minute. 

And maybe the power maybe the veto power, the pardon power, although even that has been historically questionable whether Congress can't regulate the pardon power in some respects, like saying, can't grant pardons for bribes or something like that. But those are easy. But what the court does here is, as I read it, is to say not only Congress can't regulate the Justice Department's process of investigating and prosecuting cases — something Congress has been doing since the dawn of the Republic — and something that as you point out, Ryan, the court, 7-1, allowed Congress to do in Morrison v Olson. That's the whole point of the independent counsel statute, which set up a statutory independent counsel, which was used for several years and eventually Congress and the President and the Attorney General Reno thought that it should not be reenacted after the Starr report. And the executive branch and the executive branch officials who were being investigated by Alexia Morrison challenged that as an intrusion as an impermissible intrusion on the President's ability to control criminal prosecution and investigation. And the court in a seven to one holding said no, Congress has a great deal, not unlimited, but a great deal of power to shape how DOJ will show performance, criminal, investigatory and prosecutorial functions, including providing for a great deal of independence from the President's control — subject to the President being able to make sure that the laws are being faithfully executed, basically, that that the investigation is not violating the law. 

This indictment is not really that, the heart of the DOJ part of this indictment was not the President telling Justice Department officials to investigate something or bring an indictment. It was telling them to lie to state officials about what they the DOJ officials had found in terms of election fraud. Then the court, the chief, says that that discuss any discussions related to law enforcement with the Attorney General and high DOJ ranking officials is not only within the President's Article Two authority, but it's something Congress cannot regulate at all. Congress cannot make it illegal for the President to tell Justice Department officials to lie to the public and to state officials about what they have found and what they haven't. That's just, there's no basis for this holding. And it's potentially incredibly vast way beyond the context of criminal trial and criminal prosecution. This will be weaponized, I guarantee you, by executive branch lawyers and officials for time immemorial as a as an area of presidential control that is not subject to statutory regulation. That is a profoundholding. And then the question is, why the Justice Department, and why not the Department of Defense, and why not the Department of State and why not all the other departments? There's no real reason given why did the President's directions to DOJ officials is not subject to congressional regulation, but military decisions are like, like the hypos that you pointed out. 

Roberts seems to think those are far-fetched hypotheticals, I don't think he'd be inclined right now to say that those are not regulable by statute. But the logic of this opinion, and certainly what this opinion leaves open for future courts to hold and future executives to assert is truly extraordinary. And it's I think it's a misnomer to call it an immunity question. This is a question about Congress's power to keep the executive branch within statutory limits. And what the court says about that, as applied to this indictment is staggering. 

Ryan: I think what you just said there mode is so important and profound and well described. And it shows us a major impact of the opinion that I think people are just not focused on. And we've been talking prior in this conversation about how much does criminal law really on the even on the margins affect presidential behavior, but what you just described is not on the margins, it's the core of our separation of powers and the way in which government operates. 

Marty: Now, obviously, there have been a lot of Supreme Court, more recent Supreme Court justices who are not that fond of Morrison v Olson. But that basic proposition that Congress has some significant statutory authority to regulate the Justice Department and, in this case, to prohibit them from using their functions in a fraudulent manner and to lie about what they have found. To say that that is not regulable by Congress now is a stealth overruling of Morrison, but that's the of it, it's just an extraordinarily radical proposition. And one that I would add it has no, there's no textual, historical presidential or any other justification for it, nor does Roberts really cite anything. He gives a string side of things that are really off point that don't establish this proposition. 

Ryan: Can I drill down on other implications, downstream effects, following effects, knock-on effects of this court opinion so that, I think it can be so important to people listening, who, including like, I'm thinking of somebody that might celebrate this opinion for political ideological purposes or whatnot, but they don't realize all of these implications. So, is it the case that it's not just that this has radical implications of the definition of core executive powers with respect to the DOJ, with respect to congressional legislation and regulation, but also congressional oversight? And I will give two examples? And, Steve, I see you nodding your head, so maybe if you could start. 

What does this give the executive to be able to say, when Congress wants information about what's going on in the Department of Justice, no executive privilege, back of the hand. I'll give a particular example, like holding the attorney general in contempt for not turning over audio recordings of the president with the Will Hur report one example. Next one is any oversight or just in terms of hearings and information, let alone legislation with respect to the Special Counsel? 

Steve: So, I think there's, again, there's a lot there. The first point is I think we are going to see now a rash of arguments that the decision in Trump recognizes a far more expansive executive privilege than what Nixon v United States recognized in 1974. Whether it's called executive privilege or not, right, that if official act conduct is not admissible as evidence in a criminal prosecution against the president, it shouldn't be evidence admissible in any official proceeding. Now, I don't think that's what John Roberts meant. So, for example, I don't think that that's an evidentiary bar in prosecutions of people who aren't former presidents, and that's going to have to get litigated. But the majority opinion doesn't disabuse people of that argument. I mean, it's just it's one of the many ways in which the opinions not very careful to talk about what it does. I think that, point one, right is I think the arguments out there, it will have to it will eventually get rejected, but it will have to be rejected before it takes on a life of its own. 

The second point, though, is just the general gist. I mean, Marty's right, like the general undergirding and sort of shoring up of such a powerful core of preclusive — and every time I hear preclusive, I hear in Brett Kavanaugh is voice because like that was a word he would always throw around, preclusive, exclusive and preclusive. because it rhymes, I guess it makes it more coherent — is just I mean, we're back to like the middle of the Bush administration, where we spent years fighting over whether Congress had the power to regulate the torture of detainees, or the military Commission's use it at Guantanamo, or the surveillance of people on US soil. And apparently, the only thing the Bush administration did wrong was making this argument about the commander in chief and not just about the President's general article to authority. The problem is that this is going to be the opinion that launches 1000 executive power trips. And it's going to take courts in any number of years, if not decades, to sort out just how much it means or how little it means. And it goes back to the point about the extent to which opinion is just not very careful is going to be a huge issue far beyond the question of holding former presidents accountable.

Mary: So can I ask a question about this? Because it seems to me that part of the basis for this really, really broad, expansive, ruling about what is within the core powers of the executive, including essentially all conversations was his own Department of Justice. It seemed like the they were grounding that in the take care clause, right. But the take care clause is take care that the laws be faithfully executed. So, to come back around to sort of Marty's point about what does this do to congressional oversight and things like that. 

I think there'll be more litigation about this, assuming there are, you know, parties was standing but isn't there at least an argument that, notwithstanding other parts of the majority opinion, that if the source of this is take care clause, that Congress still has to have the ability, that that's inconsistent with this preclusive effect, Congress must have the ability to legislate and must have the ability to conduct oversight, which are part of its constitutional Article One powers? 

Marty: I guess, maybe I'd say yes, in theory, but I don't think the take care clause is really doing the work here. I think all of these preclusive ideas and just like executive privilege are coming out of structural concerns that the majority of the court has, in this case about chilling the president. None of the ones that are cited right — the pardon power, the recognition power, the executive privilege — none of those are textually based in the Constitution. These are all sorts of things that are judicially and executive branch derived. I will say, so in defense of Justice Kavanaugh, he does like it because it has, you know, a little of a rhyme, right, conclusive and preclusive powers. He got that from Justice Jackson's rightly lauded concurring opinion in the Youngstown case. And the chief justice here, just cites that part of the Youngstown case over and over and over again, in this opinion, as though he is following in Justice Jackson's footsteps, and nothing could be further from the truth. 

Steve: And Youngstown, Marty you know this as well as anyone, in Youngstown, Jackson still held out the possibility that in that category the President could still lose, right. 

Marty: But here's what Jackson said about that category. Not that it was vast, nothing, nothing remotely like that it covers all conversations for the Justice Department officials. Here's what he said. He said, maybe there are some conclusive and preclusive powers. But he said courts can sustain presidential control in such a case, where the executive is claiming such a preclusive power, only by disabling Congress from acting upon the subject, to get to Mary's point. And a presidential claim to a power, at one so conclusive and preclusive, must be scrutinized with caution for what is at stake is the equilibrium established by our constitutional system. Jackson's point was, we aren't going to recognize such a thing very often, if at all, because it would have a profound impact on the very heart of our constitutional system. 

Here, Roberts is turning that on its head and saying there's this extraordinarily broad core of presidential powers that aren't regulable by Congress, putting aside criminal indictment, that's the least of it. And it's really the anti-Jackson, it's far from Jackson's opinion, as one can imagine, but he's trying to wrap himself in it. And I find that a little offensive myself. But, I mean, it's really quite, quite different from what Robert Jackson had in mind.  

Paras: I'd like to pivot if I could to some of the practical questions that Judge Chutkan will have to deal with when the case is remanded. And it seems to me like the analytical heat at the trial court level will be around presumptive immunity. And Roberts lays out what we can glean as the test on page 14 of the majority opinion, where a prosecution would have to pose no danger of intrusion on the authority and functions of the executive branch. So first, is that a workable standard? And I'm particularly interested in Mary on what you think around some of Jack Smith's strategy here.

 So, there's been a lot written about the prospect of a mini trial, which could be an evidentiary hearing that tries to air out Donald Trump's conduct. There's also been a lot written about slimming to win, by which Jack Smith might narrow some of the charges in order to get the ones that are possibly most clearly on official conduct. How should we be thinking about what might happen next, and some of the strategic choices that have to occur.

Marty: Mary, before you answer that, because I want to know what you think about that, too. But I want to complicate it a little bit further. And say, before we even get to that question, I think the first question is going to be what counts is personal or unofficial conduct versus official conduct? Because I think what Jack Smith is going to do in the first instance is argue that virtually all of the indictment but for the DOJ part and the Pence part — which I'll talk to you about in a second — are personal and therefore aren't subject to what Paras is just saying. 

Steve: And citing Barrett's concurrence, which says much the same thing. 

Marty: It says the same thing. Now the problem with it, and that's fine, and in some respects, Robert seems to cite the DC Circuit's opinion, the Sri Srinivasan and Greg Katsas opinion in Blassingame favorably, he doesn't appear to be deviating from what the Court of Appeals did there and what a different district court judges dealing with in the civil case against Trump for his Ellipse speech on January 6, in the in that district. But the court, first of all, says that the discussions with Mike Pence were official, not personal. It holds that as a holding, which I think is just simply wrong. And secondly, calls into question whether all the rest of the indictment is personal versus official. Because it seems at some point to say, when the President is talking to others, the public, state officials, the Vice President about, “the President's view of the public good”, which in this case means electing Donald Trump is in the public good, that it would come on the official side of the line. Now, that's not a holding of the court. But I think the music of the opinion is, this court is going to hold that a hell of a lot of things that are clearly unofficial, come within the outer perimeter of the President's official conduct. 

So, the first challenge for Jack Smith is to argue that these are not everything else is personal, not official. Then you get to if it is official, does it meet that test? I'm interested in what Mary has to say, I think he's going to fight to say that under these facts, under these allegations, it won't have even the slightest impact on the workings of the executive branch. And that may carry the day below. But boy, the smoke signals from the majority of the court about what happens if and when this ever gets back to them.

Mary: So, I wish I had great answers to this. I think this is very complicated. I totally agree, Marty, that the first question is, can we separate purely personal from official, but that's very complicated, too, because of the way that the court has hamstrung the government and the court, as we talked at the very opening, by requiring that they not consider motive when making the decision about whether things are official or unofficial. And so much of what is in the indictment, it relies on some in some part, on the corrupt intent of Mr. Trump and those around him, in taking the various actions that he took, including pressuring his vice president, pressuring state officials, pressuring state legislators, and his speech at the Ellipse, and his tweets, and his other encouragement of the attack on the Capitol. And so I actually think that particular part of the majority, even though it's getting mentioned by everyone, but I think it's huge. 

I think it's just enormous. And it's also so, I don't know if I can say this on the podcast, bass-ackwards. Like criminal law depends on mens rea, it depends on intent. And they're saying, when you're deciding for purposes of criminal prosecution what's official and what's unofficial, you have to take out of the mix the very thing that forms the core of criminal prosecutions. It does, it does not make any sense. And I think it really is kneecapping, not just the government, but the trial judge and every lower court current. 

Marty: Mary, can I ask you this? And I'm really interesting. But all three of you think everybody on the cast? I'm not so sure that motive based evidence is completely out in in the following respect. I don't know whether motive is the right word for it. The court does, in response to Barrett's complaint, suggest that the content and context of what happens and what the facts are, can be taken into account in deciding whether it is official or personal. And so, for instance, when Donald Trump says to Georgia State officials, I need you to find 11,780 votes, the Supreme Court seems to think there's a hard question there about whether that's personal or official. Whether these talking about his understanding of the public good, or he's just trying to win his own election. I mean, that ought to be the easiest case imaginable. They seem to think it needs some adjudication below. You can take that into account, Mary, they clearly don't want you to be able to take into account, I guess, confidential internal executive branch communications. But communications with those outside the executive branch can be taken into account, whether motive is the right word. 

Steve: But Marty, but then why not just peg that to executive privilege? I mean, right? Why, like, why create a whole new category, as opposed to just saying those communications that under our existing cases are protected by executive privilege are still protected by executive privilege, like, there's no attempt, in the opinion, to explain why this is necessary beyond what executive privilege would already have accomplished. And if there was an open question about whether executive privilege might give way in a criminal case, they could have just said it won't. Right as opposed to this. 

Marty: Although that would be, I mean, the irony is, although he wants to wrap himself in the Nixon tapes case, there which recognized executive privilege, it was overcome for a criminal case. You know.  

Steve: Not against, not against the precedent, right. But I guess Marty, the problem again, to me, and this is something that a lot of folks have brought up in the last couple days. Barrett's very specific about how she parses the indictment with regard to the official act, unofficial act distinction. Sotomayor is very specific about the example she thinks are on the wrong side of the line in the majority opinion. Roberts had any number of opportunities to respond to either of them, and say; I agree with Barrett here, I disagree with Sotomayor here. And he didn't, right. And so, the problem is that like smart lawyers, and even not so smart lawyers, can pick apart this opinion to do to serve whatever purposes they want it to serve. 

Mary: I agree with all of that. I do think, though, just to get back, just to practicality here. Marty, you raise a good point. I do think one option for Jack Smith, whether we're talking about the admissibility of official acts, evidence to prove criminality of person of what has been decided to be personal and this issue of not considering, not inquiring into the President's motives when defining official and unofficial conduct. I think there's an argument and we know there's an argument with respect to evidence that things that are on the public record can still be used. So, I think that if I were Jack Smith, I would be taking that same approach to what's prohibited in terms of inquiry into motive and say, the only thing that the majority here is prohibiting is — and this goes to Steve's point — that things that we don't need them to prohibit, because he's got executive privilege or already as a doctrine around that they can apply that, but it doesn't mean we can't use the substance of the tweets, use the substance of the call that has now been made public. It's on the public record that call with Brad Raffensperger. 

Maybe you don't get to go separately inquire of Mark Meadows about who was on that call, what was Trump saying to you when he covered up the phone and during the call with Brad Raffensperger, but you can use what's in that call. I don't know, the majority isn't crystal clear there. But the word is, courts may not inquire into the president’s motives and that does seem like inquire means something qualitatively different than just take what's there on the record. 

Marty: I agree. I just wonder whether they're not saying something similar to what Judge Srinivasan said in Blassingame though, which is the test for dividing the line between official and non-official for Fitzgerald and now Trump purposes, for all these immunity purposes, does not depend on a subjective motive of the person acting. Was this human being more interested in getting elected or more interested in governing the United States? That in some respects is an objective test, but an objective test-based on the things that were done, right. Like what would an objective observer think Donald Trump was doing acting as the president or acting as someone trying to overturn the electoral results, when he's asking to find 11,780 votes, or when in his ellipse speech he's talking about how we won the election, we need to do what it what it takes to win it back. 

Those to me seem like very easy cases, not about what his subjective motive was, but how anyone would understand these communications, which is this is a man trying to advance his own electoral interests, not acting on behalf of the United States. He doesn't recognize the distinction between those two things. He thinks that the interests of the United States are coterminous with him holding power. And that's why this scary reference to his views of the public good being the test in the Roberts opinion gives me great pause, right. That's just an incredibly capacious articulation of the line, right. Because the four of us right now we're talking about what we think is in the public goods, but it doesn't make it official conduct in any way. Everyone talks about what they think is in the public good.

Mary: I think even the chief didn't even really give up that in his pure capacity as a candidate that that would mean it's personal. He says that's a consideration, right, but not necessarily dispositive. So, the question becomes, I mean, it just seems like at every turn, what he starts to give he then takes away in the next breath. And I think it's going to be tough on remand. But if I were Jack Smith, I would be slimming. I would be going through the indictment. I'd really be trying to apply the Barrett partial concurrence and craft a proposal for the court that is very specific as to what particular conduct the government thinks meets the personal standard and what other conduct they would want to introduce into evidence, even if potentially it might be official acts, and try to make an argument for how that's rebutted. And try to limit what she has to deal with just because of the timing of things and to try to get to the point of maybe where there's something that can move forward. Now, granted, we're already so late, briefing is going to take a while, arguments are going to take a while. I'm not harboring any kind of idea that this could ever happen before the election. 

There's now some news reporting, I don't know if it's legitimate or not about, the fact that the government might be thinking about continuing these prosecutions all the way up until January 20th. Legally, I think they can whether there'll be arguments about that, big arguments about that. So, I don't know, maybe timing is not the biggest thing, but that's still what I'd be trying to do if I were him, and really just kind of follow the inquiry that Barrett sets forth. I know she's not in the majority on some of her approach. I mean, I know her approach didn't command the other justices in the majority, but it's a workable, applicable test. And so, I think I'd be trying to follow that if I were him. And then see, I think if there are, I think there are things that perhaps when they go back up, they can win on.  

Marty: Okay, I’ll ask you guys this. I'm glad you mentioned go back up. I think John Roberts probably thinks they, the Supreme Court will never see this again, we'll never have to resolve these questions, right. So obviously if Donald Trump is elected President, at a minimum, the prosecution stops dead in its tracks on January 20, for four years, and probably his Attorney General tries to withdraw the charges. And if Donald Trump loses the election, and the prosecution then goes forward to January 20 and beyond, maybe it gets back to the Supreme Court after Chutkan in the DC Circuit have tried to parse all of this. But I suspect there's not going to be a lot of appetite by the Justices. And who knows, it depends on how it plays out, right, how the trial were to play out and that kind of thing. But I don't know that the Justices will be all that eager to be parsing these questions, again, after a trial, particularly if the Mar-a-Lago case is also completed by then. Which, which, by the way, I don't know, if.

Mary: I don't think we're talking about after a trial. I think we're talking about pre-trial. 

Marty: Oh, yes, that's, that's right. What does seem clear, including in the Barrett opinion and what I personally agree with is that these, I guess these questions ought to be resolved before trial. And that was very interesting. I'm sympathetic to that view. So, I guess that's right, but I don't think this should affect the Mar-a-Lago case. It shouldn't affect the New York case, obviously. But those arguments are already being raised. I don't think this is ever going to get back to the Supreme Court. But of course, that depends on a lot of variables. I'm just curious what you guys think. 

Ryan: So, I think it could get back to the Supreme Court on the interlocutory appeal and Trump's not reelected. But I guess, I have one second order question, which is what I just said doesn't apply to evidentiary rulings, right. It shouldn't be that just applies to whether or not he's charged for certain conduct. So, I do have one kind of a question, which is, what if Jack Smith says I'm not charging for the Mike Pence scheme, but I do want to use it as evidence. Is that subject to an interlocutory appeal? 

Mary: Normally, I'd say it wouldn't be, but I think this majority opinion, it's not clear but, sort of invites it. The question would be, are they right or wrong on if it's if it's an official act, and that really should, I guess is probably what you're going to say Steve, just be something that the government takes the risk and after trial, if they get a conviction, he can appeal. But no, I think Ryan is asking an even nerdier question, which is insofar as it's an evidentiary dispute, and not a dispute about whether the indictment can be sustained, right. The Supreme Court has said over and over and over again, as recently as what Mohawk Industries v Carpenter in 2009, that evidentiary disputes are not subject to interlocutory appeals. Now, would they make a brand new exception for presidential evidentiary disputes? Sure. Could you use mandamus, even in this circumstance in which you couldn't take a statutory appeal? 

Sure. But even answering the how do we hear this interlocutory appeal question would itself take time. So, I sort of end up where Marty was, which is the real sort of bottom line here is that the short term implications of this is going to be to sort of slow everything down to the point where nothing was done by January 20, at which point it either won't matter or it'll matter a lot, and it will be moot. 

Ryan: Can we pivot just here at the end to any implications for the Manhattan case and potentially the Florida case? So, the Manhattan case, as we're recording this, is front and center. It's the only conviction against former President Trump, and the issue has been raised by his defense team that the Supreme Court opinion should overturn his conviction. Here's the question I guess I have about the way in which we interpret the breadth or narrowness of the court's holding with respect to the use of evidence that would be based on an immune official action. So, let me sharpen the question the following way. I think the strongest argument that the Trump team has is that very significant testimony from Hope Hicks could be subject to the immunity claim. Why? 

Because she — first it’s significant, this is where she cries in the in her testimony and many observers think she's crying because she has basically incriminated Donald Trump at that point. She's saying that in February of 2018, she is the White House Director of Communications, and the President of the United States is communicating with her about a scandal that is breaking out in New York Times with respect to the hush money, and she's in her role, you might say, operating as crisis management for the White House. So, the question is assuming that Donald Trump's lawyers have not waived this, which actually think that they have, we should moot all of it. But assuming it's not waived, is the holding of this US Supreme Court opinion saying that there is in fact a plausible claim that that is evidence derived from official conduct of the President and therefore cannot be used in a criminal prosecution of the president? Or here's my push towards a different narrower interpretation of the holding — one way you can think of it more narrowly — no, because it's not as though the Manhattan DA is criminalizing or trying to criminalize that communication between Hope Hicks and the president. And what is the court saying, it's narrower, they're not saying you can't use any of it as evidence. 

They're saying the prosecutor cannot achieve indirectly, what the prosecutor is prohibited from achieving directly. What is the prosecutor prohibited from achieving directly — imposing criminal liability on the president for that action. That's not what's going on. They're not trying to criminalize the exchange with Hope Hicks, is that one way of reading it, that it's narrower than one might otherwise interpret the holding to be or there are other ways in which you think about the implications if this argument has not been waived? 

Mary: So, Ryan, I think the mere fact that it's a conversation with a White House employee, his Communication Director who's responsible for crisis management, can't be what dictates whether this was official act, and you use the word derived, and I think that tells a lot, right, because as you explained, it's not as though 

DA Bragg was charging that conversation. And even though again, official acts evidence are under this ruling of the Supreme Court inadmissible to prove up the criminality of personal conduct, the content of the conversation that Hope Hicks has, is all about this — what I think is ,I mean, I'll say indisputably, although obviously Trump's attorneys are disputing it — indisputably personal conduct, the payment, the reimbursement of a personal lawyer for payments of hush money to a porn star made during the campaign to avoid damaging information to the candidate from coming out publicly. I mean, that just seems to be quintessentially personal. And so, this the fact that later she's at the White House.

Steve: I don't know, I don't know, Mary, that's those are conversations about his view of the public good, which is that it should, it should remain quiet. 

Mary: And I also think that, you know, some I've heard some people talking about sort of things that happened in the Oval Office or at the White House. And clearly there's nothing in the majority that says just because something happens, a conversation takes place, or a check is signed in the White House certainly is not the test, and that's not anywhere there. So, my view is that this won't have an impact on the Manhattan verdicts, even if it gets passed waiver as you've indicated. I also think with respect to mark Mara Lago right the indictment charges conduct after the Mr. Trump was no longer president. I mean, he's going to try to tie it back to decisions he made about what he designated as personal or not personal when he was packing up or had other people packing up the White House, but that is something that is really not what's charged here. And it's something where that's a subject to separate, which was a whole another podcast, separate legal analysis on this Presidential Records Act designations and whether that has any validity to any of the defense's that Mr. Trump wants to raise in Mar-a-Lago. 

Ryan: Marty, do you want to say anything about any implications you think for failure? 

Marty: Yeah, it's just one just one thing is as a predictive matter. In his separate concurrence, Justice Thomas goes out of his way to give credence to this — what ought to be an extraordinarily frivolous argument — that Jack Smith was not appointed in a lawful manner. This is an argument that former President Trump has made in the Mar-a-Lago case, but not in the January 6 case in the Southern District of Florida and Judge Cannon just held in all day hearing on this question. We have of lot of material on Just Security for readers that we can point you to on this question when it came up during the Bob Muller appointment case. I think this ought to be an argument that Judge Cannon in the 11th Circuit and the Supreme Court rejected out of hand, for reasons that I won't get into here. I think it really amounts mostly to a question of whether Congress has authorized the Attorney General to create an Office of Special Counsel for a particular investigation. And I think that's a very, very easy question. And in any event, a question that has been answered for well over 100 years, because that's Attorneys General have been doing it for over 100 years, and Congress has never said anything to suggest otherwise. And the Supreme Court, in the Nixon tapes case, stated quite plainly that, of course, Congress had conferred this authority on the Attorney General. So, it ought to be an easy question. 

But I do believe that the fact that Justice Thomas spent many pages giving credence to this argument that former Attorneys General Meese and Mukasey have raised in, and so has former President Trump, in Florida makes it more likely than it was otherwise that Judge Cannon will hold that Smith is impermissibly appointed. I think the odds are still that she won't make that holding, but I think the odds have increased about from increased by virtue of the Thomas opinion. And so that, if she does hold that reason, if she doesn't, I think Trump will, will appeal that to the 11th Circuit. And maybe they'll think that that deserves interlocutory consideration that will probably slow down in the Mara Lago case, as well. So, I do, I'm just predicting that that will happen. Maybe we'll do some follow up posts on the merits of that question on the blog. 

Ryan: I just want to thank everybody so much for making the time out of your incredibly busy schedules and for quite honestly, enlightening us all. And I'm going to be listening to this over again, because I've learned so much and want to learn again from listening to it more closely. I really appreciate the conversation. 

Steve: Thank you for having me. 

Mary: Thanks for having us, Ryan. 

Marty: Thank you, Ryan, and thanks Paras for putting this together.

Paras: This episode was co-hosted and produced by me, Paras Shah, and Ryan Goodman with help from Audrey Balliette and Harrison Blank. 

Special thanks to Marty Lederman, Mary McCord, and Steve Vladeck. 

You can read all of Just Security’s coverage of democracy, the Supreme Court, and the Trump trials on our website. If you enjoyed this episode, please give us a five-star rating on Apple Podcasts or wherever you listen.

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