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One World with Zain Asher
CNN Covers Trump Hush Money Trial. Aired 12-1p ET
Aired April 25, 2024 - 12:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[12:00:00]
(LIVE COVERAGE)
MICHAEL DREEBEN, ATTORNEY FOR SPECIAL COUNSEL JACK SMITH: I think that -- that decision can also be made by looking at what the President actually
said and let me illustrate that with an allegation that I think my friend talked -- briefly.
In one of the interactions between petitioner and a state official, petitioner is alleged to have said all I needed you to do is to find me
11,000 votes and change. I think if you look at that content, it's pretty clear that petitioner is acting in the capacity as office seeker not as
President and we would look at that content.
NEIL GORSUCH, JUSTICE: Okay, okay. But the test I'm just focused on the legal test.
DREEBEN: Right.
GORSUCH: I'm not hearing any objections to it.
DREEBEN: Other than I think that the D.C. Circuit placed more content consideration off-limits than I would.
GORSUCH: Okay. All right. And then, I wanted to understand on the core immunity or whatever word we use that it seems to me that we're narrowing
the ground of dispute here, considerably. Do we look at motives -- the President's motives for his actions? I mean, for example, he has lots of
war powers as we've discussed, but he might use them in order to enhance his election, his personal interests. Is that a relevant consideration when
we're looking at core powers?
DREEBEN: So, I am thinking of this more as looking at the objective of the activity as opposed to the kind of subjective motive in the sense that your
honors talk about. I think that there is a lot of concern about saying an electoral motive to be re-elected as such.
GORSUCH: Right. Every first term president, everything he does can be seen through the prism of by critics at least of his personal interest in re-
election.
DREEBEN: Yes.
GORSUCH: And so, you wouldn't want that, I think you would say, personal motivations off-limits with respect to the core powers.
DREEBEN: Probably -- well, with respect to the core powers we think those are just things that can't be regulated at all like the pardon power and
veto.
GORSUCH: Right. Regardless of motive.
DREEBEN: Correct.
GORSUCH: Regardless of motive.
DREEBEN: That's right. That's right.
GORSUCH: So, then, we're in the non-core powers right where we're fighting over. What role do motives play there? I mean one could remove an appointee
that well, first of all is maybe ask this first is removing an appointee -- a presidential appointee a core power or a non-core power?
DREEBEN: So, here I might need to differentiate between the principal officers that this court in cases like Myers and Seila law has regarded as
having a constitutional status of being removable at will from inferior officers where Congress does have some regulatory latitude to impose
restrictions on removal.
GORSUCH: Sure. Let's put that aside Yeah, I understand that.
DREEBEN: Putting that aside, yes, appointing a principal officer is a core power. I am not prepared to say that there is no potential criminal
regulation to say you can't do it for corrupt purposes, to enrich yourself, for example.
GORSUCH: Well, bribery, all right. But -- but that's what I was wondering. The motives come into the core power analysis or not and now I'm hearing --
I thought I heard no and now I'm hearing maybe.
DREEBEN: I think maybe might be a little bit more appropriate because it's not involved in this case. The Department has not had to take a position on
exactly how these core powers would be resolved under an as applied constitutional analysis none is involved in this case.
GORSUCH: And I guess I'm wondering and I'm not concerned about this case so much as future ones too but these non-core powers and maybe core powers
where a president is acting with a least in part a personal interest in getting re-elected. Everything he does, he wants to get re-elected. And if
you're if you're allowing in motive to color that, I'm wondering how much is left of either the core or non-core powers.
DREEBEN: So, I would be fine with carving that out and deeming that to be something that's intrinsic in our electoral system. We're not talking about
applying criminal law to somebody who makes an announcement that this program will be good for the United States and somebody could come along
and say, well, you really did it to get re-elected.
Leaving aside whether any of that violates a criminal law, I know that the next question is assume that it does. I'm doubtful that it in fact does
because I don't think criminal laws generally operate on motives as opposed to objectives and purposes. But --
GORSUCH: Well, all right, intentions I mean, you can frame a motive I s an intention and intention is a motive, as you well know, and every day of the
week so let's put that aside.
[12:05:00]
DREEBEN: Yes, I understand. Well, putting that aside, that really, to me, falls in a very different category and it is also -
GORSUCH: So, there's some motives or intents that -- that are cognizable and others that aren't. I mean it's awkward, right, when we look at back at
like the injunction back to Marbury in the early cases. You can't enjoin a president.
DREEBEN: Yeah.
GORSUCH: Also, you can't hold him in contempt, right?
DREEBEN: A sitting -- a sitting president.
GORSUCH: For sure. For sure.
DREEBEN: Justice Gorsuch, can I try one more time?
GORSUCH: Let me just spin this out just a second, right? And it didn't matter what the President's motives were. We're not going to look behind
it.
DREEBEN: Right.
GORSUCH: And same thing in Nixon, we said, gosh, in Nixon versus Fitzgerald, that's something courts shouldn't get engaged in because
presidents have all manner of motives. And again, I'm not concerned about this case but I am concerned about future uses of the criminal law to
target political opponents based on accusations about their motives, whether it's re-election or who knows what corrupt means in 1512, right?
We don't know what that means. Maybe we'll find out sometime soon. But the dangerousness of accusing your political opponent of having bad motives and
if that's enough to overcome your core powers or any other limits, reactions, thoughts.
DREEBEN: Yeah, so I think that you're raising a very difficult question.
GORSUCH: That's the idea, right?
DREEBEN: That is the idea. Testing -- testing the limits of both sides arguments.
DREEBEN: And I'm going to say something that I don't normally say which is that's really not involved in this case. We don't have bad political motive
in that sense.
GORSUCH: I understand that. I appreciate that but you also appreciate that we're writing a rule for the ages.
DREEBEN: Yes. And I think I would start by looking at the statutes and -- and then seeing what restrictions they do place on the president's conduct.
And for example, the statute that prohibits fraud to defeat the lawful functions the United States. The statute defines what the purpose is that
the defendant has to have in mind. It has to be to defeat something that the United States is doing and it has to be by deception.
I don't think that that gets us into the realm of motive-hunting in the area where we are as concerned I think as the court would be about doing
something that would undermine the presidency and the executive branch.
And 1512 c2 -- we may have different views on the clarity and the scope of that statute. I think if the court does interpret corruptly as involving a
consciousness of wrongdoing and elevates that to consciousness of illegality, then we're in a different realm. Wanting to get re-elected is
not an illegal motive and you don't have to worry about prosecuting presidents for that.
GORSUCH: Yeah, okay. Thank you Mr. Dreeben.
UNKNOWN: Justice Kavanaugh.
BRETT KAVANAUGH, JUSTICE: As you've indicated, this case has huge implications for the presidency, for the future of the presidency, for the
future of the country, in my view. You've referred to the Department a few times as having supported the position. Who in the Department? Is that the
President? The Attorney General?
DREEBEN: The Solicitor General of the United States. Part of the way in which the special counsel functions is as a component of the Department of
Justice. The regulations envision that we reach out and consult and on a question of this magnitude that involves equities that are far beyond this
prosecution as the questions of the court.
KAVANAUGH: So, it's a Solicitor General.
DREEBEN: Yes. Okay. Second. Like Justice Gorsuch, I'm not focused on the here and now of this case. I'm very concerned about the future and I think
one of the courts biggest mistakes was Morrison versus Olson. I think that was a terrible decision for the presidency, for the country and not because
there were bad people who were independent counsels but President Reagan's administration, President Bush's administration, President Clinton's
administration were really hampered.
DREEBEN: Yes.
KAVANAUGH: In their view, all three by the independent counsel structure. And what I'm worried about here is that -- that was kind of -- let's relax
article two a bit for the needs of the moment and I'm worried about the similar kind of situation applying here.
That was a prosecutor investigating a president in each of those circumstances and someone picked from the opposite party the current
president and usually was how it worked. And Justice Scalia wrote that the fairness of a process must be adjudged on the basis of what it permits to
happen not what it produced in a particular case.
You've emphasized many times regularity, the Department of Justice.
[12:10:00]
And he said -- and I think this applied to the independent counsel system and it could apply if presidents are routinely subject to investigation
going forward.
One thing is certain however, it involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable
manner of fulfilling the executive responsibility to investigate and prosecute?
What would the reaction be if in an area not covered by the statute the Justice Department posted a public notice inviting applicants to assist in
an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as picking the man and
then searching the wall books or putting investigators to work to pin some offense on him?
To be sure the investigation must relate to the area of criminal offense specified by statute but that has often been and nothing prevents it from
being very broad. I paraphrased at the end because it was referring to the judges.
DREEBEN: Yes.
KAVANAUGH: That's the concern going forward is that the system will -- when former presidents are subject to prosecution in the history of
Morrison versus Olson tells us it's not going to stop. It's going to -- it's going to cycle back and be used against the current president or the
next president or and the next president and the next president after that. All that I want you to try to allay that concern. Why is this not Morrison
v. Olson redux if we agree with you?
DREEBEN: Well, first of all the Independent Counsel regime did have many structural features that emphasized an independence at the expense of
accountability. We don't have that regime now but even under that regime, Justice Kavanaugh, I think if you look at Lawrence Walsh's report on Iran-
Contra, I think this goes to a very fundamental point for the court to consider.
Judge Walsh said I investigated these matters. The proof did not nearly come close to establishing criminal violations. So, we've lived from
Watergate through the present through the Independent Counsel era with all of its flaws without these prosecutions having gone off on a runaway train.
KAVANAUGH: Well I think President Reagan, President Bush and President Clinton whether rightly or wrongly thought opposite thought contrary to
what you just said. I
DREEBEN: think nobody likes being investigated for a crime but it didn't result in the kind of vindictive prosecutions that I think your honor is
raising as a possibility.
KAVANAUGH: Yeah.
DREEBEN: We have a different system now. I think there was a consensus throughout Washington that there were flaws in the Independent Counsel
system. It lapsed. We now are inside the Justice Department with full accountability resting with the Attorney General.
So, the Special Counsel regulations now don't operate the way that the Independent Counsel regulations do and this court would have something to
say about it I think if the Independent Counsel statute were revived. I'm not sure that anybody is in favor of that.
KAVANAUGH: Right now, I was just saying this is kind of the mirror image of that is one way someone could perceive it. But I take your point about
the different structural protections internally and like Justice Scalia said, let me, I do not mean to suggest anything of the sort in the present
case. I'm not talking about the present case. So, I'm talking about the future.
Another point you said -- talked about the criminal statutes. It's very easy to characterize presidential actions as false or misleading under
vague statutes. So, President Lyndon Johnson's statements about the Vietnam War say something's false. It turns out to be false that he says about the
Vietnam War. Three seventy -- one prosecution? After he leaves office?
DREEBEN: So, I think not but we need -- this is an area that I do think that merits some serious and nuanced consideration. Statements that are
made by a president to the public are not really coming within the realm of criminal statutes. They've never been prosecuted. I realize that the court
can say, well, what if they were.
And then, I think you get to what I would regard as a hard constitutional question that would probably guide the court away from trying to resolve
today. Although I do think it's very different from our case and distinguishable in important ways. But you're dealing here with two
branches of government that have a paramount interest in the integrity and freedom of their interactions with each other.
On the one hand the president of course should be very free to send, usually, his cabinet officials and sub-cabinet officials to testify to
Congress to provide them with the information needed to enact legislation and to make national policy. And we're very concerned about anything that
would trammel that. On the other side of the equation, Congress has a compelling interest in receiving accurate information and at the very least
not information that is intentionally and knowingly false.
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KAVANAUGH: Right.
DREEBEN: That would pollute the legislative process.
KAVANAUGH: How about, I think it came up before, President Ford's pardon. Very controversial in the moment.
DREEBEN: Yes.
KAVANAUGH: Hugely unpopular probably why he lost in `76.
DREEBEN: Yes.
KAVANAUGH: Now, looked upon as one of the better decisions in presidential history I think by most people. If he's thinking about, well, if I grant
this pardon to Richard Nixon could I be investigated myself for obstruction of justice on the theory that I'm interfering with the investigation of
Richard Nixon?
DREEBEN: So, this would fall into that small core area that I mentioned to Justice Kagan and Justice Gorsuch of presidential responsibilities that
Congress cannot regulate.
KAVANAUGH: How about President Obama's drone strikes?
DREEBEN: So, the Office of Legal Counsel looked at this very carefully and determined that number one, the federal murder statute does apply to the
executive branch. The President wasn't personally carrying out the strike but the aiding and abetting laws are broad. And it determined that a public
authority exception that's built into statutes and that applied particularly to the murder statute because it talks about unlawful killing
did not apply to the drone strike.
So, this is actually the way that the system should function. The Department of Justice takes criminal law very seriously. It runs it through
the analysis very carefully with established principles. It documents them. It explains them and then the President can go forward in accordance with
it. And there is no risk of prosecution for that course of activity.
KAVANAUGH: Thank you for your answers.
UNKNOWN: Justice Barrett.
AMY CONEY BARRETT, JUSTICE: Mr. Dreeben, I want to pick up with that public authority defense. So, I'm looking at the OLC memo that David Barron
wrote that you cited in your briefs and he describes the public authority defense citing the model penal code. There are a different definitions but
I'll just highlight this one.
"Justifying conduct which is required or authorized by the law defining the duties or functions of a public officer. The law governing the armed
services or lawful conduct of war or any other provision of law imposing a public duty."
That sounds a lot like dividing the line between official and private conduct. I think it's narrower and I recognize it's a defense, not an
immunity. But when we look at the definition of it, when you look at the definition of it are you acting within the scope of authority conferred by
law or discharging a duty conferred by law. I think it's narrower than Blassingame, narrower than Nixon versus Fitzgerald but that's what it
sounds like to me. Do you agree or disagree?
DREEBEN: You know, Justice Barrett, I certainly understand the intuition that when you act outside of your lawful authority you've kind of gone in a
frolicking detour. You're no longer carrying it out. I don't really think that that quite works for presidential activity.
The only way that he could have implemented the orders is by exercising his Commander-in- Chief authority over the armed forces or his authority to
supervise the Executive Branch. Those seem like core executive acts to me. There is such a possibility as an unlawful executive act.
BARRETT: I'm not sure that I understand your answer. I mean I was thinking, it seemed to me that in your briefs and today when you referred
to the public authority defense you said that's one of the built-in protections and why immunity is not necessary because in some of these
instances when the President takes such actions that you know the court' been asking you might this result in criminal prosecution you say, well, he
could raise this public authority defense.
And so, I'm saying, isn't this public authority defense if raised doesn't it sound like a defense that says, well I had, I was authorized by law to
discharge this function.
DREEBEN: And therefore, I acted lawfully.
BARRETT: Therefore, I acted lawfully and not criminally liable.
DREEBEN: Correct.
BARRETT: Does that involve a look into motives kind of this is gets to what Justice Gorsuch was asking you. Could you say I was acting within the
scope of my authority by granting a pardon, removing a cabinet officer, but then the public authority defense might not apply because you had a bad
motive in doing so?
DREEBEN: No, I don't think so Justice Barrett. I think that it operates based on objective facts disclosed to counsel. Counsel then provides the
advice. In this case, the Department of Justice and it's an objectively valid defense, it's a complete defense to prosecution.
BARRETT: So, what would be so bad? I mean one thing that strikes me as different, well one thing that's obviously different between the public
authority defense and immunity is an interlocutory appeal and having it resolved at the outset.
What would be so bad about having a question like that resolved at the threshold having it be an immunity the same kind of question that could be
brought up as a defense later but have it be brought up at the threshold as an immunity and then an interlocutory appeal would be available and it
would be a freedom from standing trial but not a get out of jail free card.
[12:20:00]
DREEBEN: Yes, I understand that. And I think that if the court believed that that was the appropriate way to craft presidential protections, it has
the authority to craft procedural rules that implement its Article Two concerns.
That said public authority is -- we're calling it a defense but under many statutes it's actually an exception to liability itself. And what you're
really talking about is trying the general issue. And generally, in criminal cases even cases that involve First Amendment issues like threat
statutes, the jury is the determinant of the facts and I have a little bit of difficulty with the idea of trying the whole public authority issue
separately to the judge and having that go up on interlocutory appeal with review of facts before you could ever get it forward into a criminal case.
That said, if I would prefer a regime in which the court altered some of the procedural rules surrounding the President, then a total absolute
blanket immunity that takes away the possibility of criminal prosecution even if it was a core violation of the statute in the teeth of attorney
general advice and has no overriding public.
BARRETT: You think it has to be a jury question? And I mean, I let's see, I wasn't necessarily proposing actually treating it as a defense that was
done at the outset and then subject to interlocutory appeal. I was proposing what about an immunity doctrine that drew from the public
authority defense that the Department of Justice thinks would otherwise apply.
So, just go with me on that for a minute. Why would it be so bad for it not to be a jury question? I mean it seems to me that some of these article two
concerns would be exacerbated by having it go to a jury rather than a judge.
DREEBEN: So, I think some of them are judge questions that could be resolved on the face of the indictment. If the Department of Justice ever
returned an indictment that said the issuance of this pardon or this series of pardons constituted obstruction of justice, I have a little difficulty
hypothesizing it but a motion could be made on the face of the indictment that says Article Two precludes Congress from regulating these activities,
the indictment needs to be dismissed.
And if the court wished to attach to that kind of a rule interlocutory appeal then that that would be a lesser safeguard than the one that my
friend is proposing here. Other kinds of defenses, though, really do intersect with the general issue. And for those I have a much greater time
seeing how the court could implement that. And would there be costs in going to trial?
Yes, there is no perfect system here. We are trying to design a system that preserves the effective functioning of the presidency and the
accountability of a former president under the rule of law and the perfect system that calibrates all of those values probably has not been devised I
think that the system that we have works pretty well, maybe it needs a few ancillary rules. It is different from the radical proposal of my friend.
BARRETT: Oh, I agree. Let me ask you about state prosecutions because if the president has some kind of immunity that's implicit in article two,
then that immunity would protect him and from state prosecutions, as well.
DREEBEN: Of course.
BARRETT: A lot of the protections that you're talking about are internal protections that the federal government has protections in the Department
of Justice which obviously are not applicable at the many, many state and local jurisdictions across the country. What do you have to say to that?
DREEBEN: So, that raises a supremacy clause issue and the court would run a supremacy clause analysis that would probably start with basic principles
like McCulloch versus Maryland. The states do not have the authority to burden federal functions and would then kind of move through in renegal
where the court said that a state murder prosecution of a federal official guarding a Supreme Court justice and who fired a shot was not permissible.
If the court thought that you needed a more categorical rule for the states, I think the supremacy clause certainly leaves it within the courts
prerogative to determine that the president unlike all other officials deserves more of a robust federal defense than what I have just described.
BARRETT: But it would still be a defense and in the states. It wouldn't be, I mean, -- well that's my point like that you know, it's one thing to
say, well, the President -- they're not going to be these prosecutions that are politically motivated, the things that Justice Kavanaugh was referring
to that might be the danger of this system -- one thing that we have to worry about. That might not carry the day but you know that's a concern.
It's totally different when you take it outside of the Department of Justice and its structures and then you throw it out elsewhere.
[12:25:00]
The idea across -- across the states, the idea of an immunity I think has a lot more purchase if you're talking about something that protects the
former president from standing trial and the state and local level.
DREEBEN: So, I don't know that you would have to design a system in which the president would have to stand trial at the state and local level
certainly within the courts authority as a matter of supremacy clause law to find an immunity. But we -- we have been talking here about some
length on the distinction between official acts and private acts.
BARRETT: Yeah.
DREEBEN: That will have to be determined by some sort of a process, any immunity defense that the court announces can still be met by a state
assertion that we're prosecuting private conduct. You're going to have to have some process. I think having some legal process is not a reason to
cast aside a nuanced system that actually looks at what protections are necessary as opposed to what would provide the absolute maximum insulation
for former presidents even if we acknowledge that it's highly prophylactic.
BARRETT: Totally agree and I wasn't actually contrasting the absolute immunity rule I was saying that if there was some sort of official private,
their consequences towards about making immunity okay and since you bring up the private acts, this is my last question. So, I had asked Mr. Sauer
about on page 46 and 47 of your brief.
DREEBEN: Yes.
BARRETT: You say even if the court were inclined to recognize some immunity for a former president's official acts, it should remain for trial
because the indictment alleges substantial private conduct.
DREEBEN: Yes. And you said that the private conduct would be sufficient.
DREEBEN: Yes.
BARRETT: The special counsel has expressed some concern for speed and wanting to move forward. So, you know, the normal process, what Mr. Sauer
asked would be for us to remand if we decided that there were some official acts immunity. And to let that be sorted out below it is another option for
the special counsel to just proceed based on the private conduct and drop the official conduct.
DREEBEN: Well, two things on that just part. First of all, there's really an integrated conspiracy here that had different components as alleged in
the indictment. Working with private lawyers to achieve the goals of the fraud and as I said before, the petitioner reaching for his official powers
to try to make the conspiracies more likely to succeed. We would like to present that as an integrated picture to the jury so that it sees the
sequence and the gravity of the conduct and why each step occurred.
That said, if the court were to say that the fraudulent elector scheme is private, reaching out to state officials as a candidate is private. Trying
to exploit the violence after January 6th by calling senators and saying please delay the certification proceeding is private campaign activity.
We still think, contrary to what my friend said, that we could introduce the interactions with the Justice Department, the efforts to pressure the
Vice President for their evidentiary value as showing the defendants knowledge and intent, and we would take a jury instruction that would say
you may not impose criminal culpability for the actions that he took.
However, you may consider it insofar as it bears on knowledge and intent, that's the usual rule with protected speech, for example, under Wisconsin
versus Mitchell. My friend analogizes this to the speech or debate clause but we don't think the speech or debate clause has any applicability here.
It's a very explicit constitutional protection that says senators and representatives shall not be questioned in any other place.
So, it carries an evidentiary component that's above and beyond, whatever official act immunity he is seeking. And the last thing I would say on this
is, we think that the concerns about the use of evidence of presidential conduct that might otherwise be official and subject to executive privilege
is already taken care of by United States versus Nixon.
That balances the President's interest in confidentiality against the need of the judicial system for all available facts to get to the truth. And
once that has been overcome, we submit the evidence can be used even if culpability can't rest on it.
BARRETT: Thank you.
UNKNOWN: Justice Jackson.
JACKSON: Just to pick up where justice Barrett left off, I think I heard you say that even if we decide here something a rule that's not the rule
that you prefer that is somehow separating out private from official acts and saying that that should apply here, there's sufficient allegations in
the indictment in the government's view that fall into the private acts bucket that the case should be allowed to proceed.
DREEBEN: Correct.
JACKSON: Because in an ordinary case, it wouldn't be stopped just because some of the acts are allegedly immunized even if people agree that some are
immunized if there are other acts that aren't the case would go forward.
DREEBEN: That is right.
JACKSON: All right.
[12:30:00]
Going back to the clear statement argument, I'm struggling with that argument because my understanding was that when a charged criminal statute
is read narrowly in the presidential context to not apply to the president a constitutional question is being avoided so that you're doing that to
avoid having to deal with the constitutional question. So, what is the constitutional question that is being avoided in those kinds of situations?
DREEBEN: A serious one. This is just an application of this court's ordinary construction of criminal statutes that if there is an available
interpretation that would avoid a serious constitutional question, the court's preferences --
JACKSON: Right. And the nature I guess I'm going at what is what is my understanding is that what is being avoided in that situation is the
question of whether a former president or, you know, can be held criminally liable for doing the alleged acts that is being asserted in that statute
consistent with the Constitution.
So, we look at the statute. It's got some elements in it, and we are saying well, geez, if this statute and those elements apply to the President's
conduct in this situation we'd have to answer the question, can the President be held liable consistent with the Constitution for that
behavior? Is that right?
DREEBEN: So, the first step in that analysis, I just want to --
JACKSON: Yes, please. Okay.
DREEBEN: But the first step is, is there ambiguity?
JACKSON: Right.
DREEBEN: And these statutes apply to any person they apply to whoever there's no ambiguity in those phrases. This court in Nardone versus United
States concluded that similar words any person -- JACKSON: Yes.
DREEBEN: -- apply to government officials.
JACKSON: All right. Well, assume -- let's just assume that we -- I guess I'm just trying to get at we're avoiding a constitutional question if we do
that in the ordinary case. And what's confusing to me about this case is that we're not being asked to avoid the constitutional question. In fact,
the question of whether or not the President can be held liable consistent with the Constitution or does he have immunity is the question that's being
presented to us.
So, I don't understand how the clear statement, kind of analysis, even works it seems completely tautological to me, for us, to hold that
presidents cannot be prosecuted under any criminal statute without a clear statement from Congress to avoid the question of whether or not the
Constitution allows them to be prosecuted. We'd have to have a reason, right? I mean, we'd have to have a rationale for applying the Clear
Statement Rule.
DREEBEN: I would have to have some rationale that's not evident in either the existing doctrine or the text. And just one data point for the court in
thinking about how the Clear Statement Rule works. In the United States versus Sun Diamond, in a case about gratuities that court is probably
familiar with, Justice Scalia wrote an opinion for a unanimous court in which he used a hypothetical about what would happen if the President
received a sports replica jersey at a typical White House event.
Would that violate section 201 C, and the court offered a construction that it had to be for because an official act to avoid that problem. I think, if
there was such a well-received understanding that presidents are not included in general federal criminal law unless the president is
specifically named which he is not in section 201, Justice Scalia would have thought of that and some member of the court would have reacted, and
none did.
JACKSON: All right. Let me go on to ask about what you take the petitioners position to be in this case because we had a lot of talk about
drawing the lines. Justice Kavanaugh, Justice Gorsuch suggested that we should be thinking about blasting game and that within the first, we have
private versus official and then within official now we have something about core acts versus other acts as we try to figure out, you know, at
what level the President is going to have immunity.
But I took the petitioners argument in this case not to be inviting us to engage in that kind of analysis. I thought he was arguing that all official
acts get immunity. And so, I didn't understand us to be having to drill down on which official acts do. And so, my question is, why isn't it enough
for the purposes of this case given what the petitioner has argued to just answer the question of whether all official acts get immunity.
DREEBEN: That is enough and if the court answers that question the way that the government has submitted, that resolves the case. I want to make a
clarification that I may have left the court with some uncertainty about the official act analysis that my friend is talking about is the Fitzgerald
versus Nixon outer perimeter test which is extremely protective of the President.
[12:35:00]
It's not looking at core versus ancillary. It's saying, everything the President does is a target for private civil lawsuits. That is not a great
thing. And therefore, they are all cut off.
JACKSON: That's an absolute immunity kind of concept, right? Anything that's official in the outer perimeter is not subject to liability.
DREEBEN: That is right.
JACKSON: And so, we don't have to then go, well, okay, we have the bucket of official. Now, let's figure out which within that might be subject to
liability, not on the theory of absolute immunity. Correct?
DREEBEN: Neither on the theory of absolute immunity or on our theory. On his theory, everything's protected. On our theory, there is no immunity,
but this is where I would draw the distinction. There are as applied constitutional challenges that you run through the Youngstown framework and
this court's customary method of analysis and you determine whether there's a -- infringement of Article Two.
JACKSON: So, what you're saying is even if we reject the absolute immunity theory, it's not as though the President is, you know, doesn't have the
opportunity to make the kinds of arguments that arise as at the level of, you know, this particular act or this particular statute has a problem in
retrospect. I think I hear you saying, we should not be trying to, in the abstract set up those boundaries ahead of time as a function of sort of
blanket immunity allow each allegation to be brought and then we would decide in that context.
DREEBEN: Yes, with the additional note that petitioner has never made that argument and I think it would be up to a district court to decide whether
to go that route at this point in the litigation, he's put all of his eggs in the absolute immunity basket.
JACKSON: All right. And if we -- if we invite you know, if we see the question presented as broader than that and we do say let's engage in the
core official versus not core and try to figure out the line, is this the right vehicle to hammer out that test? I mean, I'd understood that the
most, if not all, but most of the allegations here, there's really no plausible argument that they would fall into core versus not such that they
are immune.
DREEBEN: We don't think there are any core acts that have been alleged in the indictments that would be off limits as a matter of Article Two.
JACKSON: So, if we were going to do this kind of analysis, try to figure out what the line is, we should probably wait for a vehicle that actually
presents it in a way that allows us to test the different sides of the standard that we'd be creating, right? I don't see any need in this case
for the court to embark on that analysis.
JACKSON: All right. The final sort of set of questions that I have, have to do with what I do take as a very legitimate concern about prosecutorial
abuse, about future presidents being targeted for things that they have done in office.
I take that concern. I think it's a real thing but I wonder whether some of it might also be mitigated by the fact that existing administrations have a
self-interest in protecting the presidency that they understand that if they go after the former guy, soon, they're going to be the former guy and
they will have created precedent that will be problematic.
So, I wonder if you might comment on whether some of the caution from the Justice Department and the and whatnot comes from an understanding that
they will soon be former presidents, as well.
DREEBEN: I think, absolutely. And I would locate this as a structural argument that's built into the Constitution itself. The Executive Branch, I
think, as this court knows has executive branch interests that it at times asserts in opposition to Congress so that the proper functioning of the
president is protected. And I believe that that value would be operative and is operative in anything as momentous as charging a former President
with a crime.
JACKSON: And I would also say, I think and ask you to comment on you know presidents are concerned about being investigated evaded and prosecuted and
it chills to some extent their, you know, ability to do what they want in office. And that's a concern on one side. But can you comment on the
concern about having a president unbounded while in office -- a president who knows that he does not have to ultimately follow the law because there
is really nothing more than say political accountability in terms of impeachment.
I mean we have amicus briefs here from Professor Lederman for example who says you know a president would not be prohibited by statute from perjuring
himself under oath about official matters from corruptly altering destroying or concealing documents to prevent them from being used in an
official proceeding.
[12:40:00]
From suborning others to commit perjury, from bribing witnesses or public officials and he goes on and on and on about the things that a President in
office with the knowledge that they have no criminal accountability would do. I see that is a concern that is at least equal to the President being
worried so worried about criminal prosecution that he you know is a little bit limited in his ability to function. So, can you talk about those
competing concerns?
DREEBEN: So, Justice Jackson, I think it would be a sea change to announce a sweeping rule of immunity that no president has had or has needed. I
think we have also had a perfectly functioning system that hasn't seen occasional episodes of presidential misconduct. The Nixon era is the
paradigmatic one. The indictment in this case alleges another. For the most part, I believe, that the legal regime and the constitutional regime that
we have works and to alter it poses more risks.
JACKSON: Thank you.
DREEBEN: Thank you.
UNKNOWN: Thank you, Counsel. Rebuttal, Mr. Sauer?
SAUER: I have nothing further, your honor.
UNKNOWN: Thank you. Counsel -- Counsel, the case is submitted.
UNKNOWN: The honorable court is now adjourned until Thursday, the 9th of May at 10 o'clock
(LIVE COVERAGE ENDS)
JIM SCIUTTO, CNN ANCHOR: I'm Jim Sciutto in Washington. You've been watching CNN's continuing coverage of Supreme Court oral arguments in the
Trump presidential immunity case. A remarkable, well, two hours and 40 minutes or so. The Justices going back and forth on essential questions
facing this country as relates not just to former president Donald Trump but future presidents, as well.
All of this stems from Trump's claim. He cannot be tried for his role in attempting to overturn the 2020 election that he enjoys well virtually
limitless immunity as a president and former president. There is of course also the criminal hush money trial happening right now in Manhattan. We're
going to get to that in a moment, but, so many questions for what we just witnessed or at least heard in the last several hours here. And I want to
bring in former Federal Prosecutor Shan Wu.
A couple big questions first. It strikes me listening to the case made by the President's lawyer here that he is arguing for really, the broadest
interpretation of immunity, I think we've ever heard. I mean, he was asked, you know, the classic case of if a president ordered SEAL Team Six to
assassinate his opponent. Is that necessarily criminal, well, we have to consider it. Was it an official act, et cetera, if he sold nuclear secrets
to it to a foreign adversary.
Would that be, well, we'd have to consider whether it's official if he staged a coup, is that as far as Trump's lawyers argument goes that really
all of that is okay unless either there's an explicit statute that prevents a president from doing it or you at least have to argue whether it was an
official or private act?
SHAN WU, DEFENSE ATTORNEY: Yes, I think that's how far they want to go and I think the key to understanding their argument is this official acts
notion. And rather than trying to determine was this an official act or not, I think the way to look at their argument is if what the president did
that authority is when his official acts so your commander-in- chief you can order military strikes. Military strike happen to be on someone who is
not a military target you just did it for fun or to eliminate someone. That doesn't matter because the fact that he has the power to order it makes
everything else unrevealable. That's the scope of the immunity.
So, then, a lot of hypotheticals about well you know bribes and such --
SCIUTTO: Yeah, like that the same problem. He has the appointments power to appoint people. It doesn't matter to them if he was paid because he's
exercising his official act authority. As long, as it's one of those things, then they would consider to be off limits.
SCIUTTO: I want to get to in a moment where you think this goes next because you can get a sense from the questions there. We don't know for
sure but you get a sense. But before we get there, the other point that struck me big picture is the script flipping here. Because they have a case
before them.
WU: Right.
SCIUTTO: - which is a former president and while he was President, attempting to overturn an election. That's a real case, they've got the
evidence and whether you deem him to be guilty or not they have that before them but several of the conservative justices seem to ignore that and focus
purely on the possibility that at some point in the future, a future president might be proper prosecuted frivolously. Did that surprise you?
WU: No. I mean, I think that would be their reason for taking it. I don't think that's a good reason because in the 200-year plus history, this
hasn't happened before.
[12:45:00]
But that's clearly what they're saying. They're interested in Kavanaugh even at one point I said, look, I'm not saying there's some kind of bad
faith in your prosecution but you understand, you know, we're looking to the future. I think Gorsuch said the same thing. We're writing for the ages
here. So, they're trying to establish some framework that won't be affected by the particular facts of any given scenario.
SCIUTTO: Okay. Let's then talk about what sounds like it will be the essential question for them moving forward and that is what's an official
act, what's a private act, which also speaks to and I want to get to that in a moment what they might do at this point.
But did it -- did we make any progress on determining the answer to that question as relates to January 6th, something's private which even the
conservative justices seem to say, well, if it's private, then he can't be prosecuted prevent criminally. If it's official, it's not. Did we -- did we
see any beginning of a defining line as to what's official and what's private?
WU: I don't think so, because sour arguing for Trump actually conceded a number of actions that would be private like using private attorneys. But
even conceding that may move to your next point -- doesn't get you to the bigger point of what do you do with the charges.
SCUITTO: Right.
WU: Just because there's a hybrid, they're interwoven with some private actions. One side's going to say that doesn't matter. None of it can be
looked at, prosecuted, if it's involved with official acts. The other side says look, the bulk of this was either not official acts or your private
acts you could move forward with but more importantly there's no such thing as presidential immunity.
SCIUTTO: Right.
WU: At one point, driven pushback, I think it was to Roberts who was saying you're going to take away immunity and treatment actually said look
I disagree we're not taking away anything, there is no immunity to begin with.
SCIUTTO: Yeah. I get it. Well, it was remarkable even on that question of official versus private, there was a moment where the attorney for Trump,
you know, seemed to say that that issuing a false slate of electors was an official act.
WU: Right.
SCIUTTO: Pretty remarkable one considering what the intent was there. Just very briefly then, the options of the court now are, they could remand
which is send it back to the lower court and say you've got to come back with some more clarity as to what's official and private or, and Justice
Jackson was getting to this in greater detail just towards the end there. They could define to some degree and then allow the special counsel to
pursue this case based on the private acts as opposed to official acts.
WU: Yeah, that was really an interesting alternative path out. The suggestion would be, look, there seems to be agreement between Trump and
the special counsel office. Some things are private. What about you just only prosecute those aspects of the charges and avoid the official acts.
Dreeben pretty much agreed that could be done but then he quickly added, we'd still bring in evidence of the official --
SCIUTTO: Right. Because he said that would be informative for intent -- evidentiary of intent. I mean he made it he made a distinction here said
for instance okay so, we base the prosecution on the fraudulent electors he says that was private or calling senators to delay the vote, called that a
private act but pressuring the Vice President which he said could be official, we bring that in to sit, because it's part of the larger picture
of what the former President was trying to do.
WU: That's exactly right. They would try to bring it in to show intent as in prosecutorial jargon, it's called these, sort of, other crimes evidence,
other bad acts.
SCIUTTO: Right.
WU: They aren't being charged but we get to bring it in because it's probative to intent and it's not so prejudicial that it would outweigh
that.
SCIUTTO: Understood. Is that -- is that possible? Is it possible for the court to do that here or in your view is it more likely they just say hey
lower court, you got to sort this out before we can proceed.
WU: I think it's more likely that they might do the remand. I think they're a couple votes in question on that. Maybe Amy Coney Barrett, maybe
Roberts. I think it's an interesting solution for them to say just right slim it down not really sure I think that's a 50-50 chance.
SCIUTTO: All right. We're going to know. We're not clear how quickly -- we're going to know. Shan Wu, thanks so much. So many questions. It was a
remarkable. Nearly three hours there to hear not just the arguments of the attorneys for Trump and for the special counsel but the responses the
questions in the moment and sometimes the quips of those nine Supreme Court Justices. Please do stay with us. We'll be back with much more after this
short break.
(COMMERCIAL BREAK)
[12:50:00]
(COMMERCIAL BREAK)
SCIUTTO: Welcome back. Quite a morning and early afternoon before the Supreme Court. On the left side of your screen is a side panel with
information from Trump's other legal matter. Of course, being heard today, the criminal hush money trial still going on in Manhattan.
Back to the Supreme Court, though, the High Court has just wrapped up a hearing of oral arguments on a central question, does the former President
have immunity from criminal prosecution for acts taken in office? Not just the former President but future presidents. Some of the Justices were
skeptical of the former President's argument.
(BEGIN VIDEO CLIP)
SONIA SOTOMAYOR, JUSTICE: There's some things that are so fundamentally evil that they have to be protected against. Now, I think what -- and your
answer below. I'm going to give you a chance to say if you stay by it, if the President decides that his rival is a corrupt person and he orders the
military or order someone to assassinate him, is that within his official acts that for which he can get immunity?
D. JOHN SAUER, ATTORNEY FOR DONALD TRUMP: It would depend on the hypothetical but we can see that could well be an official.
SOTOMAYOR: It could.
(END VIDEO CLIP)
SCIUTTO: An assassination could well be an official act. You heard those words before the Supreme Court today from the attorney for Donald Trump.
Jeff Swartz is a former judge, now professor at Thomas Cooley Law School he joins us now from Tampa Florida. So, you could take out a political
opponent. You could sell nuclear secrets. You could carry out a coup according to Trump's lawyer.
Well, they might be official acts. They might be protected. They might at least protect a future president from criminal prosecution unless he said
for instance he was first convicted in a Senate impeachment trial. What did you think of that argument?
JEFF SWARTZ, FORMER FLORIDA JUDGE: I'm flabbergasted by it and I'm flabbergasted by some of the justices kind of taking up with that and
trying to find another way around it. Some of these justices and many of them are what they call textualists. I'm still looking in the Constitution
for anything that says the President United States has immunity from anything.
These are interpretive and if you're a textualist you're not supposed to be interpreting. But I'm more concerned over the idea of Justice Kavanaugh in
particular sitting there saying, well, I'm looking out for future presidents. We've made it almost 250 years without ever having to get to
this point.
And now we're at this point and they're worried about the future protecting future presidents from the actions of a President which may have been, in
fact, trying to overthrow the government of the United States. Somehow or another, I just don't see the logic in that either coming from Kavanaugh or
Alito.
[12:55:00]
I just -- I just don't know where they're reading the Constitution the way they claim they are.
SCIUTTO: Most likely outcome, just briefly here. Do you think they were manned, in other words, push it back to the Lower Court to say you have to
the better defined official versus private act or do you think they might ask the special counsel to trim down his case?
SWARTZ: I think Justice Barrett had it kind of right in in the end when I was listening to her. The question is -- is it a jury issue or is it
something that court has to decide? I think any claim at this point that there were official acts and therefore he is immune or he cannot be held
liable for it is an affirmative defense that I think Mr. Trump should have to come forward and prove at trial. That burden is on him to prove that
he's somehow immune.
And I think that allows the case to get tried this year. Otherwise, it's not going to get tried this year because now, Judge Chutkan's going to have
to have another hearing for which the former president will now have the right to go back to the 11th Circuit and back to the Supreme Court to
determine whether the ruling is correct or not.
SCIUTTO: We'll be watching. Jeff Swartz, thanks so much. And thanks so much to all of you for joining us I'm Jim Sciutto. "AMANPOUR" is next.
(COMMERCIAL BREAK)
END
