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is Bloomberg Law with June

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Grasso from Bloomberg Radio. When

1:03

listing the winners from this term at the

1:05

Supreme Court, former President Donald Trump

1:07

stands at the top of the list. In

1:10

a historic 6-3 ruling, the

1:12

court's conservative majority rule for

1:15

the first time that former

1:17

presidents have broad immunity from

1:19

prosecution. While the court didn't

1:21

grant Trump the complete and total

1:23

immunity from prosecution he sought, it

1:25

conferred enough of a shield to

1:28

all but ensure that Trump won't

1:30

be tried for election interference before

1:32

November. Joining me is Victoria

1:34

Nourse, a professor at Georgetown Law and

1:37

an expert on separation of powers. In

1:40

dissent, Justice Sonia Sotomayor wrote that

1:42

the president is now a king

1:44

above the law. Do you think

1:47

that's what this decision really leads to? Well,

1:49

I think there are tremendous risks

1:52

posed by that opinion because

1:54

basically the majority

1:57

opinion allows a president doesn't answer.

2:00

the SEAL Team Six question. That

2:02

was Judge Pan who said, what

2:04

if the president ordered SEAL Team Six

2:07

to kill his political opponent? The majority

2:09

does not shut down the fact that

2:11

that would be an official act and

2:13

could not be prosecuted. And that is

2:15

why he's saying that. Can

2:17

you explain broadly what the opinion does?

2:21

The opinion complicates the

2:24

trial by injecting

2:26

this question of official act

2:28

immunity. So most lawyers thought that the

2:30

two main precedents here were the Nixon

2:32

case and the Clinton case. Two

2:35

presidents. One was sued civilly.

2:37

One was in the criminal thing. And in

2:39

both those cases they start out and

2:42

say very emphatically, the president is not above

2:44

the law. He can be

2:46

subpoenaed to be in

2:48

a criminal trial and he has to

2:50

suffer civil justice for what he did.

2:53

But the court went off on a

2:55

different case called Harlow, which is a

2:57

civil case and involving President Nixon. And

3:00

that says that you can't sue a

3:02

president civilly for his official, for damages,

3:04

for, you know, an executive order. And

3:07

everyone thinks that's right. But if he's

3:09

an executive order and somehow hurts someone

3:11

or changes their job in the military,

3:13

you can't sue him for that because

3:15

that would just tie up government. You

3:17

know, everyone agrees that's the law. But

3:19

what they did is they took that

3:21

Harlow thing and said that applies to

3:23

a criminal case. And now Judge Chukkin

3:25

will have to hold a hearing about

3:27

what of the acts and the indictment

3:29

are official and what aren't. And

3:32

some of the statements in the majority

3:34

of opinions seem to say that conversations

3:36

with other officials, like the attorney general,

3:38

are absolutely immune. But then what happens

3:40

if you're having a conversation with SEAL

3:43

Team Six or the head of the

3:45

Defense Department? Is that official and you

3:47

can never indict someone if they've done

3:49

something terrible? So it looks like it

3:52

doesn't answer that hypothetical. And

3:54

it's particularly dangerous if you

3:56

have a president like Trump

3:59

who... is always pushing the envelope.

4:01

So if he orders the Defense

4:03

Department to shoot protesters, right, he

4:05

could say that's official. That's what

4:07

people are very worried about. These

4:10

six are supposedly originalists. Is there

4:13

anything in the Constitution or history

4:15

that supports

4:19

this decision? There's certainly nothing in the text.

4:21

The text says that Congress, you know, the

4:23

Founders wanted Congress to be the important body

4:25

here. That's why it's in Article 1. The

4:28

Supreme Court was in the basement of the

4:30

Senate for both 19th century. And

4:32

it's in Article 3, not Article

4:34

1. So the text tells you what's the

4:36

most important. And they have immunity for things

4:39

they say because the King in Britain used

4:41

to, you know, throw the members of Parliament

4:43

and members of Commons in jail. So no

4:45

one wanted that to happen. But there is

4:47

no text on immunity. Now, the historical case,

4:49

which they decided, you know, there's another case

4:52

called dance that was decided in the last

4:54

few years, which is about whether Trump

4:56

could be subpoenaed in this Mazar's accounting

4:58

firm case. And they said yes, because

5:00

they relied on the Burr case. And

5:02

they'd held that in the Nixon case,

5:04

too. And so everyone thought,

5:07

well, if you can subpoena him, and if he can be an

5:10

unindicted conspirator as in Nixon, then

5:12

of course, if he's a

5:15

former president, he can be subject

5:17

to criminal sanction. Is there anything in history?

5:19

No, this has never happened So

5:22

how did they come up with this?

5:24

Where did they get this from their

5:26

own precedent? So basically, they took this

5:28

case called Harlow, which was a guy

5:30

who sued Nixon because of what Nixon

5:32

did to him. Nixon had some, you

5:34

know, sort of aggressive policing of the

5:36

executive branch and individual, and he treated

5:38

this person terribly. And so the person

5:41

sued. And the court said,

5:43

well, yes, he treated you poorly. But

5:45

if anyone could sue the president for

5:47

damages, then it would stop

5:49

government. Right. And that's true

5:52

throughout the government today, you can't like sue

5:54

the justice department because you don't like them

5:56

or with their policies. Let's just the general,

5:58

there are many different doctrines of government. a

6:01

stop all immunity that apply throughout the government.

6:03

Like you can't easily see the

6:05

government, and particularly for policies you don't want. So

6:08

that's about money damages, but this is about

6:10

a crime. There's a big

6:12

move there. And so basically, Roberts

6:15

made this all up. Talk about

6:17

making up legislating. I

6:19

mean, I find it very odd,

6:21

because it also is not very clear

6:23

about how you're actually gonna do this.

6:25

Now the truth is that if people

6:27

are worried about this, they shouldn't be

6:29

too worried. They shouldn't be worried

6:32

about the rule of law, because they decide 40 cases a

6:34

year that no one cares about, and they're just, whether it's original

6:36

or not, it's within the realm

6:38

of reason in my view. This

6:40

term, however, they decided about six cases that

6:42

are gonna scare the American public. And they

6:44

show no interest in actually being statesmen

6:47

or calming the waters, which is disturbing

6:49

to me as someone who studies the

6:51

whole conversation. But they relied on precedent. I

6:53

told you that's civil case, and then they applied

6:55

it to a criminal case. But all

6:57

their application of the doctrine, so they

7:00

got this official immunity once they adopted

7:02

from the Harlow case, and they apply

7:04

that to criminal cases, which is a

7:06

leap there, number one. But then the

7:08

majority opinion is this long discussion about

7:11

the difference between the allegations

7:13

and the indictment of what was official and what

7:16

was not. So they say it was official if

7:18

you talk to your attorney general. Well, what if

7:20

you talk to your attorney general to bribe someone?

7:23

And that was all the discussion in the

7:25

oral argument why it's an American pushback. So

7:27

there are three buckets that they develop, and

7:29

there's nothing in the text of the Constitution that says

7:31

any of this. So one is

7:34

the absolute immunity. So some conversation referred

7:36

to with Bill Barr about, then

7:38

the question is about Mike Pence, and

7:40

that's in this middle ground that they've

7:42

given presumptive immunity to, but it can

7:44

be rebutted. And then there's the stuff

7:47

that, you know, probably private. And

7:49

this is where Justice Barrett did this country

7:51

a great service by noting, as

7:54

the DC Circuit had held, that

7:56

the fake-elector scam was all private,

7:58

even the speech. in

8:01

my view, was private because it was funded

8:03

by the campaign because if they spent federal

8:05

dollars on that, that would be a felony.

8:07

You can't spend federal money on a campaign

8:09

speech. So there are three buckets. We're

8:11

gonna have a big hearing about it. Everyone's

8:14

gonna scratch their heads about this and the

8:16

court is gonna look terrible. You know, I've

8:18

spent my whole life defending the rule of

8:20

law and I'm really sad and I'm kind

8:22

of angry at Roberts for doing this because

8:24

I just think it showed so little sense

8:26

of where the country is. They decided

8:28

a case they didn't need to decide,

8:31

which is imprudent. They could have written

8:33

it very simply. It's really complicated. So

8:35

you know, usually like Brown versus Board,

8:38

it's a very short, delphic thing with

8:40

nine people on it, right? It's hubris.

8:42

It's just hubris and lack of statesmanship

8:45

and understanding they're a part of the

8:47

Constitution. They're not above it. They

8:49

are not. They are part of it. And

8:52

so that hubris is a real

8:54

problem and I think the

8:56

American people, their only option now is

8:59

to make the court a political issue.

9:01

So there are things Congress can do. They can reverse

9:04

local rights. They can reverse a lot

9:06

of these things. So people are gonna have to

9:08

elect people who will actually do that kind of

9:10

stuff if they want it to change because there's

9:12

no way the court will be taxed. FDR

9:14

had 67 votes. Meet Gary. Gary's

9:16

about to become an Einstein in

9:19

an instant. Whoa, Einstein hair. I

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like it. That's right, Gary, because

9:23

you're using Salesforce powered by Einstein

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9:27

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9:31

smarter because you're not just Gary

9:33

anymore. You're Gary empowered by Einstein

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AI. Did you hear that team?

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I'm an Einstein. Oh, can I

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get a selfie? The number one

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actually feels like a break. I

18:00

defend the different realms of politics

18:03

and law and law should move flow. This

18:06

is why progressives don't like me because I'm

18:08

like, no, there's some virtue to moving flow.

18:11

Even Brown, there was virtue in them getting

18:13

to the point where it was ridiculous with a

18:15

guy was sitting outside the classroom, you know,

18:17

and the black guy had to sit two inches

18:19

away from the classroom. I mean, the cases

18:21

had made it, you know, important for the court

18:24

at that point in real life to make

18:26

a general pronounce. But this

18:28

court has not moved slowly and its

18:30

philosophy really isn't coherent. So they're

18:32

taking a modern notion of right that no

18:34

historian thinks existed in 1787. So

18:37

it's really a problem. And one of the reasons

18:40

that the problem is that Fed Soc is

18:42

the only source of information, you know, it's

18:44

a feedback loop over there. So I used

18:46

to, I've appeared there maybe 20 times on

18:49

statutory interpretation of the separation of powers, because I'm one

18:51

of the few women who do the separation powers. Because

18:53

the last time I went there and I was talking

18:55

about the federal stickers, I have a theory about them

18:57

and it's kind of interesting. I think, you know, I

19:00

get a good speech. And

19:02

I made it an aside about President Biden, who

19:05

thought I was in that case because I

19:07

had the federalist papers on my lap reading

19:09

them because I wanted to be an academic.

19:11

And he thought that was very weird for

19:13

a feminine. And they booed him. When I

19:15

said Biden, they booed. That's not a legal

19:17

society. That's some kind of political campaign to

19:20

me. So, you know, it's not a happy

19:22

look for those of us who care about

19:24

the rule of law. The good

19:26

news is there is a new conservative society called the Rule

19:28

of Law Society like Peter Kaiser. All those people I mentioned

19:30

who wrote that brief in the case, they

19:32

told them not to do this. So there is

19:34

an alternative now for students and people who think

19:36

they're conservative. I won't join it because they say

19:39

they're conservative. I don't think that's the rule of

19:41

law. The rule of law is not conservative, it's

19:43

liberal. The rule of law is about consistency. It's

19:46

about certain kinds of reasons. So

19:48

politicians, they just say stuff. They don't

19:50

necessarily have to have good reasons, right?

19:52

Judges have to have reasons that make

19:54

sense to lots of other lawyers

19:57

not to be treated with derision. So. That's

19:59

why I'm sad for the court because the

20:01

American public's just not going to understand this

20:03

and it's going to breed a lot of

20:06

Cynicism in our system just for the time

20:08

we need faith in the rule of

20:11

law. It's work in progress We often

20:13

fail all the time, but this was

20:15

a massive fail the implications of this

20:17

decision Will reverberate

20:19

and keep reverberating. Thanks so much

20:21

for joining me Victoria That's

20:24

professor Victoria Norse of Georgetown

20:26

law and that's it for this

20:28

edition of the Bloomberg law show Remember you

20:30

can always get the latest legal news

20:32

on our Bloomberg law podcast You can

20:34

find them on Apple podcasts Spotify and

20:36

at www.bloomberg.com

20:40

Podcasts slash law and remember to tune

20:42

in to the Bloomberg law show every

20:44

week night at 10 p.m. Wall Street

20:46

time I'm June Grosso

20:48

and you're listening to Bloomberg The

20:54

Hartford understands protecting your business with the

20:56

proper insurance can be a challenge The

20:59

Hartford team can provide coverage to suit

21:01

your industry The Hartford empowers

21:04

mid to large-sized companies like yours

21:06

to help manage risk from liability

21:08

and property insurance to workers comp

21:10

and more Let the

21:12

Hartford help protect what's unique about

21:14

your business learn how at the

21:16

hartford.com Meet Gary Gary's

21:19

about to become an Einstein in

21:21

an instant. Whoa Einstein hair. I

21:23

like it That's right Gary because

21:25

you're using Salesforce powered by Einstein

21:27

AI to connect data predict business

21:29

trends generate personalized content and wow

21:32

customers I do feel a lot

21:34

smarter because you're not just Gary

21:36

anymore. You're Gary empowered by Einstein

21:38

AI Did you hear that team?

21:40

I'm an Einstein. Oh, can I

21:42

get a selfie the number one

21:44

AI CRM? Now everyone's in Einstein

21:46

with Salesforce Let

21:48

the Hartford help protect what's unique

21:50

about your business learn how at

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