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Supreme Court Rules Trump Entitled To Some Immunity; Supreme Court: Trump Entitled To Limited Immunity From Prosecution In January 6 Case. Aired 10-11a ET
Aired July 01, 2024 - 10:00:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
(COMMERCIAL BREAK)
[10:00:35]
BECKY ANDERSON, CNN INTERNATIONAL ANCHOR: Well, hello and welcome to our second hour of CONNECT THE WORLD with me Becky Anderson live from Abu Dhabi
for you where it is 6:00 in the evening.
JIM SCIUTTO, CNN CHIEF NATIONAL SECURITY CORRESPONDENT: I'm Jim Sciutto in Washington D.C. where it's 10:00 in the morning.
The attention this hour on the U.S. Supreme Court. Any minute now, we are expecting what is a crucial ruling on not just Donald Trump's immunity, but
a president's immunity that could have enormous impact on this year's presidential election. And of course, the powers of the presidency itself.
It is a ruling that could very well redefine those powers possible outcomes include granting the former president full immunity from criminal
prosecution, effectively ending the election subversion case against him, to allowing him some degree of immunity to rejecting his immunity claim
outright, therefore thereby green lighting the criminal case against him for attempting to overturn the election. Here's what Trump had to say about
it back in January.
(BEGIN VIDEO CLIP)
DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES: You have to have guaranteed immunity for a president. Otherwise, the president is not going
to be able to function. They're not going to move. Harry Truman would not have done -- Harry Truman would not have done Hiroshima and Nagasaki.
You know, you have to allow a president to do his job, they'll make decisions.
(END VIDEO CLIP)
SCIUTTO: Harry Truman did not attempt to overturn the election. Attorneys on both sides of the case often starkly differing views to the justices
during the oral arguments in this case back in April.
(BEGIN VIDEO CLIP)
JOHN SAUER, DONALD TRUMP'S ATTORNEY: If a president can be charged, put on trial and imprisoned for his most controversial decisions as soon as he
leaves office, that looming threat will distort the president's decision making precisely when bold and fearless action is most needed.
MICHAEL DREEBEN, ATTORNEY FOR SPECIAL COUNSEL JACK SMITH: His novel theory would immunize former presidents for criminal liability for bribery,
treason, sedition, murder, and here conspiring to use fraud to overturn the results of an election and perpetuate himself in power.
(END VIDEO CLIP)
SCIUTTO: That line of thinking was echoed by one of the justices in the Supreme Court's liberal wing.
(BEGIN VIDEO CLIP)
KETANJI BROWN JACKSON, ASSOCIATE JUSTICE OF THE SUPREME COURT: If someone with those kinds of powers, the most powerful person in the world, with the
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.
(END VIDEO CLIP)
SCIUTTO: The conservative justice has pushed back on that, Samuel Alito, asked if the prospect of a president facing criminal prosecution after
leaving office could itself destabilize democracy.
Whatever that decision is, we have a team of reporters and analysts to break it down for you. Right now, I'm joined by Jeffrey Rosen, president
CEO of the National Constitution Center, also a professor at George Washington University School of Law. Jeff Swartz, former judge in Miami-
Dade County, Florida and professor at Thomas M. Cooley Law School, and Julian Zelizer, CNN political analyst and professor at Princeton
University.
We should note that these decisions could come in anytime in the next several minutes. As they do, we will bring them to you right away.
Jeffrey Rosen, if you could put a little more meat on the bone of the three options that the court has here as we understand them, one to determine
absolute immunity for any acts while president. The middle option to define official acts determined that those covered by the indictment were not
official, so the prosecution goes forward.
But there's this third option where they could in effect say some are official, some are not, some there's immunity, some there is not.
JEFFREY ROSEN, PROFESSOR, GEORGE WASHINGTON UNIVERSITY SCHOOL OF LAW: That's exactly right. And the central question will be will they establish
a test for the Supreme Court or lower courts to apply in deciding whether or not an action is official?
The case of bribery is a good one, you don't know in advance whether or not it was part of President Trump's official acts to seek bribes, and
therefore how do you determine whether or not it's official?
I think no one expects total immunity by any means. But the question is, how will you establish whether or not an act was official? And that's going
to be the central question in this Supreme Court decision.
SCIUTTO: Jeff Swartz, one of the most remarkable moments from those arguments was when Justice Sotomayor asked if immunity would cover even a
president assassinating a political opponent. And the president's lawyer, the former president's lawyer, Trump's lawyer answered, well, yes, that
could well be an official act and remarkable given that that idea was dismissed quite quickly by a district court.
[10:05:22]
Is that where we are? Or is the court most likely to at least determine that some things are out of the official acts of a president.
JEFF SWARTZ, FORMER MIAMI-DADE COUNTY COURT JUDGE: One can only hope that whoever is writing this opinion and the people that are considering it go
all the way back to the Constitutional Convention. And they look at a guy named James Wilson, who is known as the Forgotten founding father, who
signed the Declaration of Independence and helped draft the Constitution in particular, Article Two, and he made it abundantly clear that the President
of the United States does not enjoy any immunities or privileges that are not given to ordinary citizens. The idea that the President of the United
States could literally commit murder of a fellow citizen, just based upon his belief of a political nature is just absurd.
And how any lawyer who really believes in the Constitution could say that just boggles my mind. And I think it boggled the minds of many people. I
don't even think the conservative justices would even think about going that far. If they do, they're just anti-constitutional.
SCIUTTO: The Supreme Court just dropped one decision, not the immunity decision. This one relates to truck stop case Federal Reserve, and involves
agency regulations. These decisions, we should notice, we're following this, as I understand it come out every five minutes or so. So, clock
ticking again till 10:00 past the hour.
Julian Zelizer, Neil Gorsuch justice, he said, that we're writing a rule for the ages here. And we should make that clear, should we not that this
relates not just to Trump in this case, but to really the court writing, or attempting to we imagined to write some -- write a decision here that
further defines what's immune and what's not?
JULIAN ZELIZER, CNN POLITICAL ANALYST: I think that's right. I mean, there's two levels. One is the impact on the former president, the election
and what happens in the next few months.
But the second is about presidential power. And we've had a gradual but steady expansion of presidential power since the early 20th century.
There's been moments when it's checked, but overall, it keeps getting stronger.
And I think these decisions could further strengthen the power of the presidency if immunity is granted in different ways, and that lasts whether
you have a Democrat or a Republican in the White House, and it will last for decades.
SCIUTTO: Jeffrey Rosen, it's been noted frequently that this is the first time the High Court has weighed in on whether a president can be criminally
prosecuted for actions he took while in office. Why is that? nearly 250 years into this country's history.
ROSEN: Perhaps because no president has committed any acts that appear criminal in any way. And the founders are so insistent that the president
is not above the law.
It was so important that during the Watergate case, the court unanimously rejected the idea that the president is completely immune from subpoena
related to Watergate. And the reason that this case is arising is because President Trump tried to overturn the election, just as he was leaving
office, and the line between his official and unofficial acts were blurred for the first time.
But what's so striking about this case is before the oral argument, no one expected any broad immunity to exist, because the court had so repeatedly
said that the president is not above the law. But all of a sudden, the question of distinguishing between official and unofficial acts is present.
The bottom line is, no one wants a political rival to be able to prosecute a president because they disagree with his policy decisions, and want to
make that criminal. And that's what the court is struggling with, how to distinguish between official and unofficial acts so you don't have that
kind of political prosecutions.
But it's hugely significant because a broad immunity argument could mean that, you know, a president could engage in criminal activity without being
held accountable. And that's why everyone expects a kind of nuanced balancing test that will allow presidents to be prosecuted for stuff that
is completely outside of their official actions.
SCIUTTO: Jeff Swartz if the Supreme Court decides that a president is immune for some official acts, and then directs the district court to then
determine which acts in particular in this indictment are official and which are not. What does that mean as a practical matter for the current
prosecution under the special counsels indictment of Trump?
[10:10:09]
SWARTZ: I think that would depend upon what route Jack Smith decides to follow. There is if it comes out the way some people are thinking this
opinion will come out.
I think Mr. Smith has the opportunity to file a superseding indictment, removing what would be deemed to be the offending portions of his
indictment, that is taking out certain overt acts from the conspiracy count, and introducing them almost solely as evidence under Rule 404(b).
And thus, there are those things not being in the indictment. It cannot be argued that the president is being charged with those things, although they
may be evidence of his criminality.
So, I think there is a way for that indictment to go forward, or at least that case to go forward based upon a superseding indictment.
I have to assume that Mr. Smith has thought of all the alternatives and has a plan depending upon what comes out.
SCIUTTO: To reiterate, we are waiting any minute now a decision from the Supreme Court, not just on President Trump's immunity, but also a
president's immunity, what acts are official, which are not, how far that immunity extends and we'll bring that decision which we expect any minute
now once it comes.
Julian Zelizer, would an originalist as the conservatives on this court say they , I know there have been some criticisms about whether they're
originalist at times and not in others. Would an originalist reading of the Constitution grant a president virtually limitless immunity, given the way
the founders saw power at that time, and, of course, they were writing a document to free the U.S. from the rule of a king.
ZELIZER: I mean, it seems to be the opposite. The whole premise of the founding was not to give unlimited power to any single part of government,
the president or otherwise. And we didn't set up a system with a king, we set up a system with a separation of power, we created a mechanism for
Congress to impeach a president.
So, the idea that there would be unbound power written into the Constitution seems antithetical to what is called originalism, although I
think even that term is misleading.
But no, that is not the premise of this government. And I think that's why so many legal experts are at least assuming the blanket immunity that the
former President is seeking won't be granted.
SCIUTTO: Jeffrey Rosen, as you were watching and listening to -- well, I should say listening to the oral arguments, we didn't have pictures, we did
have sound from inside that room. Did you sense where the split in this court was on this decision?
And again, it's a tough question to ask, and you're going to have the answer within minutes here. But did you sense do we get an indication from
oral arguments as to how the court was going to go?
ROSEN: It really is tough, I wouldn't presume to predict, but there certainly was more interest in creating a broad pragmatic immunity among
the most conservative justices, in particular, Justice Alito, who asked a really surprising hypothetical about, do we want -- you know, wouldn't a
future president refuse to leave office if he was afraid of prosecution. And Justice Gorsuch in particular, who seemed interested in creating a
broad immunity argument.
And not only the more liberal justices, but even Justice Barrett, who was focusing much more pragmatically on separating out the official from the
unofficial act.
So, for all those reasons, although predictions are dangerous idea, a very sweeping broad blanket immunity seems unlikely to get five justices. But
it's all -- it's all in the details and the question of whether there'll be a majority for a more nuanced balancing test, whether they'll send it back
to the lower courts and how broad that balancing test will be. We'll find out in a few minutes.
SCIUTTO: You know, this most -- this case that they did released today again, against regarding government regulations was again, a 6-3 decision
conservatives versus the liberal wings.
And Jeff Swartz, we've seen so many decisions like that, and, you know, a traditionalist on this court and you've heard that and Roberts is believed
to be one of them, is that they don't want the court to seem that if you change the bodies, then the law of the land changes, right? If you change,
you got your conservatives appointed by Republicans and liberals appointed by Democrats, if you do so. And you're just -- then it takes away to some
degree the credibility of the court of their decisions.
What does that mean for Roberts' leadership to the court that that's what we're seeing, frankly, play out here? Whether you agree with the decisions
or not, you know, you could debate that but in terms of how it's lined up, I mean, it's -- you know, you've changed the bodies, and the law of the
land has changed in dramatic ways.
SWARTZ: That the way Roberts looks at it. I think that he has lost control of this court to a great extent. I
don't think that he really leads. I think that he -- it's like herding cats trying to find majorities that will not overstep, majorities that will not
go so far as to change the basic way that government runs, although we saw that last week.
[10:15:22]
I'm not sure exactly where they are. I have propounded that I think we have a 3-3-3 court. I think we have ultra liberals, I think we have ultra
conservatives, and I think there are people that are developing in the middle that may be behind Roberts to try to create majorities where they
can.
I think Justice Barrett has shown that she is in fact establishing an independent course of her own. I think Justice Kavanaugh has done that a
couple of times.
And so, there seems to be this triumvirate of groups within the court, which is why I kind of felt that the third course that this court could
find that it could be a plurality opinion of sorts based upon this particular case, without actually setting what Gorsuch says is an opinion
or rule for the ages.
It may be nothing more than a decision on the case involving Donald Trump. And that could very possibly happen. Although, it unlikely as it may be, it
is still possible that it could happen.
SCIUTTO: Well, it's notable when you think back to the 2020 -- 22,000 election decision, right? They made it based on that election and said, no
precedent to be -- to be set there.
Julian , John Roberts has often staked his reputation on being an institutionalist with this court, wanting to preserve the reputation and
the respect and the credibility of the institution.
I want to play some sound from him as it relates to this case going back to oral arguments, have a listen.
(BEGIN VIDEO CLIP)
JOHN ROBERTS, SUPREME COURT CHIEF JUSTICE: As I read, it says simply a former president can be prosecuted because he's being prosecuted. Why
should we either send it back to the Court of Appeals or issue an opinion making clear that that's not the law?
(END VIDEO CLIP)
SCIUTTO: Does that, Julian, give an indication as to where he might be leaning there, a path forward?
ZELIZER: I can't read the tea leaves from the comment. You would imagine that, given his reputation, and given how sometimes he has worked to try to
avoid that 6-3 split, defining everything that he would be on the partial middle-way side that my colleagues have both talking about, spoken about.
He does realize this is also about the court, not just the presidency, the famous case with Richard Nixon and the Watergate tapes was unanimous. And
that was important. The unanimity, because it showed the court united.
If this comes with the same ideological split, I think it will be another blow to what Roberts has attempted to preserve, the reputation of the
institution, which is fast declining in the last few years.
SCIUTTO: Speaking of that reputation, Jeffrey Rosen, there was a justice decide in this case, whose wife was implicated in the attempts to overturn
the election. They're not criminally and that, of course, Jeffrey Rosen, is Justice Thomas's wife, should he be deciding this case? Or helping decide
this case?
ROSEN: Well, whatever I or anyone else thinks, there's no mechanism at the court for disqualifying him if he doesn't want to disqualify himself.
And after all of the ethics discussions that the court has had recently, you know, Chief Justice Roberts is concerned about this. It's obvious that
because the justices don't want to rule on each other's decision to recuse, there is no enforcement mechanism beyond the ethics office of the court
itself, which can make recommendations but can't force anyone to recuse themselves.
So, that's just a bind for the court, because it's very concerned about the legitimacy crisis that's coming from these recusal debates. But it has no
solution that it's going to embrace. And that's why for the foreseeable future, each justices is going to decide for themselves and Justice Thomas,
Justice Alito, just are not going to recuse.
SCIUTTO: That much as we've seen with the financial questions, right, in terms of money, accepted trips, etcetera.
I want to go to our senior crime and justice reporter Katelyn Polantz who's at the court. Can you explain to us, Katelyn, exactly what's happening
right now because they post a decision, then there were comments from the court and they don't post the next one until they finish reading the
decision. Where do we stand right now in the process of these decisions coming out?
KATELYN POLANTZ, CNN SENIOR CRIME AND JUSTICE REPORTER: Jim, they're reading their first dissents concurrences the opinion of a case to
challenge the Federal Reserve about the power of regulatory agencies. That was the first one today, there's another decision or a couple of decisions
depending on how they split it related to social media power, those companies. That is what we could expect coming next, but we just don't know
exactly how the next few minutes are going to be playing out.
[10:20:02]
We do know that Trump v. U.S. or the case of the United States versus Donald Trump as a criminal defendant, that is so likely to be decided this
morning, as we've been talking.
We're going to be watching for so much here, Jim. But one thing, you just played that question from Justice Roberts, there's another questioning that
had happened during the oral arguments that I have wondered for weeks, is this going to be how we should be looking for an opinion to come down?
Where Justice Amy Coney Barrett was asking Donald Trump's attorneys at the oral arguments a couple of months ago, is it right that you can see that
private actions, even if a person is president could provide -- would not be immune from criminal prosecution?
And Donald Trump's lawyers conceded that, they say, yes, there are some things that would be private acts that would not be protected. That is
potentially where the Supreme Court has to figure things out today. And they could take the opening that Trump's attorneys gave them, draw that
line and say, well, his discussions with the Justice Department may not be but we just don't know how this is going to go. It could go so many ways.
It could be hard to figure out exactly how the court is setting this up until we read the full opinion and look at it in close detail.
SCIUTTO: Right.
POLANTZ: And then Jim, the other thing, timing, that is going to be a huge question that we may not have an answer for immediately as well. Because if
the Supreme Court sends this back down to the lower courts does not give Donald Trump the broad sweeping total immunity that he was initially
seeking here. That could mean that there could be more appeal.
SCIUTTO: OK, standby Katelyn -- standby Katelyn, because we do have an update. That's not the immunity ruling. But we do understand we have a
ruling on social media.
Now, this case related to freedom of speech and effect with laws regulating social media. The opinion as I understand it, written by Justin -- Justice
Kagan, and its unanimous decision, which is rare on this court, I think we can say with confidence. Can you explain just briefly, Katelyn, this case,
and what exactly it covered?
POLANTZ: Yes, this case is about net choice. It is one of these cases about social media and the power of states for moderating social media. We have
seen a couple of things like this before the court and they are grappling with how far governments can step in on this.
I haven't had a chance to see exactly what the justices are saying yet on this. But as soon as I get a little bit more from them, I'll be happy to
give you a little bit more of exactly where the court is coming down on it.
But Jim, this is one of those cases that it's going to be important going forward anytime there's a case about technology and social media.
It matters, ultimately, for the country and how the court is setting up the -- what you call jurisprudence around the internet, something they've been
exploring for many years.
But really, today is going to be -- the defining thing of the court today is going to be what they say in this Trump immunity case, which could come
down in a couple of minutes.
SCIUTTO: No question. It's going to come down today. We know that. CNN politics Senior Reporter Stephen Collinson joins me now, explain the
politics of this case, and just how broad. And listen, it is beyond the politics, right, because it relates not just to Trump, who's running for
office again, and his criminal cases, but it relates to the power of the presidency in this country.
STEPHEN COLLINSON, CNN POLITICS SENIOR REPORTER: That's exactly right, Jim, this is a case that is interesting in a number of ways, both because of its
implications for the Trump legal morass, how Trump would potentially act in a second term. And for the decades and the centuries ahead, in terms of
whether a future president might see that Trump could get away with interfering in the result of an election and might try something of the
same thing.
So, there are many different ramifications to this decision. I think it was very interesting that the former president was talking about this case this
morning. He was basically saying that it had more relevance to what might happen to President Joe Biden, if he lost the next election, then it would
have to him that seems to be a rather veiled reference to Trump's insistence and the dark reference that he would seek to use presidential
power to go after his enemies, and that anything that a president did in office might be fair game. That's clearly a perversion of all the legal
arguments in this case, but you can see already how Trump is trying to use it.
SCIUTTO: Let's play that sound of Trump as he made that possibly veiled threat regarding the actions following the decision on this case. Let's
have a listen. I want to get your thoughts on the other side.
(BEGIN VIDEO CLIP)
[10:25:05]
TRUMP: The immunity statement that's coming out, as they say, on Sunday on Monday, that it's going to be very interesting to see what happens. But I
think it has a bigger impact on Joe Biden than it has on me, actually.
(END VIDEO CLIP)
SCIUTTO: To your point, I mean, he could also be saying simply, even if we want to serve the best intentions here that it relates to all presidents,
but to your point, the former president has repeatedly said, hinted, insinuated that he might get back at his political opponents with the
powers of the office if he were to be reelected.
COLLINSON: Sure, and he repeatedly said when he was in office that he believes that the Constitution gave him almost uncheckable power, which is
clearly not true.
But that is something that Trump really does believe the presidency is or should be. I think it's been not noticed quite so much when people are
talking about this case is that potentially one of the reasons why the justices took it up is because they are drawing the limits of where
immunity might come down as it relates to the office of the presidency, and that is something that can be tested as soon as next year if Trump wins the
election.
SCIUTTO: No question. We should note that the opinions released so far, by our count, if I have this right, I'm going to go back to my legal panel,
that all that remains now is the immunity question back with Jeffrey Rosen, Jeff Swartz, Julian Zelizer, just briefly as we wait for the immediate
decision, perhaps in the next couple of minutes here, this social media click case, the net choice case, Jeffrey Rosen, unanimous, written by
Kagan, of course, justice from the liberal wing. What's the significance of this case?
ROSEN: This is an example of kicking the can down the road. Justice Kagan and her unanimous opinions said that the lower courts have not examined the
breadth of the facial challenge. In other words, it hadn't looked at all the ways that the Texas and Florida bans on social media companies removing
speech might apply across the platform.
So, they ask the lower courts to balance the full range of the applications against the implications for free speech rights, and to make a
determination on those grounds. That's why it was unanimous. And it's not a definitive ruling one way or the other about whether or not states can
prohibit social media companies from removing speech.
SCIUTTO: Jeff Swartz, as we are now minutes away from this Supreme Court decision on not just Trump's immunity, but presidential immunity in
general, this could have enormous impact, could it not on the balance of powers among the three branches of government going forward? Could it not?
SWARTZ: It could, because it would take an effect making the president almost immune from any action other than impeachment. I think we've seen
that in today's world, there's no way you're going to get 67 votes to convict someone in the Senate unless there's a massive gain of seats by one
party or the other.
And so, therefore, stopping a president from taking actions which are criminal, which reflect upon the other two branches of government and
potential candidates just goes beyond the pale and there has to be a reining in and if there is no other reining in than this, at least there is
something.
We started doing this back in the Nixon days, I still feel that the pardon of Richard Nixon was a huge mistake. We would not be here right now if it
wasn't for that. There would have been some sort of decision and we would know where things are.
(CROSSTALK)
SCIUTTO: Jeff, Jeffery, Julian, we have the immunity decision. The immunity decision is in and we are digesting it, and it requires digestion. So, I
want to take a moment before I ask for your reactions to this decision.
The notable point you were making there, Jeff Swartz, in part was that courts power over Congress, right? We're seeing partly because of
Congress's own dysfunction but also the decisions of the court that very much changed the nation just the last couple of years going back to Dobbs
and others.
And with this one, we'll have enormous effect going forward. Again, we have the decision in, we want to read it carefully before we bring you the
headlines in the news.
But Julian, just briefly, the power of the courts in this country has been emphasized and reemphasized has not in recent months?
[10:29:53]
ZELIZER: Because of the historic nature of decisions converging with an election, because of the questions over ethics that have arisen with
Justice Thomas, and also because of the kind of implications for the balance of power that's often based on a partisan, sensually ideologically
partisan split.
All three of these have created a brew, where the court is front and center and questions about the Court are as well.
OK. Standby. Katelyn Polantz is ready. Decision is in. Katelyn, what do we know?
POLANTZ: We do have this decision now. It is from Chief Justice John Roberts. He is reading it from the bench or some of it. And it is giving
some immunity around the presidency for official acts.
There is a presumptive absolute immunity for official acts. But there is no immunity for unofficial acts. This is very much in line. But we thought the
Supreme Court may be leaning toward doing drawing lines around the presidency.
But where those lines are drawn, that's going to take us a little time to figure out, Jim, because of the depth of this. The number of pages, 119, to
read right now. And so, we are getting a little bit more information on that what this does, though, procedurally, at the very top line is it wipes
away what the D.C. Circuit had done, which said, Donald Trump doesn't get any immunity here. He is -- she should go on to trial. That is not
necessarily what is going to happen next, there's going to need to be more proceedings, and this will go back down through the lower courts to
interpret in the coming days.
SCIUTTO: The Roberts writing for the majority here says, "The nature of presidential power entitles a former president to absolute immunity from
criminal prosecution for actions within his conclusive and preclusive constitutional authority. He is entitled to at least, presumptive immunity
from prosecution for all his official acts. There is no immunity for unofficial acts.
If I could bring our panel back. Jeffrey Rosen, I believe you're there. Get a lawyer's mind on this. Yes, there you are. Jeffrey Rosen, again, opinions
still being read, but based on what you're hearing there, what's the significance?
ROSEN: I'm reading the opinion right now. And the decision -- and the significance is historic and extraordinarily important. And the majority
draws a very clear distinction between official and unofficial acts.
And the crucial holding is that a president is entitled to presumption immunity not only for official acts, but for actions at the perimeter of
his duties, because criminally prosecuting a president for official conduct poses a greater threat of intrusion on to the authority and functions of
the executive branch than simply seeking evidence in his possession.
To put this in context, the Court had held in the Nixon Fitzgerald case that there is a presumption of immunity for against civil prosecution for
conduct related to the president's official acts, and at the perimeter of those acts. And for the first time in American history, the U.S. Supreme
Court has recognized a similar immunity from criminal prosecution, both for official acts and those of the perimeters.
I must emphasize the historic nature of this decision. Aaron Burr was prosecuted for treason and the Court ordered President Jefferson to turn
over evidence. President Nixon was criminally investigated, and the Court ordered him to answer a subpoena. While citing the Burr and Nixon cases,
the U.S. Supreme Court has said that for the first time in American history, that the president is presumptively immune for prosecution from
his official acts, and over a vigorous dissent by three liberal justices, this is a historic day in American history, and it will have tremendous
implications for the conduct of the presidency moving forward.
SCIUTTO: And just in there, Jeffrey Rosen, it's a six three decision, is that right?
ROSEN: That's exactly right, and --
SCIUTTO: And with the same split, we're so familiar with now. Conservatives.
ROSEN: Absolutely, right. And this is, you know, a very significant defeat for Chief Justice Roberts' hope of creating unanimity and legitimacy.
SCIUTTO: Yes, yes.
ROSEN: It's a very significant thing that this is a six to three decision on such a historic question.
SCIUTTO: Jeff Swartz, you've been reading the decision as well, your reactions.
SWARTZ: My reaction is it was pretty much what I think everybody saw out of the oral arguments. I think that it leaves things nebulous for the purposes
of the prosecution in the D.C. case.
It now becomes a factual issue for a judge to decide whether these are official or unofficial acts. It seems that's where it's going to have to
go. Judge Chutkan could decide no, this is a decision that the jury's going to have to make as to where it falls, but it seems that it's a legal
decision.
[10:35:06]
I think that Roberts, in the syllabus of this opinion, basically says, the president enjoys no immunity for his unofficial acts and not everything the
president does is official. The president is not above the law. But under our system of separated powers, the president may not be prosecuted for
exercising his core constitutional powers.
What's core constitutional powers? I don't know. And he is entitled, at least, presumptive immunity from the prosecution for his official acts,
which means that a president could claim this was an official act, have a defense that this was an official act.
The question is who makes the decision? Is this a defense to be presented to a jury? Or is this a legal opinion that has to be made by a presiding
judge?
SCIUTTO: Jeff Swartz, does this -- yes, this is a question we asked prior to this decision. Does this now send as relates to Trump's ongoing
prosecution via the special counsel? Does this send this back to the district court now to decide which parts of those indictments are official
and which are unofficial?
SWARTZ: It would appear that that's exactly what has to occur. But how it occurs seems unclear. And I think again, as I said earlier today, there is
a possibility, because they enumerate within this opinion those things that we talked about before, that are included in the indictment, like the Jeff
Clark situation, or it may even lead itself to conversations involving Pence, which they point to.
So, that situation now comes as to whether by removing those things from the indictment, does this indictment get removed from what this decision
says cannot -- the president cannot be prosecuted for? Even though those things may still be evidence to show motive, intent, and knowledge and
corrupt intent?
So, there is -- there is some wiggle room here from what I've been able to read so far, that I said that Jack Smith could go back even as early as
tomorrow, if they left the state, and at that point, now, go in and seek a new indictment, a super serious indictment for the same charges, just
leaving those particular overt acts out of the indictment.
SCIUTTO: Julian Zelizer, we spoke about this prior to the decision about what Roberts hoped for, or what the read was as to what Roberts hoped for,
in this case, and in others, which is to get at least closer to unanimity. Right?
And to avoid what are a vote are overtly partisan decisions in the sense that you have a conservative majority going one way and a liberal minority
going another way, based on this six three ruling that objective, not achieved here? Significance of that?
ZELIZER: Absolutely. That's true. If that objective is not achieved, he failed to find unanimity. And I think there is enough in this case, that is
going to cause a lot of controversy, both what Jeffrey was talking about in terms of expansion of what a president can do, and a further erosion of the
checks that we have, combined with the ambiguity that will give Smith an opportunity to come back also creates more delay.
And that's exactly what the former president is looking for. Push this as far as possible, away from the election.
And so, the fact this is coming from that six-person cabal, I think is going to be incredibly controversial politically, and raise further
questions about the Court, and have big implications just for 2024.
SCIUTTO: Well, to your point, I'm reading now from Justice Sotomayor's dissent here. And I think you can call this a blistering dissent. "It makes
a mockery of the principle foundational to our constitution and system of government that no man is above the law. Relying on little more than its
own misguided wisdom" -- this is Sotomayor, speaking about the conservative majority. "The Court gives former President Trump all the immunity he asked
for and more," continuing, and again, quoting from Sotomayor's dissent, the majority, "invents an atextual, ahistorical, and unjustifiable immunity
that puts the president above the law."
Wow. I mean, that's blistering. And I wonder Jeffrey Rosen, Jeff Swartz, I do want to go to Katelyn Polantz, your reaction to a dissent like that.
POLANTZ: I mean, some of the lines from Justice Sotomayor here are so searing and so strong. "The relationship between the President and the
people he served has shifted irrevocably. The president is now a king above the law with fear for our democracy I dissent.
That's how she concludes her dissenting opinion in response to the six other justices saying there is immunity for the presidency when the
president is acting is in -- in his official capacity
[10:40:10]
That's a big amount of interpreting the presidency for years to come. Justice Sotomayor, and the dissenters are clearly unhappy with what the
Court is doing. They are giving the president the ability to do what he wants when he is holding that office, when he is acting in his official
duties.
But for the case against Donald Trump, it still may not be as devastating as Justice Sotomayor seems to want to say here, in that -- what the Court
is saying is these goes back to the district court, and the district court is going to have to make some decisions about this case, specifically.
(CROSSTALK)
SCIUTTO: Yes.
POLANTZ: And one thing to point out here, Jim, this opinion, the controlling opinion, does articulate that the vice president on January 6th
is not working as part of the executive branch with the presidency. He is working as part of the Senate. And so, there is clearly a path forward
here, still, based on this opinion.
(CROSSTALK)
SCIUTTO: For something.
POLANTZ: Where there is a test, the Supreme Court is sitting -- setting out for the case against Donald Trump, specifically.
SCIUTTO: Jeffrey Rosen, the words again, a mockery -- makes a mockery of the principle foundational to our constitution system of government that no
man is above the law. Do you agree with Sotomayor is criticism, Jeffrey Rosen?
ROSEN: Well, let me just add Justice Jackson's criticism, which was Justice Jackson says that I agree with every word of her powerful dissent. But I
write separately to explain as succinctly as I can the nuts and bolts of what the majority has done to alter the paradigm of accountability for
presidents of the United States. And what this means for our nation moving forward.
The fact that justices Sotomayor, Kagan, and Jackson argue that this has fundamentally transformed the nature of the accountability of the president
to the rule of law is tremendously significant.
And again, at the great moments of American constitutional history, the Court has sought unanimity. U.S. v. Nixon was nearly unanimous. The Burr --
the Burr case, Chief Justice Marshall ordered President Jefferson to turn over the materials, and he did so.
The fact that there is a partisan split on such a hugely significant matter of American constitutional law, will resonate for decades to come.
SCIUTTO: Jeff Swartz, your thoughts. Because Roberts, in his majority opinion here, wrote, the president enjoys no immunity for his unofficial
acts. And not everything the president does is official. The president is not above the law.
Sotomayor saying in quite strong terms that this decision effectively puts the president above the -- above the law. Who is right?
SWARTZ: Well, effectively, it may. Because a president can come in and say I did this for national security reasons.
SCIUTTO: Yes.
SWARTZ: I did this because it was a threat to the -- to the public. I did this because this is just a really bad guy that has to be put away,
somehow. These kinds of justifications now become when that president leaves office. If that president ever does leave office, the ability to
defend themselves by claiming an affirmative defense that I was doing what I was supposed to do under the Constitution, and now, you have to interpret
the Constitution as to whether that is within the official acts of a president.
This opinion, reminds me of a -- of a case called, Dickerson versus U.S. back in 2000, in which Justice Scalia wrote, "Today's judgement is a
milestone of judicial overreaching into the very Cheops Pyramid of judicial arrogance. Far from believing that stare decisis compels this result, this
case stands for the proposition that the Supreme Court has the power to impose extra constitutional constraints upon the people and the states."
And that's basically what's happening here. That this is now created a right, which clearly the founders did not want a president to have. And yet
they claim to be originalist who really depend upon history for their decisions.
This is absolutely antithetical to everything they claimed that they are.
SCIUTTO: I have a little bit more from Justice Sotomayor's dissent reading now that the president of the United States is the most powerful portion --
person in the country, and possibly the world, when he uses his official powers in any way under the majority his reasoning. He now will be
insulated from criminal prosecution, orders the Navy SEAL Team Six to assassinate a political rival, immune.
Organizes a military coup to hold up coup to hold on to power, immune. Takes a bribe in exchange for a pardon, immune, immune, immune, immune.
That, as you know, Jeffrey Swartz -- Jeffrey Rosen, Jeff Swartz, Julian Zelizer, that relates to a power claim by Trump's own lawyer before the
Supreme Court justices, when asked by Justice Sotomayor that if he were to assassinate a political rival with, for instance, SEAL Team Six, would that
be an official act?
[10:45:17]
And his lawyer said, well, that could well be an official act.
I mean, when that was brought up, both at the district court level and even before this, the Supreme Court, the reaction of folks left and right was
what a silly idea. Has -- is that how far this Court has gone?
Jeff Swartz here, but it's at least left open that possibility that a -- that a president could defend or attempt to defend that act in a court of
law by claiming I did it for the national security interests of the country as based on my judgement as president?
SWARTZ: Very possibly if, in fact, that president leaves office, and that doesn't sound like a guy who's going to leave office.
But let's assume for the moment that President does leave office, absolutely, if he is charged, he is going to say, I did it for the country.
I have the right to order the military to do certain things that's within the bounds of what I do.
And so, as a result of which, if he does send seal six out to kill his opponent, he is going to say, I did it for the country, and I am authorized
under the Constitution. I am the commander in chief, you cannot charge me with the crime for exercising my powers as the commander in chief. And
someone's going to have to make a decision whether that defense stands or not.
SCIUTTO: One very basic legal question. I'm going to go back to a lawyer here, Jeffrey Rosen on this one. Does the court determine here, whether
attempting to overturn an election is an official act based on, if it's create -- if it's creating a potential justification here, which, by the
way, Trump has claimed to say, I was doing this because I feared for the integrity of our elections, et cetera.
Is it declaring him immune from attempts to overturn the election? You thinks contained in prosecutions against him? Or is it not clear?
ROSEN: I think the answer is no, that it disaggregates the various aspects of Jack Smith's charge and send them back to the district court. So, for
example, there is his conversations with the election officials. There is his conversations with the vice president and their his tweets in all of
those three cases, the majority opinion says it's up to the district court to decide whether or not he was engaged in an official act or not. And it
will be sent back to the U.S. Supreme Court for review.
So, while it's not creating a blanket immunity for the charge of trying to overturn the election, it may make it extremely difficult to prove all the
elements of that, because arguably, the president was engaged in official capacities by talking to the vice president, by talking to election
officials, and so forth.
The bottom line is it's going to make this extraordinarily difficult to prosecute.
SCIUTTO: The Justice Thomas, as I understand it, that his concurrence with the majority goes even further. He goes on to question the legitimate
legitimacy itself with special counsel appointments and says, "A private citizen cannot criminally prosecute anyone, let alone a former president,
of course, questions raised by left and right, as to whether Thomas should be involved at all in this decision given that his wife Ginni Thomas, was
involved and connected to love -- involved with and connected to those who attempted to overturn the election here.
Julian Zelizer, put this into some historical context here, the impact of this case.
ZELIZER: You know, the more it sinks in and the more I'm listening, the more dramatic it is. Because it's going to be very difficult, I believe, to
often prove something was not part of presidential conduct. The president will claim anything they do as part of what they were trying to do for the
nation.
That is exactly what Trump has argued with trying to overturn an election, he lost. That he was actually looking for fraud.
So, making that determination will be very difficult. And as we always see, ambiguity often results in the status quo. And now, we are hearing threats
out a second term and prosecutions that will take place, and he will just claim those are part of presidential power.
SCIUTTO: Yes. Yes.
ZELIZER: So, I think the balance of this decision leans toward the president. And I think that's quite significant in terms of where we are
with the balance of power.
SCIUTTO: Well, key point here too, was Trump pressuring Pence to decertify. Roberts rights, "Whenever the president, vice president discussed their
official responsibilities, they engage in office conduct, therefore, he is at least presumptively immune from prosecution for that remarkable event."
Of many and many, many steps and Trump's attempts to overturn the election, it's quite remarkable.
[10:50:02]
CNN's Priscilla Alvarez, she is at the White House.
PRISCILLA ALVAREZ, CNN WHITE HOUSE CORRESPONDENT: Hey, guys.
SCIUTTO: Please do stay with us all of you. We need you. CNN's Priscilla Alvarez is at the White House. She joins me now. And I understand,
Priscilla, we have a reaction from the Biden team.
Sorry, we don't have Priscilla Alvarez now. I'll go back to the team.
The significance of that, Jeff Swartz, that even a president pressuring his vice president to not perform his official constitutional duty of
certifying votes that were certified by the states, often by Republican election officials, that president's immune from that as well? That's
official?
SWARTZ: That apparently is official, at least according to this opinion. And the worst part is, that it doesn't bode well for Congress, either.
What about a president who uses whatever means he has available to him to pressure and or interfere with the acts of Congress, the Senate, or the
House, then, claims that I did those in furtherance of my duty?
Now, we know presidents tried to persuade, but what if he uses the means of his office? I mean, not his persuasive means, but other means indicting
members of Congress who oppose him, using his justice department as a means of retribution against those people. What if he goes after them and
threatens them physically, if they don't do what he tells them to do? But I did it in the further into my office, because I wanted them to give me the
legislation I wanted.
So, I don't know how far this goes. How far a president can claim is his duty. And they don't give us any guidance on that.
They -- this is not an opinion for the ages. This is an opinion that will keep us busy for the next 100 years.
SCIUTTO: Yes.
SWARTZ: That's not a decision for the ages.
SCIUTTO: Well, It's -- certainly, a decision for the next weeks and months given there's an election underway for someone, well, charged with indicted
for attempting to overturn the election.
We are going back now to Priscilla Alvarez at the White House. I understand we have a reaction from the Biden campaign?
ALVAREZ: We do. We are still waiting for comment from the White House. But the Biden campaign is weighing in. A senior Biden campaign adviser, saying,
"Today's ruling doesn't change the facts, so let's be very clear about what happened on January 6th: Donald Trump snapped after he lost the 2020
election and encouraged a mob to overthrow the results of a free and fair election."
It goes on to say, "Trump is already running for president as a convicted felon for the very reason he sat idly by while the mob violently attacked
the Capitol: he thinks he is above the law and is willing to do anything to gain and hold onto power for himself."
Of course, Jim, January 6th, and the protection and preserving -- preservation of democracy has really become the crux of the Biden campaign
and their messaging this election cycle. And so, they are using this very moment to do what they have tried to do over the last several months, which
is underscore the stakes of the election and again, put a very clear focus on January 6th.
In fact, earlier today, they released their first post-debate ad, and one of the things that President Biden takes aim at former President Donald
Trump on is January 6th. Again, in his responses during Thursday's CNN presidential debate.
But, of course, this also has wide implications for the presidency. Of course, historians have said that over the last several decades, there has
been more power that has been provided to the person holding office and we are seeing some of some more of that today. The president himself has not
weighed in on former President Donald Trump's legal troubles, since he took office, usually saying mum on the matter.
But last December, he was asked by reporters if he believes any president is immune from criminal prosecution. And at the time, President Biden
responded, "I can't think of one."
So, we are still waiting for the White House statement and the response from President Biden himself. But the campaign is already using this moment
to again, underscore the stakes of the election and pin January 6 on former President Donald Trump and the point in this statement being that this
ruling does not change the facts.
(CROSSTALK)
SCIUTTO: Yes. Yes, and given the current debate in the party about Biden's candidacy, you can imagine the pro-Biden camp saying, well, this is the
bigger battle now.
Priscilla Alvarez, thanks so much. I'm going to read a bit more from the conservative majority opinion here. Quoting, "The first step is to
distinguish his official from unofficial actions. In this case, however, no court has thus far considered how to draw that distinction, in general or
with respect to the conduct alleged in particular, despite the unprecedented."
Jeffrey Rosen, based on the court's ruling here, can you help us figure out what survives from Jack Smith's indictment of the president? Or what's
likely to sprout survive and whatnot?
[10:55:12]
ROSEN: You know that, I think we don't know. It really is up to the lower court in applying the tests that the Supreme Court has set out about
whether or not the conduct is official or official. It's possible that much of the indictment could survive, of course, that setting aside the
important question of whether the Court's decision in the Fisher case last week, guts half of the indictment. But it's possible that the indictment
could survive.
I'm reading justice Barrett's concurrence, where she says that she believes that the president's actual immunity is narrow, and most of the opinion is
consistent with her view.
So, all this is to say that it's not clear from the majority opinion, how much can survive, but it's on a case by case basis, the lower court is
going to have to decide whether each of the interactions, the president talking to the vice president, the president talking to election officials,
and the president tweeting was or was not official, that's been subject to further review with the U.S. Supreme Court to state the obvious. This case
is not going to be decided, not going anywhere fast any time soon before the election.
SCIUTTO: Thanks so much for that analysis. If you're just joining us now, here is the headline.
The Supreme Court has ruled that Trump is entitled to limited immunity in the January 6th case. More broadly, the court ruled that presidents have
absolute immunity for acts that are clearly official, no immunity for unofficial acts.
However, some presumption of immunity for acts to be defined, our understanding is that this now sends the current indictment of the former
President Trump, back to a lower court to determine when and whether Trump will go to trial and what survives from that indictment.
Do stay with us as we continue our breaking news coverage of this consequential U.S. Supreme Court decision.
(COMMERCIAL BREAK)
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