Nixon v. Fitzgerald

We'll hear arguments first this morning in 79-1738 Nixon against Fitzgerald and the related case.

Hey everyone, this is Leon from Fiasco and Prologue Projects.

On this episode of 5-4, Peter, Rhiannon, and Michael are talking about Nixon v.

Fitzgerald.

This is the case about presidential immunity.

It stems from a lawsuit filed by a whistleblower who was fired by President Nixon.

Citing the separation of powers, the court ruled 5-4 that the president has absolute immunity from liability for official acts.

But the strange thing about this case is that barely any of what the court decided is actually based on the text of the Constitution.

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 flooded our nation with bad law, like torrential downpours flooding Los Angeles.

I'm Peter.

I'm here with Rhiannon.

Hello.

And Michael.

Hey, everybody.

It's relevant right now to the three of us.

It is.

I'm going to tell our listeners a story.

It's fall 2023.

Someone's like, hey.

Do you want to speak at UCLA in February?

Yeah.

I'm like, whoa.

Yeah.

This This rules.

Yeah.

I would love to leave New York City in February and go to Los Angeles in February.

Right.

Get out of the snow, get into the sun.

Incredible.

It's so nice.

Right.

What could go wrong?

I thought.

Yeah.

Let me tell you what could go wrong.

Apparently Los Angeles sucks now.

And I wasn't really aware of this, but now it's like every couple of weeks it rains so bad that it all floods.

And from what I know of Los Angeles, it's a driving city.

And so that's a real problem.

Yeah.

So anyway, I'm flying in tomorrow into a horrifying maelstrom.

Torrential downpour.

Biblical level flood so that I can teach some UCLA law students shit that they could have learned by just listening to the podcast.

And that's how I die.

All right.

So

today's case, Nixon v.

Fitzgerald.

This is a case from 1982 about a very hot topic, immunity for presidents.

Long before Donald Trump, we had another narrow-do-well president, Richard Nixon.

Yeah.

Now, as far as Nixon goes, this case is about one of his less offensive transgressions, to say the least.

A couple of Supreme Court cases on this guy.

Yeah.

Yes.

In 1968, an analyst for the Air Force testified before Congress about certain problems related to the development of an airplane.

And then when Nixon got into office, that analyst was laid off and he sued Nixon, claiming that his termination was unlawful retaliation.

Yeah.

And what Nixon argued in response, if you will allow me to summarize, is you can't sue me.

I am the president.

Right, basically.

That's right.

That's right.

Get fucked, loser.

And the Supreme Court, in a five to four decision, agreed with Richard.

This remains, believe it or not, the seminal case on presidential immunity.

So we want to talk about the logic and implications of the decision, especially because, again, the trials and tribulations of Donald Trump have made this quite pertinent.

Right.

We'll talk a bit about that later.

So, Rhea, I'll hand it over to you.

You know, we should talk really quickly just about like what we mean by immunity, immunity in the law.

There are different kinds of immunity.

You might have heard about immunity from criminal prosecution.

The most common way you might have heard about this is, say, there's a witness who testifies against somebody else in a criminal case.

And in exchange for testifying against somebody, the government, the prosecutor might offer them immunity from being prosecuted for crimes that they themselves, that witness might be accused of, right?

So you might be given immunity from criminal prosecution.

There are other kinds of immunity.

We have talked about some of them on this podcast.

There is immunity that is granted to government officials for doing the functions or the actions of their government office.

One example we've talked about on the podcast before, prosecutorial immunity.

Prosecutors are generally immune from lawsuits.

You can't sue a prosecutor for doing something that is part of the prosecutorial function, for doing their job.

right

so really importantly i think understanding that idea like what is immunity what is it that we're talking about here today?

That's important.

But the number two thing that I think you should also keep in mind as we talk about this case is that a fight about immunity is a fight about whether or not, in this case, the president can be sued for something.

And it never gets.

to the merits of the case.

So we're talking about somebody suing the president for allegedly illegally firing him from his job.

The court is never going to decide if that actually happened.

That's how immunity works.

It's somebody saying they cannot be sued for something.

It doesn't matter what the underlying issue is.

It doesn't matter the bad thing they're being accused of doing or how illegal it is.

Immunity means they cannot be sued for it.

So let's talk about what Arthur Fitzgerald said happened to him and why he was trying to sue President Nixon based on events in 1968.

Now, by the time Fitzgerald filed this this lawsuit, we already knew that Nixon was a bad guy, was not good at being president, was doing lots of illegal things while in office.

Back in 1968, this is the end of President Johnson's presidency, Arthur Fitzgerald was a civilian employee of the U.S.

Air Force.

His job title was management analyst.

That year, Fitzgerald testified before a congressional subcommittee about the problems with developing a particular airplane.

Basically, he said there were some technical difficulties, a major cost overrun, stuff like that.

You know, he's basically giving whistleblower testimony.

He revealed that the development of this military transport plane was going to go over budget by $2 billion.

So he gives that testimony.

A year later, after Nixon had taken office, Fitzgerald was fired.

And there was some pretty clear evidence that it was at President Nixon's specific request that Fitzgerald was fired, that Nixon himself personally was not happy with Fitzgerald's testimony and he wanted him fired for it.

Here's the evidence:

I was totally aware that Mr.

Fitzgerald would be fired or discharged or asked to resign.

I approved it.

This was not a case of some person down the line deciding he should go.

It was a decision that was submitted to me.

I made it and I stick by it.

So, yeah,

there's evidence that the president asked specifically that this random guy who works for the U.S.

Air Force be fired because the random guy gave testimony to Congress that President Nixon didn't like.

Sure.

So Fitzgerald brought a complaint before the Civil Service Commission saying basically like, I was illegally fired.

First of all, I have First Amendment rights.

I can't be fired by the government for expressing.

my political opinions, my political beliefs.

And second of all, I have employment law rights that say like, you can't fire me in retaliation for something I said.

Now, the Civil Service Commission didn't totally agree with Fitzgerald, but they did say that it seems that he was fired for purely personal reasons, not reasons related to, you know, his job performance, for example.

Just so everyone knows, like, Nixon did make it clear that he was firing this guy because he was mad about the testimony.

And in case an entrepreneurial young lawyer is wondering or something, there were no like federal statutory whistleblower protections at this point in time.

The Whistleblower Act pops up in the late 80s.

So that's why this isn't like a whistleblower case.

You couldn't blow the whistle.

It just wasn't allowed at this time.

So Fitzgerald decides to pursue a lawsuit, and he sues several government officials, the Department of Defense included, but he also sues President Nixon himself.

So Nixon, in the summary judgment phase of the case, he asserts that he has absolute immunity from lawsuits because he is the president.

And the district court actually denied that motion.

And that gets appealed basically by the Nixon team all the way up to the Supreme Court.

Again, just the question of presidential immunity.

Can President Nixon, as president, be liable, be held liable through a lawsuit?

Right.

So here we are.

14 or so years after he got fired, and the court is still trying to figure out whether Nixon can be held responsible at all.

So let's talk about the law here.

There is nothing in the Constitution that talks about presidential immunity.

Yeah.

Nor is there a law that governs presidential immunity.

What there is is a long tradition, both in America and elsewhere, of government officials experiencing some level of immunity related to their actions in office.

The idea being that government officials, presidents especially, need to be able to operate freely and decisively, and government would grind to a halt if they could just be sued or criminally charged like normal citizens.

We are entrusting them with power, and with that comes a trade-off whereby we understand that they are not liable for their actions in the same way that the rest of us are.

Exactly.

Yes.

Now, this is especially tricky in the United States because we have this idea of the separation of powers.

To sue a president, for example, you need to utilize the courts, which are, of course, a separate branch of government from the executive branch.

You don't want the courts to have too much power over the other branches, or the sacred balance of power that James Madison envisioned might be slightly off-kilted, right?

Yeah.

Although the separation of powers isn't really in the Constitution either.

Nope.

I can't really emphasize how little actual law is involved in this case.

I mean, the separation of powers is like derived from like some principles, right?

Like the legislature has certain powers,

but also in the Constitution, those powers sometimes overlap.

Absolutely.

Yeah.

So one thing to keep in mind here is that this case is about civil immunity for Nixon, right?

Immunity from a civil lawsuit.

If you look at like Trump's case, that's about criminal immunity.

Now, there is no Supreme Court case about criminal immunity for presidents.

So no one really knows how that works.

And part of the reason we're going to be talking about immunity generally is because this is the leading case for presidential immunity of any type, because the court has never really talked about criminal immunity at all.

All we have is this.

And, you know, Nixon obviously did lots of criminal shit, but...

you know, after he left office, Ford pardoned him.

So there was never any real opportunity for litigation of issues of his criminal liability.

Yeah, he did that to heal the nation, and it worked.

So this is one of only a couple of data points that we have about how this all works.

So the majority is written by Justice Powell.

A Nixon appointee.

A Nixon appointee,

friend of Dick.

And the opinion is sort of rambly because, again, there's no firm logic to follow here.

It's not like it's it's really grounded in the Constitution.

It's not grounded in a law.

It's just some broad principles that need to be applied to the situation.

Right.

So what the court says is that the president is immune for any official acts he takes in office.

Now, what exactly is an official act?

I suppose you could imagine that like commander-in-chief stuff is an official act, right?

State of the Union, an official act.

Handling the staffing at his agencies.

Yeah.

An official act, right?

Now, this is not really a big deal in Nixon's case because most people agree that handling the staffing in a federal agency is an official duty of the president to some degree, but it does become an issue with Donald Trump, which we'll talk about later.

So circling back to the majority opinion, so they're saying that Nixon is immune for official acts of his office.

And they have a couple of broad principles that support this.

Yeah.

Quote,

because of the singular importance of the president's duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.

Yeah, if I'm always afraid of getting sued, I can't be the president.

I can't do my president job.

You've got too much president stuff to do.

Right.

Yeah, yeah.

You can't be handling lawsuits all day.

Then they say that this is all rooted in the constitutional separation of powers.

And again, you know, the court is very wary about intruding too much into the domain of the executive branch, at least in this one case, although they do it all the time in various other ways.

And then finally, there's like this little bit where they're like, look, just because the president has absolute immunity here does not mean that he can just do whatever he wants without consequence.

He's not above the law.

There's still impeachment, right?

You can always impeach him.

They also say that a president would be deterred from abusing his power by the press.

Sure.

Yeah.

President Nixon really fucking cared about about what journalists were saying about it.

But this is sort of like a post-Watergate sort of thing to say, right?

Like the heroes at the Washington Post will save us from any evil presidents.

You don't got to sue him.

The journalists will say that he fired that guy illegally.

It is very funny, though, that since it's post-Nixon era, meanwhile, the Nixon tapes are like him making some like wildly anti-Semitic remark about like the media.

Right.

Yeah.

Right.

And a a little bit of history here.

Less than a decade prior to this, the Supreme Court ordered Nixon to hand over the audio tapes that would like ultimately unfurl Watergate.

And he just like deleted some of them.

So

weird to trust either the press or Nixon in this situation if you're the Supreme Court.

But here we are.

And that's really it.

That's the crux of the opinion.

One thing about immunity doctrines is that they're so made up that the court decisions about them, there's almost nothing to say.

I mean, there's just nothing here.

They're just like, well, separation of powers and like, it's pretty hard for the president to do this job.

So

he's immune.

We're just going to, we're going to say that he's immune.

Totally made up.

And by the way, one of my favorite examples of judge-made law that no one ever complains about.

Completely made up doctrine that governs a huge amount of our relationship with public officials, right?

This concept doesn't just apply to the president, applies to all matter of government officials in different ways.

But no one talks about it like that.

No one's like, yeah, here's this big fake thing that judges made up, right?

Right, right.

Which is a criticism in other areas of the law, right?

That judges have made something up.

This is just about their policy preferences.

They're not actually interpreting real law here.

But why does nobody complain about this in the government?

Well, it protects government officials, right?

They benefit from it because immunity doctrine, even if it is judicially made up, protects government officials from being sued.

That's right.

Very important to members of the court who are, at the end of the day, government officials.

And have given themselves absolute immunity as well.

Yes.

Yeah.

Judicial immunity is also a thing.

Must have felt good.

Yeah.

So we should talk about another Nixon appointee, Warren Berger, who wrote a concurrence.

I'll tell you guys, I've read this concurrence like three times,

trying to be like, like, what is he trying to say here?

That's different from the majority.

And do you get it?

I can't tell you.

Not only, I can barely tell you what he said, let alone how it's different.

It's so fucking boring and bad and nonsense.

When we were prepping, I was like, I don't know if we need to talk about the concurrence because I glanced at it and I don't know what's going on.

Like everything Peter said about the majority, but to the nth degree.

Yeah.

But a few things did jump out at me.

I thought this was like a little interesting crux.

He says, look, the immunity of a president from civil suits is not simply a doctrine derived from this court's interpretation of common law or public policy.

Absolute immunity for a president for acts within the official duties of the chief executive is either to be found in the constitutional separation of powers or it does not exist.

Okay.

You know, conceding that, yeah, the Constitution doesn't actually say this.

So you have to sort of derive it from the structure of the constitution so you might expect to follow an analysis of the structure of the constitution but instead what you get is an analysis of public policy

yes very long analysis of public policy of saying things like

Look, exposing a president to civil damages would

open them up to harassment, absent absolute immunity.

Every person who feels aggrieved would be free to bring a suit for damages.

Just policy, policy, policy.

Yeah.

And the majority already said this.

Right.

And repetitive of the majority.

Shades of Kavanaugh here.

This is a Cav thing.

Yes.

Whenever a justice is like, I'm writing separately to emphasize, you can just skip the whole concurrence.

That's not important.

I do think it's funny they talk about comparing it to legislative immunity for the speech and debate clause, which is in the Constitution.

It's sort of interesting because he's, you know, Berger in the majority does this too.

It's like, yeah, we're just putting the president on equal footing with senators and congressmen and judges and prosecutors and all this stuff.

And it's like, yeah, but one of those immunities actually exists in the Constitution.

It's written in the Constitution.

And the rest, you're just like conjuring out of thin air.

This is sort of something that...

It's intuitive once you know it, once you've heard this, but this is like a legislative interpretation thing where if it's it's like cats and dogs are allowed in the store, right?

That actually cuts against turtles being allowed in in the eyes of a judge because they could have said pets.

And this is a similar thing where like if they specifically mention immunity for one person

and not another,

that makes it seem like they thought about it, doesn't it?

Right.

So it's almost a stronger argument than if there was no mention of immunity in the Constitution at all.

And there's just like no grappling with that at all.

None.

like the implications of the fact that they gave immunity to senators but not

to the president yes we don't need to even think about that the law rules yeah these are experts

these are the sharpest minds

sharpest legal minds of their judgment

on immunity so we should go to the dissent which i think is certainly sharper than the majority or concurrence here because there's so much to point out about the vagueness the made-upness of the majority and the concurrence, right?

So main dissent, there are two dissents.

One is by Justice White, the other is by Justice Blackman.

Justice White's dissent is really the main one, the substantive one here.

And Justice White's thesis is basically, we have immunity doctrine.

Immunity is real, but what the majority is doing is extending it beyond what immunity should be.

Immunity is narrower in Justice White's mind.

And so what he points out are different areas of immunity doctrine in the law.

Prosecutorial immunity, for example, which extends to particular activities, actions, behaviors of a prosecutor, right?

But not attached to the office of the prosecutor, right?

We have a whole episode about prosecutorial immunity, a notorious piece of shit, Harry Connick Sr., father of the actor, and that piece of shit just died.

Get fucked.

So White says, quote, attaching absolute immunity to the office of the president rather than to particular activities that the president might perform places the president above the law.

It is a reversion to the old notion that the king can do no wrong, right?

So what he's saying is there are certain functions that the president has to do as president.

There are certain actions, decisions that the president has to make because they are the president.

And yeah, those things might be areas where we apply immunity doctrine and the president is immune from lawsuit for doing the functions, for doing the job of the president.

But things, behaviors, decisions made outside of that, right, that are kind of on the periphery, decisions that the president makes that he, for instance, knows are illegal, knows will harm many people, knows aren't part of the job of being the president.

Those things, Justice White is saying, we don't need to extend absolute immunity to.

We don't need to extend absolute immunity just to the office.

Just because you're the president, any behavior, any decision you make is immune from suit.

Justice White is calling that out, right?

Right.

What White is arguing is that while presidential immunity is a thing and should exist, it shouldn't exist for every job function that the president has, right?

It should be narrower than that.

There's immunity when you're like doing certain things in good faith, trying to do the job.

It's not just immunity for everything because you're the president, right?

That idea, and you just referenced that, Ree, is something that sort of stems from monarchy in a lot of ways where, you know, of course the king can't be held liable for anything.

He was chosen by God, right?

Yeah.

flawless logic.

But when you're talking about Richard Nixon,

someone who defeated God in like a battle of some kind and ascended to the throne of the presidency, it doesn't make as much sense.

Yeah, that's exactly right.

And White goes on, he says, if what the court says is true, White starts to attack the majority and the concurrences and their justification for extending absolute immunity this far, extending immunity to the office of the president.

So White says, you know, this decision then leaves no accountability whatsoever.

If just being the president, holding the office of the president means you have absolute immunity, then there's no room for accountability for the president in the law.

Well, if the Constitution implies.

Right.

It doesn't say it.

Right.

But it implies that he's absolutely immune.

Yeah.

Until reading this opinion, I didn't realize how much the Constitution implied.

Right.

Apparently quite a bit.

And so White says, look, like you have this weird separation of powers argument.

We should actually be analyzing separation of powers based on if like the liability created or the limit imposed on the power of the president, if that actually presents an obstacle to the president performing the duties required of them by the Constitution.

So like take this lawsuit, for example.

If Fitzgerald was allowed to sue President Nixon for illegally firing him, does that actually present a separation of powers problem?

Would Richard Nixon have been limited or prohibited from doing something that the Constitution requires of the president?

No.

So this isn't a separation of powers problem, according to White, right?

And then White kind of ends in his dissenting opinion on another thing that this opinion kind of misses and miscalculates.

He says, quote, the majority may be correct in its conclusion that a rule of absolute immunity will not leave the nation without sufficient protection against misconduct on the part of the chief executive.

Such a rule will, however, leave Mr.

Fitzgerald without an adequate remedy for the harms that he may have suffered.

Right.

So, yeah, you can say, like, the rule of absolute immunity,

the president still isn't going to have too much power.

It's okay.

We still have separation of powers.

What about Mr.

Fitzgerald?

Right.

You have not addressed the legal harm that this person has suffered, right?

In being illegally fired.

You know, Justice White is just just like, that's not adequate.

It's not adequate just to say that absolute immunity doesn't give the president too much power, right?

Because there's a person who is potentially legally harmed by the president here, and we're saying the law does nothing for that person.

So this is interesting.

There's another dissent.

Like I said, Justice Blackman writes a dissent, barely three paragraphs long.

It's just interesting.

He joins the Justice White dissent in substance content, right?

Agrees with Justice White's dissenting opinion.

Blackmun writes separately just to say something that he's like,

this is interesting.

Blackmun doesn't like how this case got to the Supreme Court.

He thinks it shouldn't have even been accepted or taken by the Supreme Court.

And here's why.

The majority, I have no idea about this.

Yeah, me neither.

The majority buries this in a footnote.

The majority puts in a footnote.

that, quote, shortly after petitioner, that's President Nixon, shortly after President Nixon filed his petition for cert in this court and respondent, Mr.

Fitzgerald, had entered his opposition, the parties reached an agreement to liquidate damages.

Under its terms, the petitioner Nixon paid the respondent Fitzgerald a sum of $142,000.

In consideration, Fitzgerald agreed to accept damages of $28,000 in the event of a ruling by this court that petitioner Nixon was not entitled to absolute immunity.

So Blackmun is just saying like, whoa, whoa, whoa, whoa, whoa.

They settled this.

They settled.

This case is already done.

But if you're not following that back at home, they settled for $142,000, but then they made a side bet.

Right, yes.

Yes.

So that if Fitzgerald wins at the Supreme Court, he gets another 28 grand, which is one of the wildest things.

I've never heard of anyone doing this.

No.

Right.

Yeah.

So it was number one, they've already fucking settled.

There's no question for us to answer answer here.

Blackman's like, why are we deciding that the president has absolute immunity on a case that's already done?

There's no question.

And then number two, Blackman's like, they bet on the results of this case.

Yeah.

It's so bizarre.

It's incredible.

It's so bizarre.

And I kind of respect it.

From their perspective, it sort of makes sense.

They're like, let's get.

most of this out of the way, but you know, whatever.

We still got a little bit of skin in the game here.

Right.

They agreed on a payout, and then we're like, I'll pay you more if you win.

Right.

Rather than having 170K ride on the Supreme Court, we'll have 28K ride on the Supreme Court and 142K you get straight out.

It's bizarre.

And it turns out, also, I think it's important.

Blackmun points out that they weren't aware of this when they accepted Serciorari.

Right.

They agreed to take the case.

Yes.

And so he's like, we should have dismissed this as improvidently granted, which is what the court does when they're like, we shouldn't be hearing this case.

And this is, as Peter has said, the seminal case, unprecedented immunity.

Still the controlling case was essentially done to settle a bet between Richard Nixon and a guy he fired of $28,000.

Damn it, Rules.

Yeah.

So that Blackman dissent doesn't have much to do with immunity doctrine.

It's not about anything other than like, hey, guys,

why aren't we talking about this?

This needs to be in the fucking record.

Somebody's got to say this.

Yes.

In the body of an opinion.

Right.

How fucking stupid this is.

Right.

So props to Blackman.

Yeah.

Yeah.

Okay.

Let's take a break and then we'll come back.

And we're back.

All right.

So some big picture thoughts.

Sometimes we do these cases where the right decision is super obvious.

I actually think presidential immunity is a really weird subject where there aren't a lot of clear answers.

Again, there's nothing about it in the Constitution.

And yet I think it's sort of common sense that you need something like this in order for the government to function properly.

Like, that basic argument, I think, is more or less true.

If presidents or other government officials can just be sued for everything they do in office, it would be a huge burden, basically make doing the job impossible.

There's like some level of implied social contract at play here, where we elect someone to office with the understanding that we are granting them a lot of power and responsibility.

And if they fuck up, we don't sue them.

We use democratic channels to replace them or check their power, et cetera, et cetera.

If you could sue the government for every little policy in practice, nothing would work, right?

You need immunity in order to allow for the smooth operation of government.

But that creates a problem because presidents do in fact do illegal stuff.

Yes.

Yep.

All the time, as it turns out.

They are all horrible demons from hell.

That's right.

And if the only downside for committing crimes is that they might lose an election or whatever,

that almost seems like the same thing as there being no downside.

So there should be a clear framework for holding them accountable, right?

But when, right?

Can't be all the time because that would make governing impossible.

Can't be never because then presidents become little tyrants.

And that's what the majority and the dissent are fighting about, right?

The majority is saying presidents can never get into trouble as long as they're doing president business.

And the dissent is saying, well, that's pretty stupid.

The president like fully knows he's committing a crime, that feels like it should be illegal.

But I do want to point out that this entire discussion is happening like outside of the realm of moral reasoning,

right?

Like there's really no moral reason why a president should be immune from liability, which leads to this discussion feeling a little bit absurd sometimes because it's a discussion about legal responsibility that's almost completely detached from moral responsibility,

which is sort of like not, not, it's not our usual MO on this podcast to talk about those things as wholly divorced, but that's sort of just how this immunity doctrine functions because it's a practical band-aid on a really weird logistical problem.

Yeah, yeah, exactly.

Any society at scale sort of has this issue of you're giving power to individuals and there's like some level of social contract involved.

And a lot of times it's all done via like implied contract, right?

Norms.

Right, right.

Speaking of complete detachment from moral responsibility, folks.

Oh, yeah.

Should probably talk about our boy.

Big Donald Trump.

Dangerous Donald Trump.

Yeah, we do have a 2024 relevant example here.

Yeah, that's right.

I think.

Obviously, we mentioned it at the top, and I'm sure you were wondering, well, what does this mean for old Donnie Trump?

Is he going to wriggle out of this one?

And when you say that, you might not even know what this one is because there are, in fact, six cases against him.

There are two state civil actions.

There are two state criminal actions.

And there are two federal criminal actions.

So I'm just going to walk you through them real quick so you can understand how immunity interacts with all of them.

And Trump is currently making the arguments, right?

to the Supreme Court that he is currently immune from criminal prosecution based on, in part, this case, Nixon v.

Fitzgerald.

Yes.

That's right.

So starting with the civil cases, since those are the most on point, there was the defamation case, Eugene Carroll, in 2019.

She accused him of raping and sexually assaulting her, and then he subsequently defamed her.

That's while he was president.

She sued him for defamation.

He filed a motion to dismiss in January 2020, where he did not mention immunity.

And then he did bring up this case in January 2023, saying, Hey, you know, I was sitting president at the time.

Of course, I have to respond to allegations.

So, Nixon v.

Fitzgerald, I'm absolutely immune.

And the court said, you waived it, buddy.

Sorry.

You can't wait three years.

You had to bring that up before.

Yeah.

Yeah.

You can't wait three years to make this argument.

It's a waivable argument and you've waived it.

He got a judgment for $5 million.

After that, he defamed her again.

She sued again

and got another judgment against him for $83 million.

So, no immunity there because his lawyers suck.

It was actually a colorable argument.

I wouldn't say a good one, but it was plausible.

Yeah.

The point being that although the sexual assault happened way before he was president, the defamation occurred while he was president.

Right.

And that mistake cost him $90 million.

And that was an official act of the office, was his argument.

Defaming this woman.

Yes, that's correct.

Defaming someone and then being like, I'm doing this as the president, by the way.

This is not Donald Trump speaking.

This is the office of the president.

But that argument was handed to him in this case.

That's right.

Like, right?

Like, Nixon fired a guy illegally because he didn't like what he said because he didn't like that he was a whistleblower because he didn't like that he criticized the U.S.

Air Force.

Well, to be clear, though, the distinction is that Nixon.

can do like hiring and firing for the government in his role as president, whereas part of your job as president is not defaming your sexual assault victims.

Ladies, who you sexually assault.

That's the argument that it doesn't apply.

That's right.

The other civil case, also in New York, an action brought by Attorney General Letitia James for falsifying certain statements to banks in the course of getting loans.

Since this was all business stuff and Trump organization stuff, it's outside the scope of Nixon v.

Fitzgerald.

And he lost that case.

He got fined $350 million with pre-judgment interest.

That's more more like $460 million.

He also lost control of his company for three years, and he cannot take out any loans from any organization doing business in New York.

He doesn't need to.

Get fucked.

You just sell those sneakers.

Yeah, that's right.

That's right.

The Saudis, they gave Jared $2 billion.

Why don't they just give him another half billion, right?

It's half Saudis, half sneakers.

Income streams right now.

There is a Georgia case, a RICO case brought by the district attorney in Fulton County around the city of Atlanta.

And folks, it's going great.

Trump has raised Nixon v.

Fitzgerald as one source of immunity in that case and claimed he is immunity from criminal prosecution for his acts as president.

That case is about you know, the fake elector scheme and January 6th and the coup.

The immunity claim has not been litigated yet because that case has kind of hit the breaks while they try to figure out whether the DA was sleeping with a private attorney she hired to be co-counsel and then maybe picked particularly complicated and difficult charges to bring in order to justify paying this boyfriend lots and lots of state dollars.

That's what we call a rott row.

Whoops.

These fucking schlubs get

all the cool jobs, all the big money.

Let me in the game, you know?

Put me in charge of one of these.

Drag me in.

There's like 30 of these actions against Trump and there's more that you could bring.

Just give me one.

Joe Biden, please.

Give your boy a chance.

If that case does go forward, another thing you might be worried about is him getting pardoned.

Actually, in Georgia, it's difficult to pardon someone.

Under current law, the governor doesn't do it.

A board does it that's appointed by the governor, but still, and only after you've served five years of your sentence.

So, obviously, they could change that.

But on the other hand, Trump lost Georgia, and they currently have two Dem senators.

So, I don't know how eager state officials will be to go to the mat for him.

Then we have the New York state action, which is about falsifying business records in relation to hush money payments.

He made to a porn star in the run-up to the 2016 election.

Way back, way back, we discussed this case on Mike Dikta

seven years ago.

Oh my God.

Pretty incredible.

No real immunity attaches here because the hush money payments predated his time in office and the conduct that occurred while he was in office, the repayment to his lawyer that the falsifying business records are all based on came through his organization.

So no real good argument that this is like any sort of presidential action.

That's going forward.

That's scheduled to start March 25th.

And falsifying business records is, from my understanding, district attorneys in New York's, they're bread and butter.

Like they do this stuff all the time.

So very good chance, I think he's going to get convicted.

Yeah.

We're excited.

And again, I would love if Eric Adams is listening, let me be the guy to arrest him.

I got to move back to New York just to get into jury duty, man.

Kathy Hochl sucks, but she will not pardon Donald Trump.

Do not worry.

So there is jail on the table for this because they are bringing a felony falsifying business records charge because it's being used to cover up other crimes, the election-related crimes.

Two federal cases, both brought by special counsel Jack Smith.

One of them, the documents case.

No immunity because this is all post-presidency stuff.

This is he stole documents and secreted them off to fucking Mar-a-Lago after he was president and then was like, I'm not giving them back.

You cannot have them.

And the government was like, we know you have them.

And he's like, you can't fucking have them.

I'm locking them in this bathroom.

Fuck you.

So no immunity there, but there is a second type of immunity, a little heretofore unknown immunity, which is.

I appointed a hacky judge and she thinks I'm her favorite special boy immunity that he seems to be enjoying with this case judge eileen cannon is throwing it to him as hard as she can still no guarantee that he gets off on it but uh oh he gets off on it all right

stupid i'm not laughing at that stupid

and of course nikki haley has said she would pardon him so god last but certainly not least drum roll please the big one

the january 6th case which is well underway conspiracy against rights and conspiracy to defraud the United States.

Don't forget obstructing a proceeding.

Oh, right.

And conspiracy to obstruct a proceeding.

This is the big one.

That case was scheduled to start in early March, and it has been delayed to litigate this issue, presidential immunity.

Trump is arguing that he tried to stage a coup.

as part of his duties as president.

And the courts have to be like, well this hasn't been really discussed before so let's consider this yeah can that be the case and so far at the time of this recording all the courts who have weighed in have said no you are not immune it's led to some fun discussions like dc circuit court judges being like to trump's lawyer so Donald Trump could assassinate a political rival and not face criminal prosecution and the guy being like, yes.

Yeah, that's what follows from this.

Yeah.

Yes.

Now, their theory rests in part on a lot of the policy considerations out of Nixon v.

Fitzgerald.

They also are hanging a lot on a little part of the Constitution called the Impeachment Judgment Clause, which describes the implications of being impeached and basically says you can't attach any criminal penalties to impeachment.

You can just remove someone from office and disqualify them from future office, but

are still nevertheless subject to criminal prosecution thereafter.

And Trump is arguing what that means is actually successfully impeaching someone is the first step.

You have to do that before you criminally prosecute them.

Yeah.

So Trump is arguing that you have to go through the impeachment process before you bring criminal charges.

The great irony here is that right after Trump left office in January 2021, Congress brought articles of impeachment.

Of course, course, he was impeached, but he was not convicted in the Senate.

At the time, Trump's argument was, you can't impeach me.

I've left office.

The proper course is to press charges criminally.

You need to bring a federal case against me.

Now someone has brought a federal case against him, and he's like, oh, no, actually, it has to go the other way.

You have to go through the impeachment process fully first, right?

You got to do impeachment,

which has been brought up by judges to his lawyer, which is fun.

And there's one thing I want to reiterate.

Nixon v.

Fitzgerald says you are immune if you are acting within the official scope of your office, right?

If you're doing an official act of the presidential office.

And again, there's a big gray area here about what an official act is.

Now, it wasn't really an issue in the Nixon case because terminating someone who works for the federal government is sort of obviously within the scope of a president's job.

But doing a coup

is sort of less obviously within the scope of a president's job, right?

Right.

More gray area.

Doing a whole fake electors scheme to undermine the electoral college, harder to argue that that's an official act.

And so that's the crux of the argument there, right?

There's a lot of these little novel legal theories floating around, but that's the heart of the issue.

This has led to some fun stuff where like, because there's all these policy consideration discussions and, you know, Trump is like, if you can criminally prosecute a president, then everybody's going to get criminally prosecuted.

And presidents are going to be so worried and their behavior is going to be chilled.

And so like the district court had this nice little line where she wrote, indeed, the possibility of future criminal liability might actually encourage the kind of sober reflection that would reinforce.

rather than defeat important constitutional values.

Yeah.

If the specter of subsequent prosecution encourages a sitting president to reconsider before deciding to act with criminal intent.

That is a benefit, not a defect.

This is where we are.

Yeah.

It's so obvious.

Yeah, we maybe as a society want the president to stop and think, is my next activity going to be criminal, right?

I personally would like the president to think about those things.

I think that's a good thing.

It's a good choice.

Sure.

Yeah.

It's not even like

if you want to commit crimes and you're the president, it's so easy.

War crimes are basically functionally legal in the United States.

100%.

100%.

Is there any question?

Right.

Who's the last president that wasn't a war criminal?

Right.

Right.

The only thing that you can't do

is try to overturn an election illegally.

That's really basically it.

Like you have so much freedom to do crimes as a president that to actually get busted and be in court for doing one of them, it's just incompetence is what it is.

It's embarrassing.

You can look at the documents case and it's like the years, years of going back and forth being like the government.

And he wasn't even a president.

He was a former president at this point.

The government being like, just give us the fucking documents back.

And meanwhile, he's like.

recorded on tape showing these

two people and being like these are secret these are classified and i'm never giving them back i'm keeping them in this bathroom i could have declassified them and I did it.

He's just showing war plans to Kid Rock.

Like, this.

What the fuck, man?

This is like...

Yeah, you can get away with so much.

So much.

You can straight up murder American citizens.

Obama, the very last president, did it.

Yeah, droned a la lock.

Dude, if you don't like someone, just wait till they're in Europe and just hit them with a double-tap drone strike and no one's going to do shit.

Exactly.

Exactly.

It's so easy to commit crimes when you're a president.

The absurdity of almost all of these cases is that compared to the sort of standard crimes of an American president, they're nothing, right?

Donald Trump's document case doesn't hold a candle to what Kissinger and Nixon did in Cambodia.

You know, the expansion of the drone program was worse than that.

The only thing that Donald Trump did that he really needs to be disciplined for is January 6th, the attempted coup.

It really is wild that he managed to find the one thing.

You know what I mean?

Yeah, it's pretty crazy.

I think if he hadn't run again, they might have considered not even

then.

Like if he just went away, like just fucking go away and be rich and evil.

If he just gave the documents back and just quietly went away, they would have been like, thank fucking God, we don't have to.

Don't do personal deals with Saudi.

I don't give a fuck.

Just go enrich yourself.

Yeah, but no.

Right, right.

Like a normal, evil person.

Yeah.

Yeah.

So just kind of summing it up, if we're bringing it back to the doctrine of absolute immunity, immunity for the president, Trump is arguing that he is immune from either lawsuits or criminal prosecution based in part on Nixon v.

Fitzgerald, but only in the cases where he's accused of doing something while he was in office, while he was the president, right?

Presidential immunity does not extend to a former president or for things you're alleged to have done before you were the president.

And all of what we're talking about here, right, is like how we hold government officials accountable.

Government official, singular.

Yeah, this government official.

Yeah, one in all government.

We're engaged in a grand experiment.

What if we do hold a government official accountable

for a change?

Right.

Torture, Bush, lying to go to war, whatever.

Yeah.

Iran-Contra, yeah,

lying under oath about a blowjob in the Oval Office.

Don't worry about it.

But we're going to do it.

We're going to see how it goes.

I'm cautiously optimistic on January 6th on the conspiracy against rights case as well.

I feel good about it.

So obviously the two civil cases are both done.

So those are rear view.

I mean, there's appellate process or whatever, but that's not really too important right now.

The documents case is being delayed effectively by Eileen Cannon, his hack judge.

So that likely will go well past the election, as far as I can tell.

And we can expect if Trump wins for that to cease altogether on many different grounds, like the execution of Jack Smith for treason,

amongst others.

The Georgia case, like I said, that one has sort of ground to a halt because of the scandal.

The New York case is starting at the end of March and should wrap up in a few weeks, maybe

a month, a month and a half, I don't know.

So by the summer, I think that'll be done.

Obviously, then there will be sentencing and appeals and all that, but we will know if he's been convicted of crimes, I think, by the summer.

If the Supreme Court denies CERT on his immunity claim in the January 6th trial, I expect that to go to trial in mid to late May, probably.

And the special counsel said they expect their case to take six to eight weeks, and then there's the defense.

So I would think probably we'll get some clarity on that by August before the convention.

And then, of course, if he's convicted, there will be some delay and then there will be sentencing and appeals and all that.

But there's a chance he will be convicted in both state and federal court.

before he's even formally nominated at the Republican National Convention.

That's not outside the question.

If the Supreme Court does does take up his immunity case, whether or not they side with him, that will probably be sufficient to delay it, at least until the fall.

In which case, in theory, he could be on trial during the general election, which would be interesting, to say the least.

Being convicted is not disqualifying.

He could even run from prison.

My boy Eugene did it.

That's right, Eugene Debs.

We've already discussed this.

Tragedy and farce.

100 years apart.

Eugene runs from prison.

Socialist hero, Donald Trump.

Yes.

Doing it again.

Donald Trump winning from federal prison, pardoning himself from federal prison and walking out a hero to a massive crowd will.

Yeah.

It would be the end, I think, of what we euphemistically call the American experiment, right?

The world's oldest democracy would be over.

Yeah.

I think.

That's a fair statement.

And then, like, what do we do with the podcast?

Do we sort of just pivot into

like something that's a little, a little more general politics or do we wrap it in order to avoid execution?

I don't know, but I would have to consider moving to Europe.

Yeah.

I am too closely associated to a Palestinian organizer to feel safe.

I would also recommend Rhiannon move to Europe or at least Canada.

Yeah, Europe ain't nice to us right now.

They're going to kill Michael Hobbes before me.

So that's my warning.

When I find out that Hobbes got it, I'm like, ow, I'm off to Copenhagen.

I have like one last big picture thought, which is immunity for presidents is, of course, one of many different types of immunities afforded to government officials.

If you've followed discussions about police brutality, you know that cops get qualified immunity.

Rhea, you mentioned like lawyers and judges get immunity for their actions.

Elected representatives of all stripes are immune for what they do in the course of their jobs.

This is all basically justified by the same analysis, right?

We need these protections for public servants in order for the government to function properly.

But built into that is a trust that our public servants will, for the most part, do the right thing and act in good faith.

If they don't, if they abuse their power, the whole dynamic starts to fray.

Exactly.

Suddenly, the immunity doctrines aren't serving the public interest.

They're being leveraged against it, right?

You can see this playing out very clearly with cops who have basically turned qualified immunity into a blank check to brutalize people.

And now here you can see it with presidential immunity.

When it protects Nixon, when he like lays off someone in the Air Force, sure.

It's helping facilitate normal governance.

But if it protects Donald Trump when he tries to overthrow the government,

I just don't think that that's so great.

You know what I mean?

I just don't feel like it's that good.

It feels like perhaps the whole underlying concept

is being turned on its head.

You know, the point of this is not supposed to be to insulate powerful people from consequences.

But when the social trust starts to wane, when the institutions start to teeter, that is what it becomes very quickly, right?

A mechanism for protecting shitty, powerful people from facing any consequences for their various misdeeds.

Yeah.

Yeah.

Suddenly you live in a dog shit country, country, right?

With a corrupt government that does whatever it wants because there's no legal accountability.

We've talked about it a bunch on the podcast, but we've probably not said it super recently.

But, you know, the Supreme Court has so much to say about separation of fucking powers in this opinion.

You know, we've talked about how like the other side of separation of powers is checks and balances.

The Supreme Court is ostensibly, supposedly structured the way it is in this country, right?

Lifetime appointments, et cetera, so that they can hold the executive branch accountable in ways that don't make them vulnerable, right, to retaliation from the executive branch.

And yet, yet again, right, we see this with how the Supreme Court treats police power in the qualified immunity cases and here and with standing cases and all these sort of like procedural cases where the Supreme Court just decides you cannot get into court to hold somebody accountable for the legal harm that they have done to you.

Here, we see the Supreme Court absolving that responsibility in upholding and extending legal accountability, right?

The Supreme Court says, nah, we're not going to do that.

We're not going to do that, right?

And it has me thinking a lot about the other like fake ways that the majority opinion says that there is legal accountability or there is accountability in other ways in a democracy, right?

Like if you're not happy with what the president is doing, then next time don't re-elect him, right?

Like there's accountability there.

Government officials don't have to be elected.

You can choose somebody else for office.

It's such a like blow-off argument,

easy thing that they can just say, like, oh, yeah, remember you have this.

It's fine.

But, like, never that like our electoral system is deeply fucked, right?

Yeah.

Every lever that we potentially or theoretically should have in our democracy to hold government officials accountable,

the Supreme Court has fucked with in one way or another.

Or or just like our democratic system is failing in all of those like good governance, effective accountability ways, right?

And so it's just such a cop-out.

I hate that shit that they're like, you don't have to be able to sue President Nixon.

You have all these other ways of holding him accountable.

It's like, those are fucking fake too.

Like, be real about it.

You were unjustly fired.

Just organized 400,000 of the dullest, least politically engaged swing voters across six swing states in three years to vote him out.

Okay.

Yeah, I'll get right on that.

Arthur Fitzgerald will get right on it.

Yeah, exactly.

Oh, my fucking God.

The one thing we glossed over, but I honestly think is worth circling back to, is if you take the Donald Trump position, which is basically that everything he does in office is okay no matter what it is, various people brought up that, like, well, that just means you can kill your political opponents, right?

And then some law nerds have actually responded to that by being like, well, but then you might get impeached.

Which, first of all, is not even true, because you can just kill the senators and congressmen who are trying to impeach people.

You don't even need to do more than one or two before the rest are like, hmm, maybe not.

But even if it were true, the consequence is being removed from office.

Who gives a shit?

That's not a real consequence.

Almost everyone is not president.

That can't be the consequence for doing crimes.

Right.

He defamed her.

He fired that guy, right?

Like, it doesn't matter two, three, four years later if he loses the election, right?

What about the harm that is fucking done?

You got to remedy that.

You got to have a remedy.

Yep.

Anyway, I've been spending most of this episode trying to think of a joke that's like presidential immunity is the only immune system that Joe Biden has or something like that.

But I can't quite get it to land in my head.

So I'm just going to put the concept out there.

And then maybe if a listener wants to turn that into a

full-throated joke.

We can workshop that.

Yeah, yeah, yeah.

Go ahead and tweet that at me.

Yeah.

Next week.

We are talking about right-wing resistance to the Supreme Court.

We are going to talk about the Texas border standoff between Texas and the feds and how the state of Texas appears to be simply defying the order of the Supreme Court and what that tells us about the conservative political movement and their relationship to the court.

Find us on social media at 54Pod.

Subscribe to our Patreon, patreon.com slash 54pod, for premium and ad-free episodes like next week's episode.

We'll see you next week.

Bye, everybody.

Bye.

5-4 is presented by Prologue Projects.

Rachel Ward is our producer.

Leon Nafok and Andrew Parsons provide editorial support.

And our researcher is Jonathan DeBreux.

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I can't fucking think of what the president does.

Kissing babies and shit.

The State of the Union, all his appointees, and signing laws.

Doing military stuff, maybe, you know, commander-in-chief stuff.

He gets off the helicopter and he salutes the Marines.

He trips up the stairs multiple times.

There's a Secret Service investigation about it.

That's official.

Immune.

Doesn't matter.

If Biden trips on the stairs and then tumbles down into a baby, baby dies.

Immune.

Official act.

Immune.

Official act.