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Fresh for everyone. Well,

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down it goes to the Court of Appeals. Down

1:27

it goes then to the trial court. Then

1:29

it probably is going to take a very long time

1:31

to sort this mess out. Because

1:34

if you look at the opinion, there

1:36

are just allegations after allegations about everything

1:38

that Trump did. Trump then

1:40

he said publicly, something that he said

1:42

to state law officials. Efforts to try

1:44

to create alternative slates of balance. All

1:46

the stuff with respect to Mike Pence. And

1:49

as far as I can see, it will take several

1:51

months at the very least to sort this out. And

1:53

if I were the government, at this point I would

1:55

drop the kicks. I think by the time they get done with trying

1:58

to get around this case, and

2:00

the Fisher case, there just isn't enough

2:02

left there to make this into a

2:04

credible prosecution. But

2:06

remember, this is a very political

2:08

administration, just the way the Trump

2:11

administration was political. And so

2:13

I don't think that there's very much likelihood that

2:15

they're going to put up the white flag saying

2:17

at this particular point in time, the only thing

2:19

that we could do with this case is distract

2:21

from the election. So it's a

2:23

huge victory for Trump and it's such an

2:25

utter difference in tone between this and what

2:27

happened in the Court of Appeals for

2:30

the District of Columbia, that your

2:32

eyes kind of shake and boggle at watching

2:34

what has happened. And I think it's really

2:37

important to understand the key feature with respect

2:39

to this argument. Let's start with

2:41

the view that the president is entitled

2:43

to official immunity for acts that are

2:45

done inside the scope of his office.

2:47

And this has sort of been fairly

2:49

clear since the Fitzpatrick case and a

2:51

bunch of other stuff. So the

2:54

question then is, he's now out of office. What

2:56

happens to that immunity? The

2:59

sensible thing is to say he has to have

3:01

it because he knows that he doesn't have it

3:03

after he's in office, then de facto he knows

3:05

that he doesn't have it, period, because it's just

3:07

a matter of time because these things will be

3:09

done. And so what you have

3:12

to do is to say that whatever

3:14

immunities that he had during the office

3:16

are the same immunities that he has

3:18

afterwards, because otherwise the true dominant fear

3:20

is that political opposition can in fact

3:22

weaponize the entire situation. And every foreign

3:24

president is going to be subject to

3:26

this risk. And the same thing, of

3:28

course, is true with respect to Joe

3:30

Biden and all of his various prosecutions. Could

3:33

somebody say that the effort to try and

3:35

go after Trump is itself a violation of

3:37

office? And so he's not immune when he's

3:39

out of office. You cannot

3:41

live in that particular universe. And

3:43

so the premise that had been

3:46

previously given was it's the current

3:48

president who talks about the immunity

3:50

of the previous president, which is

3:52

completely untenable, totally unstable, and utterly

3:54

indefensible. So then he has it.

3:56

So the question then is what's going to count

3:58

as something that is outside the scope

4:01

of it. Well, I mean, the first

4:03

thing you then have to do is to figure

4:05

out what kind of stuff would count as a purely

4:07

private act. It seems to me

4:09

that what you have to do is

4:11

to get away from anything associated with

4:13

an election, one kind or another. And

4:16

so a purely private action would be

4:18

if Donald Trump was engaged in drunken

4:20

driving on New Year's Eve when he

4:22

was out with his family. That

4:24

would be a kind of a private act and you could

4:27

go after it. But the moment it

4:29

turns out that it has something to do with

4:31

his ability to protect his position in office or

4:33

his prerogatives and so forth, then it seems to

4:35

me it's going to fall on the other side

4:37

of the line. So when

4:40

the Washington Post comes up and

4:42

announces some immunity is given, the

4:44

headline is simply incorrect. The

4:46

way this decision starts to read and why the

4:48

dissent is so angry about the way in which

4:50

it came out is that the

4:52

immunity is presumptive and immunity is absolute

4:54

with respect to stuff that he does,

4:57

that he can do, that presidents are

4:59

the kind of things that only presidents

5:01

can do. And this, all

5:03

these official acts start to fall within

5:05

that kind of a category. And so

5:08

it seems to me that a try

5:10

and resurrect this prosecution, it's going

5:12

to take several months before you can even get

5:14

it started. And then you're going to be buff

5:16

with a sliver of a case and nobody even

5:18

knows what that particular sliver is going to look

5:20

like. In addition, of course,

5:22

there was a Fisher case which meant

5:24

that you couldn't treat this as though

5:26

it was an adjunct to the various

5:28

kinds of died, Dodd-Frank crimes associated with

5:30

criminal behavior. It turns out that

5:33

the single biggest word in the history of the English

5:35

language, as far as that can say, is this term,

5:37

is otherwise. Because otherwise, you don't understand

5:39

what's going on in the statute. Forgive the pun.

5:43

In that case, I think they were

5:45

absolutely right to say that you do

5:47

not take a statute, which is primarily

5:49

ended financial irregularities, look at

5:51

the otherwise and think of it and say,

5:54

we can start over in Section D. This

5:56

is about the Dodd-Frank law that was used

5:58

in order to prosecute those who were invaded

6:00

the building on January 6th and the Supreme

6:03

Court decision is said to be leading to

6:05

a number of those individuals to be released

6:07

from jail is said to be. It

6:10

has to be because look, I mean, the reason

6:12

why that was such an unsavory

6:14

prosecution is you're talking about

6:16

age. There is

6:19

no question that many of these people committed

6:21

criminal press passes for which the punishments would

6:23

be modern. And so what you're trying to

6:25

do is now to quadruple, multiply by a

6:27

factor of 10 the prosecution.

6:30

So a guy walks into the building for four

6:32

minutes, walks out, may or may not have had

6:34

a sweep with some of the local authorities, goes

6:36

to jail for 20 years or 10

6:39

years, whatever those numbers are going to be. It's

6:41

just crazy to assume that's the way

6:44

the system should go. So that's four

6:46

indictments in the case of January 6th

6:48

against the president turn on that very

6:51

doubt-fragation. So all

6:53

that stuff is gone. And

6:55

I mean, it should be gone. Look,

6:57

this was essentially a colossal mistake on

6:59

the part of the Democrats to bring

7:01

these things. My position has always

7:03

been, and I've said it from the beginning,

7:06

is that the president has very serious

7:08

political liabilities and baggage when he engaged

7:10

in the kind of conduct that he

7:12

did on January 6th. But

7:15

the effort to try and legalize this

7:17

is going to have disruptive effects upon

7:19

an election and is going to lead

7:21

to all sorts of complexities that nobody

7:23

will fully understand. There's

7:25

nothing about the District of Columbia Circuit Court,

7:27

which is amateurism. It's a very liberal court,

7:29

to be sure, but it's a serious court.

7:31

And if they can come out the way

7:33

they did, and Roberts could come out the

7:35

way he does, and if so tomorrow, you

7:37

all can essentially basically blast the president for

7:39

the run and the

7:41

chief justice for ending democracy as we

7:43

know it, it's quite clear that in

7:45

uncharted territory, the law is much more

7:48

plastic and less well understood than we

7:50

want. This kind of has a kind

7:52

of an irony because the

7:54

other major opinion was the Chevron case

7:56

or the anti-Chevron case that came down

7:58

in Loperbright. And Justice Roberts was at

8:01

his best form basically saying we have

8:03

to look for the one best interpretation

8:05

of the statute. And now

8:07

what we know after that is we

8:09

still have the following problem. People

8:12

can be going for the best interpretation of

8:14

the statute and come out in opposite ways,

8:16

completely, totally and utterly. Now that may

8:18

well be acceptable in various kinds of

8:20

disputes having to do with whether or

8:22

not you can put people on boats

8:25

and require the owner of the boat

8:27

to pay for their harbor and all

8:29

the rest of that stuff. But it

8:31

doesn't work when you're trying to go

8:33

after the president. So the nux of

8:35

the basic maxim is if you wish

8:37

to engage in these kinds of political

8:39

prosecution, your case has to be airtight.

8:41

And so that the legal theory is

8:43

so strong that everybody on the other

8:45

side of the particular case agrees that

8:47

you were right. That's why we managed

8:49

to get Richard Nixon out of Walvis.

8:51

So I'll just end on this one

8:53

note. Thirty seconds. Thirty seconds. Thirty

8:55

seconds. President Truman essentially was held to

8:58

act beyond his powers when he tried

9:00

to commandeer these steel mills in

9:02

the middle of the Korean War. And

9:04

he did go beyond his power. Does that mean

9:06

he should be subject to a criminal prosecution for

9:09

the actions that he took since they were beyond

9:11

the scope of his power? No. They're

9:13

totally different tests for invalidating an

9:16

action and for imposing criminal sanction.

9:18

And I hope that this brings the

9:20

case to an end. And so the

9:22

rather sorry election that we're going to

9:24

have to face can go forward without

9:26

the encumbrance of further prosecution. Professor Richard

9:28

Epstein, senior fellow of the Hoover Institution,

9:30

teaches law at NYU and the University

9:32

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