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UnJustified
Final Report Volume 1 | Part 5
00:54:47
Allison and Andy read the first volume of Jack Smith’s final report.
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- [00:01]
Alison Gill
MSW Media. Welcome to Jack the Podcast about all things special counsel. This is the special audio version of Jack Smith's volume one of his final report on the January 6th crimes committed by Donald Trump. And I'm Alison Gill.
- [00:26]
Andy McCabe
And I'm Andy McCabe.
- [00:27]
Alison Gill
Hey Andy, how's it going today?
- [00:29]
Andy McCabe
Really good to be here and good to be wrapping this up. I think. It's been a, it's been a great read, really parsing through it and getting the chance to kind of kick back and forth some reactions to it with you as we go.
- [00:40]
Alison Gill
Yeah. And today we're going to talk more about Jack Smith's defense of the Department of Justice and the investigative process as we start on page 116, subsection C. Mr. Trump's claims of Executive Privilege and here's how it starts. A time consuming investigative challenge that the office faced was Mr. Trump's broad invocation of executive privilege to try to prevent witnesses from providing evidence on a wide variety of topics. Mr. Trump asserted a form of executive privilege known as the presidential communications privilege, a special privilege belonging to presidents that the Supreme Court has found derives from the Constitution's design of the executive branch and separation of powers with respect to 14 executive branch officials. Mr. Trump's repeated assertion of the presidential communications privilege as a basis to withhold evidence required extensive pre indictment litigation that delayed the office's receipt of important testimony and other evidence, including testimony from senior White House staff and executive branch officials, about topics such such as Mr. Trump's knowledge that he had lost the election and the pressure campaign Mr. Trump waged against the vice president to convince him to reject legitimate elector slates. At the January 6 certification proceeding, the courts uniformly rejected Mr. Trump's privilege assertions, seeking to deny the grand jury from hearing evidence from executive branch employees. And then they cite a ton of media access to docketed filings that have to do with this. And they found the courts, they found that the evidence was, quote, directly relevant, important and essential to the office's investigation, as well as unavailable elsewhere. In each instance, the courts determined that the importance and unavailability of that vital evidence outweighed the qualified privilege for presidential communications and ordered that it be produced promptly to the grand jury. And when Mr. Trump tried to delay the investigation even further by seeking to stay orders denying his executive privilege claims pending appeal, district and appellate courts rejected all of them. In so doing, one Court held that Mr. Trump was engaging in an obvious effort to delay the investigation and impede the grand jury from carrying out its constitutional responsibilities and separately observed that staying proceedings risked indefinite delay memorandum opinion from December 2022 here is cited and it's quoted. The court thus declines to further pause the grand jury's constitutionally protected work, particularly in the absence of any reassurance that the former president's delay tactics will cease. Another court concluded Mr. Trump's claim that the impact of delay on the investigation would be nominal was a vast understatement, noting instead that it would be serious and deleterious and would harm the public interest.
- [03:41]
Andy McCabe
The presidential communications privilege covers evidence, quote, that reflects presidential decision making and deliberations and that the president believes should remain confidential. That's a quote from in Ray sealed case from 1997. The law on presidential communications privilege derives from the Supreme Court's decision in Nixon. There, the court recognized a presumptive privilege for presidential communications, which it described as fundamental to the operation of government and inexorably rooted in the separation of powers under the Constitution. But the court held that the privilege is qualified, not absolute, emphasizing our historic commitment to the rule of law, which is nowhere more profoundly manifest than in our view, that the twofold aim of criminal justice is that guilt shall not escape or innocence suffer. Specifically, the court weighed the importance of the general privilege of confidentiality of presidential communications in performance of the president's responsibilities against the inroads of such a privilege on the fair administration of criminal justice, and it concluded that, quote, the generalized assertion of privilege must yield to the demonstrated specific need for evidence in a pending criminal trial. The D.C. circuit has applied the same general standard to grand jury subpoenas. Most of the executive privilege litigation in this case took place in five sealed proceedings between August 2022 and March 2023 concerning the testimony of 14 witnesses in total. In August 2022, before the Special counsel was appointed, the government began to seek evidence from two former executive branch employees of Mr. Trump's, including by issuing subpoenas for testimony before the grand jury. Although the government believed it unlikely that the information that it sought from these witnesses was subject to the presidential communications privilege because it did not concern presidential decision making, in an abundance of caution given the unprecedented circumstances of investigating the former president, the government made certain notifications to determine whether executive privilege would be a contested issue.
- [06:01]
Alison Gill
Specifically, with the district court's permission, the government notified Mr. Trump and the incumbent president about the subpoenas to ascertain whether either would assert executive privilege and identified certain potential topics of of investigative inquiry. The government chose to notify both the sitting and former presidents, even though it was unsettled under GSA whether a former president's view about potential harm to executive branch confidentiality interests could supersede the sitting presidents. The incumbent president responded through the White House Counsel's office that he did not intend to assert executive privilege. Mr. Trump instructed the two witnesses that they should not provide testimony about any privileged communications, and he specifically identified the presidential communications privilege. After the witnesses withheld testimony pursuant to Mr. Trump's instruction, the government filed a motion to compel with the Chief Judge of the United States District Court for the District of Columbia. Given that the investigation focused largely on Mr. Trump's activities as a candidate seeking office, not his official activities as president, the government believed that it was likely that many, if not all, the communications at issue were not subject to the presidential communications privilege because they were not made in the process of arriving at presidential decisions. As the Supreme Court has explained, the presidential communications privilege, quote, is limited to communications and performance of a president's responsibilities of his office and made in the process of shaping policies and making decisions. But the government's position was that the district court did not have to decide whether the communications at issue were subject to the privilege and instead could assume that the communications were privileged and find that the government had overcome any privilege that would apply to presidential communications because it had made a showing of need for the evidence required under Nixon. Under D.C. circuit precedent, to make the required showing of need, the government had to establish that the testimony withheld by the witness or witnesses likely contained important evidence that was not available to the grand jury with due diligence elsewhere. And sidebar, that's a really important note, Andy. And you and I talked about it when, when this, when we learned about this privilege battle later in, or I should say early in 2023. And that's that the government wasn't trying to say that this wasn't privileged communication. The government was saying, yeah, sure, maybe it's privileged. We're not going to fight that battle because it's not been litigated under the GSA case. However, it doesn't matter that it's privileged communication because it out, you know, this need for it in a criminal investigation outweighs the fact, the privilege that is at stake here. And that's what came out in Trump v. Anderson, which is what I thought the Supreme Court was going to do with the immunity case, but did not.
- [08:58]
Andy McCabe
Yeah, it's, that was a really deft bit of lawyering by the special counsel team because it enabled them to, to dodge the potentially much thornier legal fight on the Is it privileged? Is it not grounds, which you could have easily seen that going all the way to the Supreme Court because you'd be like, you'd be defining kind of an area of presidential official duties. Right. Very similar to what we ended up with in the immunity battle.
- [09:26]
Alison Gill
Right. The Supreme Court would want to make another rule for the ages.
- [09:30]
Andy McCabe
Exact. So they dodged that bullet entirely by saying, fine, we'll stipulate maybe it's privileged. Let's for the. Assume it is. For the record, let's move on to the Nixon standard. And under that standard, since we have this ongoing criminal prosecution and need for the information, then, you know, it's. It's. It will get through.
- [09:50]
Alison Gill
Yeah. And that standard, that we can't get this evidence anywhere else was a really big part of this.
- [09:55]
Andy McCabe
Absolutely. Yeah. Yeah. It's an interesting piece there. Okay. After briefing an argument, the district court granted the government's motion to compel. The court found that the witnesses possessed unique and inimitable evidence that was important and relevant to the grand jury's investigation. The court concluded that the witnesses possessed vital evidence for the grand jury, the importance and unavailability of which outweighed the presidential communications privilege in this case. The district court subsequently denied a motion by Mr. Trump for a stay pending appeal. The court of appeals also denied a stay pending appeal and later dismissed the appeal as moot. In the following months, the government filed two more motions to compel testimony from three additional witnesses. The district court granted the motions, making findings with respect to each witness that the government had made a showing of need to overcome the qualified privilege for presidential communications. The district court also denied stay's pending appeals.
- [10:59]
Alison Gill
After the appointment of the special counsel, it became clear, given the scope of the grand jury's investigation and the need to obtain evidence from a number of former executive branch officials, that seeking to compel testimony from one or two witnesses at a time would be inefficient and would unduly delay the investigation. The office therefore decided to consolidate the proceedings to the extent possible and filed two additional motions to compel that covered the remaining eight executive branch officials who had communicated through their attorneys that they would withhold testimony from the grand jury based on executive privilege. The district court granted the motions making findings with respect to each individual witness that, as noted above, they, quote, possess vital evidence for the grand jury, the importance and unavailability of which outweighed the presidential communications privilege. The district court also denied stay's pending appeal, and subsequently the court of appeals denied stay's pending appeals. In both cases dismissed one of the appeals as moot and granted Mr. Trump's motion to voluntarily dismiss the other appeal. So I'm not sure there's. So, you know, we talked about ochonostra. There were eight key witnesses we were following, but there were six others, 14.
- [12:17]
Andy McCabe
Witnesses who fought the same losing battle. And. And they all lost in the exact same way. And, you know, you just, wow, like, add up the manpower hours and court time that it took to litigate all this stuff, and, you know, you got to remember all the attorneys for those witnesses, some of whom are the same people, you know, the same attorneys represent multiple witnesses, all coordinating between each other and of course, with Trump's attorneys. And so this was absolutely a very well coordinated, intentional strategy of manufacturing delay on grounds that they knew were legally dubious.
- [13:00]
Alison Gill
Yeah. And then, you know, my question is, well, why not just immunize everybody right up front? But Jack Smith hadn't made a decision as to whether or not to charge any of these folks. And so he felt that through consolidation and confidence in the fact that he would win these cases, which he did, that that was the way to go. And he still was able to get a trial on the calendar by March 2024, even though you and I thought it should have been January. But. But as it turned out, it. None of that really made a difference in the end with the Supreme Court's immunity ruling. So let's talk about that Section D. But let's take a quick break first. Everybody. Stick around. We'll be right back. All right, welcome back, everyone. We're on page 122. Section D, Presidential immunity. Before this case, no court had ever found that presidents are immune from criminal responsibility for their official acts. And no text in the Constitution explicitly confers such criminal immunity on the president, as set forth below. Prior criminal investigations by the Department of Justice, whether conducted through special prosecutors, independent counsels, or special counsels, had examined whether presidents had violated federal crime, federal criminal law through use of their official powers. And none of those investigations had regard, had regarded former presidents as immune from criminal liability for their official acts. So the office proceeded from that same premise. Soon after the original indictment issued in the election case, Mr. Trump raised a claim of immunity in a motion to dismiss the indictment. The district court denied the immunity motion, and the Court of Appeals affirmed. The Supreme Court, however, vacated the Court of Appeals judgment based on its conclusion that presidents have absolute immunity for core official conduct, that Congress lacks power to regulate at least presumptive immunity for other official presidential acts, and no immunity for unofficial conduct. The court then applied that test to hold that certain conduct alleged in the indictment was immune. While remanding for application of its legal framework to the remaining allegations, the Office responded by obtaining a superseding indictment to comply with the court's decision and by seeking district court rulings that the charged conduct and expected evidence at trial was not shielded by immunity. This section summarizes the chronology of the immunity litigation and key findings of the courts throughout because the immunity litigation unfolded on the public record, this discussion provides an overview. The Office's briefs and judicial decisions contain more detailed analysis.
- [15:47]
Andy McCabe
Subsection 1 Prosecutorial decisions during the charging stage, this Office conducted its investigation against the background of the Department's prior legal determinations with respect to the potential criminal liability of a former president for official acts. The long standing view of the Department was that the Constitution's separation of powers precludes prosecution of a sitting President for official or unofficial acts. But that same legal conclusion recognizes that former Presidents could be held criminally liable for conduct undertaken while in office, and this is from the 2000 OLC opinion. The department's constitutional analysis of the temporary immunity of a sitting president drew no distinction between official acts and unofficial conduct. Consistent with that analysis, former Department of Justice prosecutors had historically investigated presidential conduct based on the understanding that no criminal immunity would bar prosecution if the President had used his official powers to violate federal criminal law. Significantly, no president whose conduct was investigated, other than Mr. Trump, ever claimed absolute criminal immunity for all official acts. During the Watergate investigation, for example, prosecutors examined whether President Nixon was liable for the obstruction of justice conspiracy charged against the Watergate co conspirators. Although President Nixon was not indicted, the grand jury named him as a co conspirator. And in the Supreme Court, President Nixon acknowledged his exposure to prosecution after leaving office. And they quote USV Nixon While out of necessity an incumbent President must not be subject to indictment, for in order for our constitutional system to operate, he is not removed from the sanction of the law. He can be indicted after he leaves office at the end of his term or after being convicted by the Senate in an impeachment proceeding. Similarly, President Ford's pardon of President Nixon rested on both Presidents understanding that President Nixon was exposed to criminal liability. Later, independent counsel Lawrence Walsh and Special counsel Robert S. Mueller III conducted investigations into presidential conduct. Neither investigation reflected the view that presidents after leaving office were immune from prosecution for their official acts, and they quote the Mueller report here analyzing constitutional separation of powers issues and statutory clear statement issues before concluding that the President was not categorically exempt from criminal law for his official acts and counsel for former President Trump stated at his second Senate impeachment trial that declining to convict him on the article of impeachment alleging conduct related to January6 would not place him, quote, in any way above the law because a former president, quote, is like any other citizen and can be tried in a court of law. This office made its investigative and prosecutorial decisions based on the same understanding.
- [19:03]
Alison Gill
The conduct at issue in the election case involved both unofficial and official conduct. Much of the former president's alleged conduct involved actions involved actions in his private capacity as a defeated candidate for reelections seeking to overTurn the result, for example, his coordinated conduct with his personal attorneys, campaign staff, and other private advisors. Such private conduct does not implicate constitutional functions of the presidency. Other alleged conduct, however, did involve the former president's misuse of official authority, including using the power of the presidency directly by exercising his authority over agencies and personnel in the executive branch. In determining to bring charges in the election case, the office therefore examined the former president's amenability to prosecution for that conduct through the lens of two doctrines, the separation of powers under the Constitution and clear statement principles that limit the application of criminal statutes to presidential conduct in certain circumstances. The office concluded that neither the separation of powers nor clear statement principles barred prosecution for the limited instances of official conduct at issue. That determination was consistent with similar conclusions reached by Special Counsel Mueller. After detailed constitutional and statutory analysis, his report concluded that, quote, congress can validly regulate the President's exercise of official duties to prohibit actions motivated by a corrupt purpose and that clear statement principles of statutory interpretation did not apply to preclude application of criminal obstruction statutes to corrupt presidential conduct. Based on the same principles and legal frameworks, the Office's analysis determined that the potential charges conspiracy to defraud the United States, conspiracy and substantive obstruction of justice, offensive offenses, and conspiracy to deprive citizens of voting rights would not entail application of the statutes in a manner that burdened presidential prerogatives and thus the application of criminal law triggered neither clear statement principles nor separation of powers concerns subsection.
- [21:12]
Andy McCabe
2 immunity litigation On October 5, 2023, Mr. Trump filed a motion to dismiss the indictment based on a sweeping claim of presidential immunity for all official conduct during his presidency. After briefing on December 1, 2023, the district court rejected Mr. Trump's claim of immunity, concluding that, quote, the Constitution's text, structure and history do not support the contention that the President is absolutely immune from prosecution for criminal acts performed within his official responsibilities and that Trump no court or any other branch of government has ever accepted such a contention. The court held that a former president, quote, may be subject to federal investigation, indictment, prosecution, conviction and punishment for any criminal acts undertaken while in office, that exempting former presidents from the ordinary operation of the criminal justice system would undermine the foundation of the rule of law, and that Mr. Trump's four year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal responsibility that governs his fellow citizens.
- [22:23]
Alison Gill
The District Court sidebar. I'm really glad they put that Judge Chutkan quote in here.
- [22:29]
Andy McCabe
Yeah. Anyway, yeah, I mean, it's just like, heartbreaking to read this. How could this decision have been on course to be so right and then ended up so wildly wrong? But there we are. Okay, so they go on to say the District Court reasoned that the prospect of federal criminal liability for a former president did not impair the executive's ability to perform its constitutionally mandated functions, either by imposing unacceptable risks of vexatious litigation or otherwise chilling the executive's decision making process, and that it is likely that a president who knows that their actions may one day be held to criminal account will be motivated to take greater care that the laws are faithfully executed. With respect to the possible chilling effect that criminal liability might have on a president, the court concluded that the possibility of future criminal liability might encourage the kind of sober reflection that would reinforce rather than defeat important constitutional values if the specter of subsequent prosecution encourages sitting president to reconsider before deciding to act with criminal intent. That is a benefit, not a defect, 100%.
- [23:42]
Alison Gill
Mr. Trump appealed the district court's ruling. The D.C. circuit heard oral arguments on January 9, 2024. In a telling exchange, counsel for Mr. Trump acknowledged that under his theory of immunity, a president couldn't be criminally Prosecuted for ordering SEAL Team 6 to assassinate a political rival unless Congress had first impeached and convicted that president for the same conduct. Less than a month after argument, the Court of Appeals affirmed the District Court's decision, stating, quote, we cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter. In a unanimous opinion, the court stated that, quote, our analysis is guided by the Constitution, federal statutes and history, as well as concerns of public policy, quote, Relying on these sources, the court rejected each of Mr. Trump's potential bases for immunity, both as a categorical, categorical defense to federal criminal prosecution of former presidents and as applied to this case. In particular, with respect to the case before it, the court stated that, quote, former President Trump's alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government. As such, it, quote, would be a striking paradox if the President, who alone is vested with the constitutional duty to take care that the laws be faithfully executed, were the sole officer capable of defying those laws with impunity. Like the District Court, the Court of Appeals found that the risk of criminal liability chilling presidential action appears to be low and that, quote, instead of inhibiting the president's lawful discretionary action, the prospect of federal criminal liability might serve as a structural benefit to deter possible abuses of power and criminal behavior. And this is a citation from that decision, with the approval of the District court's observation that, quote, every president will face difficult decisions. Whether to intentionally commit a federal crime should not be one of them props based on the safeguards in place to prevent baseless indictments applicable to all citizens. The court similarly found that the risk that a former president will be unduly harassed by meritless criminal prosecutions appears slight.
- [26:06]
Andy McCabe
More broadly, the Court of Appeals evaluation of our system of separated powers led it to conclude that, quote, there is no functional justification for immunizing former presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the indictment because it concluded that Mr. Trump did not have immunity for the crimes or conduct charged in the case. The Court of Appeals did not decide whether every allegation in the indictment constituted an official act. However, the court noted that, quote, because the president has no official role in the certification of the Electoral College vote, much of the misconduct alleged in the indictment reasonably can be viewed as that of an office seeker, including allegedly organizing alternative slates of electors and attempting to pressure the Vice President and members of Congress to accept those electors in the certification proceeding. The court therefore found it doubtful that all five types of conduct alleged in the indictment constitute official acts. In a divided decision, the Supreme Court vacated the Court of Appeals judgment and remanded the case for further proceedings. The Supreme Court weighed the competing constitutional considerations differently than the lower courts. Very differently. That was a sidebar.
- [27:28]
Alison Gill
Yeah. Sidebar. Way to put it mildly.
- [27:30]
Andy McCabe
Wow. While the lower courts and the dissenting justices placed greater emphasis on the rule of law considerations, the majority found that the need for presidents to act, quote, boldly and fearlessly in executing their duties of office was of paramount importance.
- [27:48]
Alison Gill
Yeah. And sidebar, before we take a quick break, that's that unitary executive that they all sort of rely on, while they call themselves textualists.
- [28:01]
Andy McCabe
Yeah.
- [28:02]
Alison Gill
Completely ignoring the text. Right.
- [28:04]
Andy McCabe
Rely on and have been pursuing many of them for their entire professional careers. Decades.
- [28:11]
Alison Gill
Absolutely. And before the break, I just wanted to read this footnote because it's from Justice Sotomayor, who authored a dissenting opinion joined by Kagan and Jackson, and she described the majority opinion as follows. The court effectively creates a law free zone around the President, upsetting the status quo that has existed since the founding. The new official acts immunity now, quote, lies about like a loaded weapon for any president that wishes to place his own interests, his own political survival or his own financial gain above the interests of the nation. 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 now will be insulated from criminal prosecution. Orders the Navy's Seal Team 6 to assassinate a political rival. Immune. Organizes a military coup to hold on to power. Immune. Takes a bribe in exchange for a pardon. Immune. Immune. Immune. Immune. So we're going to continue on page 130 right after this quick break. So stick around. We'll be right back. Hey, everybody, welcome back. We're now on top of page 130. We're continuing in this subsection about immunity litigation. So starting here on page 130, the court reasoned that there, quote, exists the greatest public interest, unquote, in providing the president with the maximum ability to deal fearlessly and impartially with the duties of his office free from undue pressure and distortions. The court found that, quote, criminally prosecuting a president for official conduct undoubtedly poses a far greater threat of intrusion on the authority and functions of the executive branch than simply seeking evidence in his possession, and that threat of a criminal prosecution was, quote, plainly more likely to distort presidential decision making than a civil suit. In responding to the dissenting Justice's concerns that the vast immunity that the Court provided opened the door to lawless behavior by presidents in violation of their duty to faithfully execute the law. The court assessed that a president who uses official power to violate the law was a less likely prospect than an executive branch that cannibalize itself. With each successive president free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next, unquote. The court rejected the lower court's view that established safeguards such as the Department of Justice's long standing commitment to the impartial enforcement of law, a neutral grand jury, the requirement in criminal law that the government must prove its case beyond a reasonable doubt. Courts enforcing existing principles of statutory construction as applied and applied constitutional challenges and certain president specific defenses like the public authority defense or the advice of the attorney general, that would adequately protect a former president charged with criminal wrongdoing. But instead, the court placed greater weight on the risk to the administration of government from excessive caution by a president who might face criminal accountability for official acts, reasoning that, quote, without immunity, such types of prosecutions of ex presidents, for example, over claims of insufficient enforcement of federal law, could quickly become routine, thus enfeebling the presidency through such a cycle of factional strife, unquote.
- [31:48]
Andy McCabe
In conducting its balancing, the majority placed greater weight than did the dissents or the lower courts on the importance of protecting the independence and fearlessness of the president as opposed to the risk that immunity would encourage lawless behavior. And they quote, such immunity is required to safeguard the independence and effective functioning of the executive branch and to enable the president to carry out his constitutional duties without undue caution. And there's several other sites here to other places in the opinion. Ultimately, the Supreme Court ruled that for official powers entrusted exclusively to the president, a president is entitled to absolute criminal immunity and that for other acts, quote, within the outer perimeter of his official responsibility, he is entitled to at least presumptive immunity. Specifically, the court divided presidential acts into three categories. One, core presidential conduct that Congress has no power to regulate and for which a former president has absolute immunity 2, other official presidential acts for which the president has at least presumptive immunity and three, unofficial conduct for which the president has no immunity. Applying those principles to the original indictment, the Supreme Court concluded that Mr. Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with the Department of Justice officials and involving his, quote, threatened removal of the acting attorney General. The court also concluded that several conversations between Mr. Trump and the vice president constituted official conduct, but remanded for consideration of whether the office could rebut the presumption of immunity as to several other allegations involving interactions with state officials, private parties and the public. The court remanded for the lower courts to determine whether the conduct was undertaken in an official capacity or alternatively constituted a private scheme with private actors, as the office contended. The court also added an evidentiary rule to its immunity framework. Official conduct for which the president is immune may not be used as evidence in a prosecution for non immune conduct. The court was concerned that, quote, jurors deliberations will be prejudiced by their views of the president's policies and performance while in office. Justice Barrett joined the dissenters in disagreeing with that rule, noting the Constitution does not require blinding juries to the circumstances surrounding conduct for which presidents can be held liable. Standard evidentiary rules, she explained, are equipped to handle that concern about prejudice from admitting evidence from a president's official acts on a case by case basis. I see no need, she wrote, to depart from that familiar and time tested procedure here.
- [34:50]
Alison Gill
Sidebar the Trump supporters MAGA who read really don't like Justice Barrett for this and several other reasons. Yeah, let's go to subsection 3 here on page 132. Unresolved issues regarding presidential immunity the Supreme Court's decision raises several issues about the scope of presidential immunity that the lower courts and ultimately the Supreme Court, would likely have had to address before the prosecution could have proceeded to trial. The following discussion illustrates some of the issues that the Court's immunity decision left open and that remain unresolved given the required dismissal of the superseding indictment. First, while the Court determined that certain core exercises of presidential power are absolutely immune and gave several examples like the pardon power, power to remove presidential appointees, power to recognize foreign nations, supervision of criminal investigations and prosecutions, it left undefined the full scope of that category. And here's a quote relying in part on the President's responsibility to take care that the laws be faithfully executed to find that his investigative and prosecutorial decision making and threats to remove the acting Attorney General were absolutely immune. And with Barrett concurring, quote, I do not understand the Court to hold that all exercises of the take care power fall within the core executive power. The office's position was that none of the allegations in the superseding indictment implicated core presidential powers.
- [36:23]
Andy McCabe
Second, the Court's decision accorded at least presumptive immunity to all non core official presidential conduct. That holding left unresolved whether at some future point the Court will determine that absolute immunity is required for that category of official acts as well. It also left unresolved the manner of applying its test for overcoming presumptive immunity. That is that the government must show that applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the executive branch.
- [36:58]
Alison Gill
Now sidebar here because that unresolved issue, that's what would have had to go back up to the Supreme Court after Judge Chutkan made her immunity determinations. And the show that applying criminal prohibition would pose no danger of intrusion on the authority and functions of the executive branch left a wide open door for these Supreme Court Justices to strike everything to say, yeah, to just throw the whole thing out on the second swipe. Like, by, you know, with. Let's say they go. He comes and says, hey, I know presumptive immunity. With these conversations with Mike Pence, John Roberts could be like, you know, I really feel down in my heart that that would chill future presidents from making bold recommendations to their Vice president. So you can't. That's. That's immune, and this is immune and stuff like that, because it's, It's. It's a subjective. There's no standard test here. It's a subjectivity to how these Supreme Court justices feel.
- [37:56]
Andy McCabe
It's almost frustrating to hear the special counsel refer to these as tests, because they're not actually tests. If you're familiar with reading a lot of Supreme Court opinions, like, tests are very specific. You can apply them in every case. They're pretty clear. You just put the facts in, and the rule that comes out should be pretty clear. That's not what we have here. And the other thing is, if it had gone back up after Chutkan's determination that some of the indictment, the evidence survives and the indictment goes forward, not only could it have resulted, I think it would likely have resulted in throwing the whole thing out, it might have also resulted in eliminating that. That presumptive immunity category entirely.
- [38:34]
Alison Gill
Right.
- [38:34]
Andy McCabe
And turning the entire thing into absolute immunity for everything you do for the four years or eight years you're president. So, I mean, in a weird way, we could have actually ended up in an even worse place with the Supreme Court. I think that's always possible. But, um, here we are. Okay. So they go on to say, when presumptive immunity is this conclusive, the majority's indecision as to, quote, whether official acts, immunity must be absolute, or whether instead presumptive immunity is sufficient hardly matters. In its one concrete discussion of that test, the Court described competing arguments about communications between the President and the Vice President about the certification proceeding, noting that the Vice President presides as President of the Senate, not in any executive branch capacity, and that the President has, quote, no direct constitutional or statutory role in the certification proceeding. But the Court stopped short of deciding whether any executive branch functions were in danger of potential intrusion in that settling, and if so, the nature of such functions. It also did not address whether de minimis intrusions would preclude rebutting the presumption and how courts should make predictive judgments about potential intrusions. For example, by looking to history or speculating about future presidential behavior, or relying solely on legal materials following the remand to the district court, the office argued that with respect to the presumptive immunity test, quote, the analysis should first identify the specific alleged act at issue and then determine whether the criminal liability for the act intrudes on a relevant executive branch authority or function. Taking care not to conceive of the inquiry at too high a level of generality, the office's brief emphasized that this approach recognizes that executive authority has limits, boundaries imposed by constitutional text, the separation of powers and precedent, and that the application of criminal law to the president's official conduct does not per se intrude impermissibly on executive branch authority and functions. With regard to the communications between the president and the vice president, the office submitted that, quote, because the executive branch has no role in the certification proceeding and indeed, the president was purposely excluded from it by design, prosecuting the defendant for his corrupt efforts regarding pence poses no danger to the executive branch's authority or functioning.
- [41:14]
Alison Gill
Yep. And sidebar. This shows Jack Smith's concern that on the second trip up to the Supreme Court, they might throw out the stuff with the vice president. Yeah, but. But he kept it in. And also, you know, it would have been really interesting to see how the Supreme Court ruled on that, given the fact that Clarence Thomas's real good friend, Judge Pryor down at the 11th Circuit didn't let Meadows off the hook for his Fulton county stuff and, you know, to move his case to federal court, you know, he disallowed that on the basis that the executive branch has no function or statutory role in determining the outcome of an election or the certification proceeding. So it would have been interesting to see Clarence Thomas actually be at loggerheads with his his good buddy down there, conservative justice prior at the 11th Circuit.
- [42:05]
Andy McCabe
Basically, every judge in every court to have addressed any aspect of an issue that touches this has been wrong.
- [42:13]
Alison Gill
Yeah.
- [42:13]
Andy McCabe
Basically, that's what the Supreme Court is telling us. They're all, every single one of them's wrong. Okay, sorry.
- [42:20]
Alison Gill
All right, we're at the bottom of page 134. We're going to come back at the top of page 135, but we have to take one last break. So stick around. We'll be right back. All right, everybody, welcome back. We are still in the Presidential immunity section. We're on the top of page 135. And it says third, in discussing the process of separating official from unofficial conduct, the court wrote that the analysis is fact specific and may prove to be challenging the court's discussion of a president's public communications illustrates those challenges. The Court directed that the status of a president's public communication should be assessed through an objective analysis of content, form and context. It also cautioned that most of a president's public communications are likely to fall comfortably within the outer perimeter of his official responsibilities. While stating that there may be contexts contexts in which a president speaks in unofficial capacity, perhaps as a candidate for office or a party leader, the Court's analysis recognized that in principle there is a line between the president's official and non official communications. But the Court gave little detail about when an incumbent president crosses the line between his official role and his candidate role. Sotomayor, in dissenting, said, in fact, the majority's dividing line between official and unofficial conduct narrows the conduct considered unofficial almost to a nullity. Upon remand, the office argued that at its core, the defendant's scheme was a private one and that in proving the case, the office would rely on public campaign speeches, tweets, and other public statements and comments that Mr. Trump made not as president but as candidate for office. Finally, as noted, the Court's decision that the presidential immunity precludes the introduction of evidence of immune official acts even in a prosecution for unofficial conduct left open substantive and procedural questions. In responding to Justice Barrett's disagreement with the Court's evidentiary holding, in which she highlighted her concern about excluding Official act evidence in, for example, a bribery prosecution. And here's the concurrence from Barrett, the Court wrote in a footnote that in a bribery prosecution, of course, the prosecutor may point to the public record to show the fact that the President performed the Official Act. What the prosecutor may not do, however, is admit testimony or provide records of the President or his advisors probing the Official act itself. Those statements create uncertainty regarding which types of evidence of official acts can be used and which cannot. A further procedural issue involved the scope of any interlocutory appeal from the district court's rulings on immunity. The Supreme Court had emphasized that immunity issues should be, quote, addressed at the outset of the proceeding and presupposed that, quote, a district court's denial of immunity would be appealable before trial. While the parties in the District court agreed that whether the superseding indictment states an offense based on non immune conduct would be subject to a pretrial interlocutory appeal, the evidentiary component of the Court's immunity ruling left open the question of whether evidentiary determinations regarding potential immune evidence could be appealed before trial. Further proceedings on remand likely would have provided guidance on this and the other issues described above.
- [45:52]
Andy McCabe
So sidebar. What he's basically saying in this entire section is, it's a mess. It's an absolute and utter unmitigated mess they have to deal with.
- [46:03]
Alison Gill
How can you make immunity evidence, immunity determinations pre trial, like, it's.
- [46:10]
Andy McCabe
Any prosecutor at any time in the future even considering going down this road is going to read this section and say, like, what's the point? You can't do it. You can't use the evidence. If you do, it all goes back to the Supreme Court. They can throw everything out. We can get it even worse standard. I mean, like, it's really daunting.
- [46:32]
Alison Gill
Agreed?
- [46:33]
Andy McCabe
Yeah. Okay. Section 5 conclusion on remand from the Supreme Court's decision in Trump, the district court set a litigation schedule whereby the parties would submit briefs regarding whether any material in the superseding indictment was subject to presidential immunity. The parties were in the middle of that process when the results of the presidential election made clear that Mr. Trump would be inaugurated as President of the United States on January 20, 2025. As described above. It has long been the department's interpretation that the Constitution forbids the federal indictment and prosecution of a sitting president. But the election results raised for the first time the question of the lawful course when a private citizen who has already been indicted is then elected president. The department determined that the case must be dismissed without prejudice before Mr. Trump takes office, and that the office therefore moved to dismiss the indictment on November 25, 2024. The district court granted the motion the same day. The department's view that the Constitution prohibits the continued indictment and prosecution of a president is categorical and does not turn on the gravity of the crimes charged. The strength of the government's proof or the merits of the prosecution, which the office stands fully behind. Indeed. But for Mr. Trump's election and imminent return to the presidency, the office assessed that the admissible evidence was sufficient to obtain and sustain the conviction at trial.
- [48:19]
Alison Gill
And that is the end of volume one. And this is the end of our audio version of volume one. But that's a pretty powerful statement. You know, what I noticed is that that seemed to be the headline all over media. Jack Smith felt he could obtain and sustain a conviction if it weren't for the election. And my very first thought, and I think Barb McQuaid said something about this, too, and Joyce Vance as well, it's like, well, yeah, of course he did. You can't bring an indictment if you don't think you can obtain and sustain a conviction at trial. It's against the rules.
- [48:57]
Andy McCabe
If he didn't think that we would have gotten a report, a very different report a long time ago.
- [49:01]
Alison Gill
Yeah.
- [49:02]
Andy McCabe
He would have come in, done a little investigating and then said, nope, nothing to see here. Just like rob her did. Just like, just like John Huber did. Just, you know, not quite exactly like John. The last John to be a special counsel. I'm spacing on his last name for who.
- [49:26]
Alison Gill
To investigate.
- [49:27]
Andy McCabe
Yeah, the guy who investigated all of us.
- [49:30]
Alison Gill
Oh, John Durham.
- [49:32]
Andy McCabe
Durham.
- [49:34]
Alison Gill
I'm glad you didn't exactly go that way.
- [49:36]
Andy McCabe
He did a lot of investigating for years and years. Brought two cases, lost them both, and then ultimately concluded couldn't go anywhere.
- [49:42]
Alison Gill
He's the example of the rogue prosecutor that I wanted them to bring up in the oral arguments for immunity. Yeah, but, but didn't. And, and, and the example that doesn't work out, rogue prosecutors. You know, Cassetta mayor was like, look, we don't have a perfect system. Sometimes it works, sometimes it doesn't. But there are so many guardrails in place for due process to protect a defendant. Mr. Trump well knows. Right. I mean, look, he's walking free.
- [50:10]
Andy McCabe
So, you know, the simple fact that the thing that they're worried about happening has never happened, despite the fact that prior to their decision, no one ever believed that presidents were subject to absolute and total immunity.
- [50:25]
Alison Gill
No. And as a matter of fact, I think Jack Smart.
- [50:28]
Andy McCabe
Right. The world assumed you could be charged for things.
- [50:32]
Alison Gill
That's why president didn't break the law.
- [50:33]
Andy McCabe
They never did.
- [50:35]
Alison Gill
Right.
- [50:35]
Andy McCabe
How dangerous a prospect could that possibly be? How chilling could that idea possibly have been on future administrations?
- [50:43]
Alison Gill
No, And Kagan brought that up, and I think it was echoed by, by Jackson and Sotomayor as well. In Sotomayor's dissent, writing for the minority. She, you know, she, she was like, look, there's, there's, it's all. No, presidents haven't committed crimes because they knew that they could be prosecuted for crimes.
- [51:02]
Andy McCabe
Right.
- [51:03]
Alison Gill
They knew with, with Ford's pardon of Nixon, like, why would you pardon. You know, so it's long history and very terrible decision. And I, I'm glad that Jack Smith spent a quarter of this report talking about the investigative hurdles with presidential communications privilege and the 14 witnesses and the Twitter stuff and the, and, you know, interestingly that Elon Musk took the. Bought Twitter just a couple months before that whole thing went down. But, you know, all of that process is. And what the Supreme Court decided, Jack Smith is telling us, like, hey, look, if you ever want to prosecute a president again and There will be instances because now it's, you know, there's going to be criminals trying to become president. You're going to need to fix some of these things first. Otherwise, no matter who you put in there. I think I said something like, you can make John Wick the Attorney General. He's not getting an indictment. He's not getting a trial. I mean, yeah. So it's, I think it's a warning for us to, to look at our system, federal criminal prosecution, as it pertains to presidents, future presidents and former presidents, because if we don't overturn the immunity decision, etc. Etc. We'll never be able to prosecute a, a criminal president ever again.
- [52:28]
Andy McCabe
Yeah. Yeah. So we, in addition to kneecapping this case, they left us with kind of a time bomb, a judicial time bomb, judicial and presidential time bomb. So we will all have to endure it whenever and however that happens. And when it does, the president who willfully violates the law will not be held accountable.
- [52:53]
Alison Gill
Yeah. All right. Well, thank you so much for listening to the audio version of volume one of Jack Smith's final report, the crimes against Donald Trump for his role in trying to maintain power and disrupt the peaceful transfer of power on January 6, 2021. We appreciate it. Andy and I will be back in your ears this Sunday with a brand new podcast called Unjustified. It will be in your Jack podcast feed. And those who are patrons to the Jack Podcast and Daily Beans, you will be a patron for this upcoming podcast. You don't have to do anything other than see it pop up on your phone and listen to it wherever you get your pods. So we appreciate you listening. It's been, Andy, it's been a real journey and it's been very difficult to have to deal with the consequences and the fallout of the election and these prosecutions not going forward and Donald Trump not being held to account. So I just want to thank everybody for sticking with us, and we'll see you on the flip side. Any final thoughts?
- [53:57]
Andy McCabe
Yeah. Thank you. Thank you for your interest and your willingness to listen, particularly to this reading of the report. I think it's really illustrative of some of the, of what this journey has been right for that team and for those of us who've been following it. And it didn't end in the place that many of us would have hoped, but at least now we know, right? And we understand what the, what the team was thinking, what the special counsel went through, and we take that knowledge into the rest of our understanding and our analysis and our fight for justice. So keep that fight inside you, and we will do everything we can to keep that fire burning with Unjustified. Starting next Sunday.
- [54:39]
Alison Gill
All right, everybody. Until then, I'm Alison Gill.
- [54:42]
Andy McCabe
And I'm Andy McCabe.