Trump v. United States

We will hear argument this morning in case 23,939, Trump versus United States.

Hey, everyone, this is Leon from Prologue Projects.

On this emergency episode of 5-4, Peter and Michael are talking about United States v.

Trump.

The question in this case is one of presidential immunity.

Chief Justice John Roberts wrote in his holding in the case that, yes, when it comes to many of the alleged crimes committed during his term, President Trump has, quote, absolute immunity from criminal prosecution.

Which sounds pretty different from what Roberts said in his confirmation hearing in 2005.

I believe that no one is above the law under our system, and that includes the president.

The president is fully bound by the law,

the Constitution, and statutes.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have left our democracy weak and sputtering, like Joe Biden at a debate.

Oh, man.

I'm Peter.

I'm here with Michael.

Oh,

fuck Peter.

As if this episode isn't bad enough already.

Let's bring it all in.

Rhiannon, sick with a case of real job itis and can't make it for this emergency episode.

Today's case, Trump v.

United United States.

The most aptly named case we've ever done.

This is a case about Donald Trump's federal criminal prosecution for his attempt to seize the presidency after losing the election in 2020.

A little bit of background.

In November 2022, Attorney General Merrick Garland appointed a special prosecutor, Jack Smith, to oversee the criminal investigation of Donald Trump for his actions leading up to January 6th, by which I mean specifically the plot to introduce slates of fake Electoral College electors and leverage them to lay claim to the presidency despite having lost the election.

Trump was indicted on four counts and in the course of the prosecution raised a claim of presidential immunity, essentially saying, hey, I can't be prosecuted for this.

Presidents are immune.

from criminal prosecution.

And that is the issue before the court: whether and to what extent presidents are immune from prosecution for conduct that occurs while they are in office.

Instead of doing some background, since that's the sort of long and short of it, we're just going to kick it off with a note about the timing of this case.

The court first had the opportunity to hear this case in December of last year, actually,

after the district court ruled on immunity.

Special Counsel Jack Smith requested what's called cert before judgment, where the court skips the courts of appeals, something they did this term just with the Mtala case, the federal abortion law mandating emergency services, et cetera, et cetera, we talked about.

The court declined and sent it to the federal, the D.C.

Circuit Court of Appeals,

which...

added several months to the process.

A lot of people thought that signaled maybe the court would just not take this case up at all.

Instead, after the several months delay they did schedule it for argument they passed up available argument dates in march and instead scheduled it for their last day of oil argument in april

and handed it down

the very last decision on the very last decision day july 1st right before skittering off to their

billionaire funded summer vacations right off to bohemian grove to do pervert shit So this could have been a case that was handed down on an expedited basis in like January or February if they had taken it seriously.

Instead, here we are.

What was the purpose of that?

To buy time for Donald Trump.

There's basically no other explanation.

So let's talk about the law here.

This issue has never reached the Supreme Court before, the question of like presidential immunity in criminal cases.

However, the question of presidential immunity in civil cases did reach the court back in the 80s in Nixon v.

Fitzgerald.

And all the court said there was that the president is immune from civil liability for official acts of his office, but not for unofficial acts.

So presumably that means something like you can't sue the president for signing a law that you don't like, but you can sue him for punching you in the face.

But that case was just about civil liability, not criminal prosecution.

And the court never actually defined what an official act was.

So here we are with very little guidance on the topic of criminal immunity, and the Supreme Court is on it.

God help us all.

Here we go.

Six to three decision written by John Roberts, the Chief Justice.

of the Supreme Court.

He kicks it off by regaling us with a very brief history about the nature of presidential power.

And he lands with a sort of like theory of presidential immunity.

He says the Constitution grants the president a certain sphere of power and other branches cannot intrude upon that sphere.

So that means Congress cannot pass criminal laws restricting the president within that sphere and courts cannot examine or limit his power in that sphere.

This is all a fancy way of saying that in our constitutional scheme, scheme, the president, according to John Roberts, must be immune from prosecution for his official actions, but not for his unofficial actions.

So the question becomes, what is an official action and how does that apply to Donald Trump?

Roberts starts to talk about how the framers wanted an energetic executive capable of handling any problems that might arise in our country, essentially saying like the president needs relatively broad immunity because if he's concerned about being prosecuted, he won't be able to take the, quote, bold and unhesitating action we need from a president.

This is sort of a return to like the debates that were happening around the Federalist Papers.

Like, should we be a little bit more parliamentary?

Should we be a little bit more executive forward?

And

I don't know.

Roberts is just sort of like endorsing that side of it and pretending that that was the like conclusion of our founding, I guess.

One of the big themes in this opinion is that Roberts believes that it's very important that we have like a strong, unfettered leader who doesn't need to worry about criminal prosecution.

Right.

A little disconcerting.

Yeah.

A little, a little bit more like a lot of people have described this opinion as

paving the way.

for an authoritarian leader, and that is true, but it also feels at times like he's yearning for one.

He is asking for one.

Yeah, I think what's sort of startling about it is this idea that these spheres are completely unregulatable essentially means there's no distinction between a use of power and an abuse of power.

Right.

Every use of presidential power is legitimate.

That's right.

And we'll talk about this in a second.

But I mean, it's a disturbing idea that runs throughout the opinion and is really the heart of the opinion.

Yeah, exactly.

And to that point, I think I'll be mentioning this several times, but like Roberts is doing all this abstract highfalutin bullshit because, again,

the bold and unhesitating action that we're talking about here was trying to steal the election and seeking an angry mob on Congress to hang Mike Pence.

Like, what the fuck are we talking about here, right?

So Roberts says this basically creates two categories of conduct.

First, there are the core presidential powers, those expressly laid out in the Constitution, for example, which he calls exclusive and preclusive.

You don't need to know what that means.

For those, there is absolute immunity for presidents.

But then there are actions that are more in a gray area, quote, within the outer perimeter of his official responsibility.

For those actions, there is a presumption of immunity.

So basically, if it's a close call, we're going to assume that the the president is immune.

So basically, in short, Roberts says the president is immune for anything he does unless it is, quote, manifestly or palpably beyond his authority.

Yeah.

Yikes.

Then he lays out some guidelines here, and the primary one is this, quote, in dividing official from unofficial conduct, courts may not inquire into the president's motives.

Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose thereby intruding on the article ii interests that immunity seeks to protect article two is the part of the constitution that outlines the executive powers just to give that some context doesn't mention immunity at all by the way just yeah just a word missing a concept missing from article two present in other parts of the constitution

but but not here.

You got to really squint.

So in some ways, this feels like the heart of the decision for the reasons that you were just touching on, Michael.

By saying motive doesn't matter, the court is basically saying that any action, no matter how self-interested, how venal, no matter how violent, how completely detached from any concern for the well-being of the country, As long as it's draped in the trappings of the presidential office, it is insulated from prosecution.

This is a theme throughout the opinion, that the actual nature of the action the president is taking is irrelevant.

The things he's trying to accomplish are irrelevant.

And what's relevant is whether he's using the governmental apparatus that he's allowed to use.

So, for example, he's in charge of the military.

He's the commander-in-chief.

The opinion is saying that that means that as long as he's using the military, it doesn't matter what he's using it for.

The court is saying that the office of the presidency presidency is under his control.

That is entirely within his discretion as to how he uses it.

The way I keep thinking about it is that the bottom line is that the office of the presidency is like a gun.

And what the court has said here is that when you become the president, you gain the completely unfettered right to use that gun.

What do you want to shoot?

Doesn't matter.

Why do you want to shoot it?

Doesn't matter.

It's your gun.

The only thing that matters is that it's your gun.

That is an insane, an untenable, and genuinely just like greasing the wheels for a future dictator kind of decision, whether it's Trump or not.

Yeah.

The upshot of this part of the decision is it's still like outside plausible, but feasible that Trump might have some legal jeopardy for January 6th.

If he had just used the military instead of a mob, he would not.

That's the upshot of this decision is that no criminal liability for a failed military coup none because the military belongs to the president yeah it's clearly within the sphere of the presidential power yeah if there's anything that the president has control over and no other branch of government has that much input it's the military right although i still wouldn't say it's the exclusive sphere of the president when congress has the power to declare war but It's my opinion that there's no part of the government that is the exclusive sphere of the president under the Constitution.

There's almost always legislative input or judicial input, but whatever,

the decision just ignores that.

It's bizarre.

We then turn to the Trump allegations themselves.

First, Roberts talks about the allegations that Trump leveraged the Department of Justice to coerce states into changing their electors by perpetuating sham investigations into voter fraud and also threatened to fire the acting attorney general for not cooperating.

Roberts says that the executive branch has exclusive control over both the investigations conducted by the DOJ and the removal of AGs.

Quote, because the president cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with the Justice Department officials.

Roberts is saying that the Department of Justice is essentially a zone of exclusive executive branch control.

So how they conduct investigations and their staffing is the president's prerogative.

He is immune from any wrongdoing that occurs in that context.

The basis for this is like a couple of quotations from Article II of the Constitution, but Article II also specifically says that the executive branch staffing requires the advice and consent of the Senate.

So like,

I don't know how you infer from that that it is the exclusive domain of the executive branch.

There's also a surreal moment where Roberts cites the take care clause.

I don't know if you caught this.

He says the president's control over the DOJ is part of his duty to take care that the laws be faithfully executed.

Bro.

Faithfully executed.

Faithfully executed?

We're talking about a plot to illegally seize control of the federal government, dude.

How can the management of a plot to subvert an election be part of the duty to ensure the faithful execution of the laws?

It's so fucking up is down, black is white.

Oh, these motherfuckers.

I fucking, I hate John Roberts so much, Peter.

I hate him with every, every iota of my being.

Maybe this will be the end of the constant John Roberts glazing we get from legal media about how this guy is somehow like different than the rest of them.

This is like a Dred Scott-level opinion.

This decision is to the extent there will be any civilization left to remember it will be remembered in that vein.

Of the decision that denied the humanity of a huge portion of our population and helped precipitate a civil war.

That's the level this decision's at.

Right.

Something that sort of like crystallizes this fundamental incongruence with democratic values.

Yes.

Right.

Yes.

Not to sort of draw parallels between the level of suffering that Dred Scott permitted, but in terms of like the, what it says about our constitutional order.

I think there's an argument there for sure.

Yeah.

Somebody made the point of, I think it was David Knoll on Blue Sky, that like comparing Roberts to Taney, the Chief Justice in the 1800s who wrote Dred Scott, was that like Taney inherited this extremely racist and egalitarian structure and helped perpetuate it with far less power the Supreme Court had then than it does now.

Whereas Roberts handled a fragile and budding multiracial egalitarian democracy and set about dismantling it.

And when you think about it like that, it's like, yeah, he's the fucking devil, man.

Right.

I also want to point out in this part of the opinion, there's a little bit of deception.

Robert says, well, the president controls the DOJ, so the allegations involving the DOJ are all subject to immunity.

But the allegations don't just involve like the internal management of the DOJ.

They involve using the DOJ to pressure state officials to participate in an illegal scheme.

This is what happens when you take motive out of the equation and everything gets decontextualized, right?

Saying like, well, he has a right to conduct investigations.

He has a right to remove AGs.

So therefore, he has a right to conduct sham investigations and threaten to remove AGs if they don't participate in his fraud on the entire country.

That's not a logical train of thought.

This is sort of, this is somewhat like the equivalent of being like, well, he has a right to own a gun.

He has a right to hold it.

He has a right to move his finger back and forth a little bit.

Right.

So yeah, so that means he can kill someone.

No, yeah, I was about to say this, this is not, this is indistinguishable from being like obstruction of justice.

There's no law saying I can't shred documents, right?

And it's like, yeah, you can shred whatever documents you want as long as they're not evidence of a crime, in which case, then it's a problem, right?

They're like, well, this is within his power and there's nothing wrong with.

using your power.

But actually,

that's precisely the point is like in different contexts, the same actions become criminal, right?

This is the difference between use and abuse of power, the difference between firing a gun at a target and firing a gun at a person, the difference between shredding a blank piece of paper and shredding an important piece of evidence implicating you in a crime.

Like those are, those are different things and collapsing the difference between them is bullshit.

This is also an area where maybe like you're not convinced that Trump is going to institute martial law or whatever, just because this decision kind of says he can.

Yeah.

But I can tell you something that I know Trump's going to do, and that is leverage the DOJ

to target his political opponents, right?

He posted on True Social that they should investigate Liz Cheney for treason the day this came down, right?

Or the day before, something like that.

And imagine when he starts directing those at people who matter.

I also want to note note that

under the federal system, treason is punishable by death.

Right.

So

he's calling for sham judicial proceedings to kill people he dislikes.

That's happening right now while the court is saying the DOJ is yours to do with as you please.

Right.

And to give a little bit of...

political historical context here, after Watergate, norms evolved around the DOJ, where there was basically a separation between the president and investigations at the DOJ.

It's not a complete separation, but, you know, a little bit of cushion to sort of maintain the good optics and avoid a situation where it looks like the president is leveraging the DOJ against his political enemies.

The court is basically being like,

yeah,

that has no constitutional grounding.

This is yours.

This is your toy to play with however you want.

And I think that's bad news.

Yes.

So then Roberts moves on to Trump's attempt to enlist Vice President Mike Pence to fraudulently alter the certification on January 6th.

Here's what Roberts has to say about that.

Quote, whenever the president and vice president discuss their official responsibilities, they engage in official conduct.

Presiding over the January 6th certification proceeding at which members of Congress count the electoral votes is a constitutional and statutory duty of the vice president.

The indictments, allegations that Trump attempted to pressure the vice president to take particular acts in connection with his role at the certification proceeding thus involve official conduct.

And Trump is at least presumptively immune from prosecution for such conduct.

So similar to the DOJ thing, it seems seems Roberts is saying that whenever a president is talking to someone else in the executive branch about government stuff,

he's going to be immune no matter what they're plotting, right?

But here he's going even further because he's saying that Trump and Pence were discussing Pence's, quote, official responsibilities.

But what they were discussing was the subversion of his official responsibilities.

In another branch of government.

Like that's he, the vice president presides over this because he's also the president of the Senate, which is an area where the president has no control.

Like this is

the functioning of the Senate is not only not in the core proclusive and conclusive powers of the president, they're not even in the outer bounds of the president.

Like the functioning of the Senate is the prerogative of the Senate.

Like, what the fuck are you talking about?

Like, this is...

taking the idea of official responsibilities to such an abstract level that like what Peter said is not even an exaggeration.

It's just government stuff.

Yeah.

He says Trump's attempts to pressure the vice president to take particular acts in connection with his role at the certification proceeding.

Okay, so what if those acts, rather than doing fraud on the federal government and the rest of the country, what if those acts were just straight up physical violence, right?

What if it was like Mike Pence, I need you to take this gun and shoot XYZ members of Congress, right?

Immune.

Immune.

Immune.

According to the logic of this.

There's no other way to fucking see it.

It's preposterous.

Yes.

Like, what the fuck are you doing?

What are you talking about?

How is this the logic of our fucking chief logician over there at the Supreme Court?

There isn't like a single thread.

There isn't a single component of his argument that would pass like LSAT logic games muster.

No.

You know what I mean?

Even in terms of its internal coherence, it's bullshit all the way through.

He then

moves on to a couple of other things.

The coordination of the fake elector scheme with various like private parties and also Trump's January 6th statements, the potential sort of like incitement sort of element of this.

Roberts doesn't provide many thoughts on these.

He just says that this issue is remanded to the district court for consideration about whether these are all official acts, which it's worth pointing out.

He was remanding the other portions

that we just talked about to the district court as well.

He just did it with guidance, right?

Right.

So he was saying, look, you need to consider whether these are official acts.

And here are the ones that I know are official acts, right?

Right.

And therefore, Trump is immune.

So whenever he thought something was an official act for which Trump would be immune, he calls it out in the opinion.

But then you have like the coordination with private parties in the elector scheme, which is like very clearly not an official act.

And Roberts is like, well, who knows?

The lower courts will figure it out.

Right.

He provides no guidance, which is a way of just allowing the court to intervene later as it pleases.

Right.

He's like, you guys do with this what you want.

And then when someone finds some reason to bring this back up to the Supreme Court, we can take it again if we want.

And like, I'm sorry, but to be like, I'm able to deduce that him plotting with the DOJ and Mike Pence is an official act, but I have no idea whether his plot with like random criminals in Arizona is an unofficial act.

Like, what the fuck are we talking about here?

Yeah, it's nonsense.

Like, it's just God Emperor Trump, right?

That's all it is.

And working backwards from that to how do we protect our God king.

Right.

And speaking of that,

there is another element of this that's not exactly about his immunity per se.

It's about what evidence a jury can consider in a prosecution against the president.

So he's immune for any official acts, but Roberts also says that juries can't consider evidence of any official acts, even if the prosecution itself is for an unofficial act.

So let's say Trump is being prosecuted because he just grabbed a gun while he was president and shot some children for sport, right?

Unofficial act not related to the presidency.

He's not immune, but he discussed it with the vice president when they were talking about government business.

Can the jury consider that evidence?

John Roberts says no, that's an official act when he was talking to the vice president.

So you can't even consider the evidence.

He says that the proposal that you could consider the evidence, quote, threatens to eviscerate the immunity we have recognized.

It would permit a prosecutor to do indirectly what he cannot do directly, invite the jury to examine acts for which a president is immune from prosecution to nonetheless prove his liability on any charge.

What are you fucking talking about?

The consideration of evidence on another crime is just not the same thing as prosecution.

This doesn't just, it just doesn't fucking follow.

There are so many parts of this opinion where you're just like, what do you, where's the thread of logic here?

What are you talking about?

It's not just there's no threat of logic.

Like, I'm going to read from the Constitution here and

show how much this is doing violence to just the language of the Constitution, let alone its meaning.

This is the impeachment clause.

The president, vice president, and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors.

And the impeachment judgment clause says judgment in cases of impeachment shall not extend further than to remove from office,

but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment.

Which means, according to the Constitution,

the president can be removed for bribery and then tried criminally for bribery.

But according to John Roberts, the bribery, which is a quid pro quo, money for an official act,

the official act cannot even be prosecuted.

That's the quo in the bribery, nor can it even be entered as evidence.

So your criminal trial for bribery would just be: this guy paid him money.

That's it.

That's it.

That's it.

That's it.

That's it.

It's it's fucking insane it makes no sense beater

i mean this one is fucking insane this is in the constitution it's like the in the constitution there are two crimes in the constitution treason and bribery and this this is like no actually not actually not there's two crimes in the constitution the court has basically held that one straight up doesn't exist in any context yeah the other one is when liz cheney is mean to donald trump that that's right that's right

that's right Amy Coney Barrett files a concurrence, and this is the only part of the decision that she does not join the majority for.

Just to give you a sense of how out of bounds it is, she's like, oh, I don't think we need to do this.

In general, Coney Barrett seems like a little

more willing to believe that the whole fake elector scheme is a crime.

Yeah, as I said, she takes like the most narrow possible reading in the majority.

She joins it,

but characterizes it like it's actually like the sphere of conduct it's allowing to be immune is actually quite small in her mind.

I think that is at best painfully naive.

Yeah.

But I appreciate the effort regardless.

Yeah.

Look, I guess I'm not going to knock her for trying to do independent thought.

She's doing her best.

You know, she's trying really hard.

She's just got that little, that little hamster on that wheel in there.

And he's

chugging.

Let's go.

He's absolutely hauling ass.

All right, yeah, let's talk Thomas.

Let's talk the Clarence Thomas concurrence, dude.

The fucking balls on this guy.

The balls on this guy.

Did you read it, Peter?

I don't know if I did it.

I did.

I did.

So, Clarence Thomas's concurrence is about how he is not convinced the special prosecutor has been appointed in a line with the Constitution.

And after signing on to this God Emperor Trump bullshit, spends better portion of the first part of his concurrence warning about how

the executive branch getting to appoint people that are not like in offices constituted by law

is the real threat.

That Jack Smith

existing as a special counsel is king shit, monarchist shit.

Now, I do want to point out, to call it a tension or a contradiction feels like you're putting it lightly.

Yeah.

Here he is subscribing to a decision that says the DOJ

is under the complete control of the president

such that you are allowed to use it to perpetuate a coup.

A coup.

But the appointment of a special prosecutor.

is unconstitutional tyranny.

Yes.

That is Clarence Thomas' opinion.

I mean, look,

the absolute sack it takes to put this on paper.

You got to applaud it.

This is a man of absolutely no shame.

Yes.

A man who is done pretending that his shit makes any sense.

You know what I mean?

Yeah.

This is wild stuff.

So there are two dissents.

Sodomayor writes for all the libs, and it's quite good.

Yeah, it is.

A real vivisection of the majority opinion.

She does cook them, I gotta say.

Yeah, we've already hit a lot of the high notes.

I'm just gonna read a few select quotes that I thought were pretty good, and I think tend to boil it all down, right?

She says, I am deeply troubled by the idea inherent in the majority's opinion that our nation loses something valuable when the president is forced to operate within the confines of federal criminal law.

Yeah.

Yeah, that's what the majority opinion is.

The idea animating it is literally that the president having to confine himself to legal actions is unnecessarily inhibiting.

Right.

She says there's a twisted irony in saying, as the majority does, that the person charged with quote unquote taking care that the laws be faithfully executed can break them with impunity.

Yeah.

This point, which I think is very sharp on how the majority talks about how they're not giving Trump everything he wants, they say they're like rejecting his claim of immunity.

They actually went further than what he asked for because his proposed test was based on that impeachment judgment clause I read earlier.

that you could only try a president for criminal acts on which he had been impeached and convicted, successfully impeached and convicted.

But as Soto Mayor points out, on the majority's view, but not even Trump's, a former president whose abuse of power was so egregious and so offensive, even to members of his own party, that he was impeached in the House and convicted in the Senate, still would be entitled to at least presumptive criminal immunity for those acts.

And I guess last but not least, a point we've made, but is worth reiterating.

The president of the United States is the most powerful person in the country and possibly the world.

When he uses his official powers in any way, under the majority's reasoning, he will be insulated from criminal prosecution.

Orders the Navy SEAL Team 6 to assassinate a political rival?

Immune.

Organizes a military coup to hold on to power?

Immune.

Take a bribe in exchange for a pardon?

Immune.

Immune, immune, immune.

By the way, the majority addresses the dissents by basically saying that they are fear-mongering.

Yes.

And I don't know why I said basically, because I think he uses the term fear-mongering.

Yeah.

But what he doesn't do is explain why any of these hypotheticals is wrong.

No.

Because they're not.

Because there's no way that you can accept the logic of the majority and have these things not be true.

It's absolutely correct that the president will be immune under this decision for taking SEAL Team Six and assassinating a political rival with them.

There's no way around it.

And again, the conduct in the issue in this case

is

trying to fucking steal an election and seeking a mob on Congress to kill Nancy Pelosi and Mike Bay.

Like, what the fuck are we talking about, fear-mongering?

Like, fear-mongering, like, it happened.

That's the thing is, like, even if you are imagining, like, all right, I,

maybe Trump won't use SEAL Team Six to assassinate Joe Biden or whatever.

What actually happened was the attempted overthrow of at least the executive branch of the federal government.

Right.

Using fraud and violence.

And I hate to bring this up because Republicans are sensitive about this, but that was a real thing that happened.

Yes.

Right.

And what Republicans have done is sort of bring themselves to a place where they believe that it was legitimate in some form or another.

The way in which it legitimizes in the Republican brain varies depending on what type of Republican brain you're dealing with.

In the minds of the QAnon folks, the election was stolen and this was a righteous effort.

Yeah, right.

This was God is the vanguard, Trump behind him sort of effort to,

you know, return order to the United States.

If you're a John Roberts Republican, a couple of things.

One, you're like, well, maybe there was some election fraud.

Like, I don't really think these were sham investigations.

There was something going on in the swing states.

We just don't know what.

Two, you're like, well,

is it a fake elector scheme?

What is an elector?

Yeah.

What is a legitimate elector, right?

The just asking questions approach to this, that's where John Roberts, I assume, is.

But they have all sort of led themselves to the same place, which is that

this wasn't really a coup.

This was just some light jostling among political rivals.

Yeah, like the unstated assumption of this opinion is that Trump was a normal president.

His post-election behavior was normal, post-presidency stuff.

And what's extraordinary here is the investigation and prosecution of him.

And that's wrong.

Trump was not a normal president.

I mean, it's crazy to have to say this, but he was not a normal president.

His behavior post-election was not normal, was extraordinary.

And this prosecution, historically speaking, is only extraordinary in the sense that he wasn't fucking hung on the White House lawn

like three days after Biden took off.

Any other country, dude.

That's what makes it extraordinary is that he's getting any process at all here.

Like, what the fuck are we talking about?

All right.

Jackson writes a dissent, too.

She doesn't add add too much substantively, it's not as poignant as Sodomayor's, but it's very sharp.

She talks about the practicalities of prosecuting someone under this framework and how it basically makes any prosecution of any president, you know, impossible in function.

Money quote here: To fully appreciate the oddity of making the criminal immunity determination turn on the character of the president's responsibilities, consider what the majority says is one of the president's conclusive and preclusive prerogatives, the president's power to remove those who wield executive power on his behalf.

While the president may have the authority to decide to remove the attorney general, for example, the question here is whether the president has the option to remove the attorney general by, say, poisoning him to death.

John Roberts just, here's why debate is fake and like arguments are fake.

John Roberts is just getting absolutely cooked

in the dissents.

Just

absolutely toasted.

He's got nothing to say to this shit.

Nothing.

He's losing.

The argument is lost, but it doesn't matter.

Because he's got power.

Six assholes, six dipshits, six fascists.

That's all you need.

Yep.

Oh, my God, dude.

I think one thing.

We should talk about is where this leaves the federal prosecution.

And I think one day later, my answer to that is, I don't know, but probably in shambles.

That's basically where I am with it.

Not only does John Roberts functionally throw out multiple allegations by saying that Trump is immune,

he says that you can't consider all sorts of evidence that Jack Smith relied upon.

Some of the things that he says Trump is immune for have been used in state-level prosecutions.

Trump has already raised that claim.

We'll see where that goes.

But But yeah, the prosecutions against Donald Trump just got very, very hard, if not impossible.

And I think that's the bottom line for me right now.

Yeah, like, for example, like conspiracy to defraud the United States.

Part of that, defrauding the United States, requires a knowledge on Trump's part that he lost the election.

All the evidence.

for his knowledge that he lost the election

will undoubtedly be official acts because it's all coming from executive branch officials telling him the results of the election, which is undoubtedly presidential business to know who won the presidential election.

So like if that can't even be introduced at trial, how can you prove fraudulent intent?

Yeah, no, I mean, there's not much more to it.

Maybe.

Jack Smith can try to like thread the needle on one or two charges.

Yeah, maybe conspiracy against rights.

I don't know like enough about the details of the evidence.

It really depends on like there was a lot of these outside lawyers involved in the Lapeka Lecker scheme and whether they can string like one charge together around all this stuff.

And, you know, this delays the trial past the election.

And if Trump wins, it's all moot because he's going to kill

the investigation metaphorically and maybe literally.

Right.

Which, by the way, like part of the court's decision here is basically

to very clearly signal to Trump, the DOJ

is yours to do with you please.

If you're the president, there is absolutely no problem with you squashing an investigation against you once you take office, which of course he was going to do regardless.

They're just saying like, you won't get any problems from us.

Push back from us.

Yeah, exactly.

And maybe that's where we talk about what this signals for Trump's.

Second term, because this is in some ways less about Trump's current prosecution than it is about the future of Donald Trump.

Yes.

And a signal from the court that like they are giving way and greasing the wheels for whatever Donald Trump wants to do.

When he wants to leverage the DOJ against his political enemies, when he wants to leverage the military against his political enemies, the court is saying there are no consequences for any of that.

Don't worry about it.

You are a king when you come back.

Yeah, that infamous Tom Cotton op-ed where he was like, deploy the troops to shoot the protesters.

Supreme Court on board.

Immunity.

Immunity if you do that.

And the military kills people.

It's a green light.

It's a green light to Trump for all his wildest dreams of what his second term could look like.

And it is a red light to anyone

who thought the federal courts would provide any check on Donald Trump at all.

It's like an announcement that like our institutions have given way.

Yes.

I've heard people

say

pretty consistently that fascists do away with rule of law,

but I don't think that's quite right.

Like under fascism, The rule of law is there, but it's malleable.

It bends to the fascist will.

It's like rigid when they want it to be, and then it gives way when they need it to be.

So Joe Biden cannot regulate emissions because the scope of executive power is too narrow, but Donald Trump can orchestrate a coup because the scope of executive power is so broad.

A president can subvert an election without consequence because we need a powerful executive branch.

But if a president tries to require COVID vaccinations for federal employees, that's tyranny, right?

Yeah.

The rule of law is whatever fascists want it to be at any given time, but it's actually very important to them.

They need it to impose their will on others and free themselves from being imposed upon.

And that's why the Supreme Court is so important to the fascist project.

And to the extent that we do

sort of degrade into fascism, the Supreme Court will be at the heart of it.

Yes.

Just as much as Donald Trump is, maybe more than Donald Trump is, because they dole out the legitimacy for the project.

Yeah, I think that's right.

I think that's right.

And I think what that what that highlights is that this moment calls for something more than like the usual, the politics as usual.

Like your

whatever your prior strategies have been, like they're not enough.

I think that was clear four years years ago i don't think a lot of people were thinking past beating donald trump in an election in 2020 and they looked at joe biden and said he's mr normal he's mr bland he's mr milquetoast and people will want that after the four years of unending fucking daily stupidity and stress and history making of Donald Trump's first term.

And maybe that was right.

And that was like the promise of Joe Biden was that he was Mr.

Normal.

But it was also like the peril of Joe Biden was that immediately upon taking office, he was like back to normal when the moment did not call for it, right?

The moment called for something more than normal.

And it's the fact that he didn't meet that moment.

that it took two years to even seriously investigate Trump, that the prosecutions were seriously delayed, that court reform was taken off the table immediately and like he never looked back.

These are the decisions that have brought us here to Donald Trump being a coins flip away from retaking the presidency with a Supreme Court feeling totally untethered by political constraints and 100% on board with that project.

You can't make that same mistake again.

Like you cannot.

There are some Democrats who realize this.

AOC, Alexandria Ocasio-Cortez, plans to introduce Articles of Impeachment for, I think, all six Republican justices.

Joe Morelli, another New York Dem, says he plans to introduce a constitutional amendment overturning this case.

These are decent starts.

They certainly cannot be the sum total of the Democratic Party response, but at least show one or two people thinking about this as seriously as it needs to be taken.

Yeah.

But that needs to be coming from the party leadership as well.

And so far, I haven't seen that.

I mean, Joe Biden gave a speech the night of brought to you by Were there's Original,

and I would say that it was not very good.

He seemed to understand, or someone in his administration understands, that the moment called for

him to utilize the bully pulpit,

but they don't know how to do it.

Right.

So this is what I'll say about Joe Biden is

I know the debate got a lot of shit, his performance, and there's reports about him not being able to consistently be clear-minded after dark, which is just what happens when you turn 80.

Like that's, that's just aging.

That's not the problem with Joe Biden being old, in my opinion, to be frank.

The problem with Joe Biden being old is that his politics are outdated.

And I think that has been the serious thing that has hamstrung any Democratic party or small D Democratic response to the revanchist right in the last few years is that the leader of the party is a dinosaur who is not comprehending the moment.

Nor is he comprehending much at all.

I'm kidding.

The only problem with Joe Biden in my mind is that he's not older because he needs to accumulate even more wisdom, which comes with age.

There's not enough time between now and the election for him to get older and wiser.

That's the real problem.

There you go.

Joe Biden, he could win in 2020 by promising normalcy,

but he couldn't actually deliver normalcy, nor could anyone deliver normalcy.

And that's the fundamental problem that the Democrats are facing right now.

If they don't understand that,

they're going to get whooped in 2024.

And that is despite the fact that I think most people in this country would very much like for that not to happen.

And that is sort of the project of fascism.

The

energized populist movement drowns out the masses.

That's right.

So just get out there and vote, you know.

It's still disheartening because it's like, obviously, none of us believe that electoral politics are the be-all, end-all of political activism,

but they have to be a part of political activism.

I mean, of course.

The problem with what Joe Biden does is that he doesn't tie his like calls for electoral engagement with an energized vision.

of what American democracy is going to look like over the next 10 to 20 years.

There needs to be a countervailing vision up against the fucking fascists who are getting on television and talking about like millions of immigrants raping people and how abortion is killing babies.

You need to speak clearly and aggressively in opposition to that.

Yeah.

You can't be the maintainers of the status quo anymore.

You need to offer an alternative vision of a society you want to build.

And then when you have power, you have to build it.

You have to try.

You have to try.

It's just, it's not enough.

It's not enough anymore.

All right.

Well, next week, premium episode.

We're going to drop a premium episode about Rahimi, the

gun rights case that was actually kind of a win.

from a few weeks ago.

We're going to drop that today,

but we're pushing it to next week.

Because of the hot case.

Because of the hot case.

It seems more important.

I'm going to be honest, I thought we were about to get through decision season without an emergency episode.

I was like, you know, maybe post-Dobs, nothing feels like as much of an emergency anymore.

What a stupid idiot I was.

You know?

What a dumb piece of shit I am.

All right, folks.

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I actually need two minutes.

I need two minutes.

I'll be right back.

It's 8 a.m.

here, so I wasn't sure, but now that I'm sitting down, I'm like, I need a drink for this.