[MUSIC - Marden Hill: Hijack]

Brigid Bergin: It's The Brian Lehrer Show in WNYC. Welcome back, everybody. I'm Brigid Bergin filling in for Brian today. As you heard earlier in the show on this final Supreme Court opinion day of the term, the court weighed in on the question of former President Trump's immunity from prosecution over his attempts to block the results of the 2020 election. It was a 6-3 decision along ideological lines with Chief Justice Roberts writing the majority opinion. We're joined again by Aziz Huq, professor of law at the University of Chicago Law School, and author of the forthcoming The Rule of Law: A Very Short Introduction. Hello, Aziz, and welcome. Thanks for being back on The Brian Lehrer Show.

Aziz Huq: Thanks for having me, Brigid.

Brigid Bergin: Listeners, as promised, we can take some calls on this decision. Please call or text with your questions, your thoughts, your reactions to the ruling in this immunity case or any of the other cases. The number is 212-433-WNYC. That's 212-433-9692. Aziz Huq, the court sent this back down to the lower court to reevaluate the charges against the former president. In light of their guidance on immunity, how much guidance did they actually set?

Aziz Huq: I think that they said several things that the district court in the first instance will have to apply as new rules of constitutional law. The application of those rules is likely to involve a potentially lengthy fight over evidence and the shape of the indictment in which Trump's lawyers will be advantaged by several things the court said about how the processes to unfold.

Brigid Bergin: Aziz, we have a listener who texted a question. Something a lower court asked was something along the lines of if the President ordered SEAL Team Six to murder a rival, would that be considered an official act covered by immunity? This listener is curious how this Supreme Court decision would impact an act by a president along those lines.

Aziz Huq: Well, let me spell out what I think is the court's rule of decision in this case and say how that hypothetical would come out under it. What the court said is that presidents are immune from criminal prosecution for the exercise of what it called core constitutional powers. It referenced a couple of authorities such as the power to recognize foreign nations that are mentioned in the text of Article II. One of the other powers that is mentioned in Article II is the president's power as commander-in-chief. And I think it would be surprising if the court at some later point said, well, that is not a core constitutional power.

It doesn't say anything one way or the other in this case but I think a fair reading of the case is that it is a core constitutional power for the president to act as commander-in-chief. If the president as commander-in-chief were to use a military force like a SEAL and direct them to assassinate a rival, I think that the force of today's ruling is that that would be absolutely immune from prosecution. Now, one reason to think that is that in her dissent, Justice Sotomayor explicitly picks up on that hypothetical and says, ''The court today renders the president absolutely immune from criminal liability if the president uses the military in support of either his own or her own campaign.''

''Or'' she goes on to say, ''executing a military coup.'' I think that that would be a fair reaction.

Brigid Bergin: We have a listener with a question. Let's go to Shoshana in Boston. Shoshana, thanks for calling.

Shoshana: Yes. Thank you for taking my call. I was wondering, given this new Supreme Court ruling, if this eliminates the chance that Trump could go to trial before the election happens because I know there were chances of trial happening before the election.

Brigid Bergin: Shoshana, thanks for that call. Professor Huq?

Aziz Huq: I think the court has made it really, really hard to have that trial before the election. I think the first thing that the court did to make it hard was to delay so long in issuing this ruling and the nature of the other part of its ruling, which I haven't put on the table involves a very, very fact-dependent or fact-sensitive inquiry into whether a president's action is not core but is somehow an official action. The court says a whole bunch of things about certain allegations in the indictment, and whether they are unofficial or official, and says go to the district court.

You've got to figure out whether these actions including communications with Vice President Mike Pence, including communications to the public, including communications to state officials and private actors, which were meant to allege or create a false slate of electors. Whether those were official or unofficial actions, that process potentially could involve a good deal of pretrial litigation. Trump's lawyers have every incentive to drag that out and given the delay that's already occurred, I think that it's extremely unlikely that that process could occur before a November election.

Brigid Bergin: Listeners, as promised, we are taking your calls, texts, reactions on this decision in the Trump immunity case. You can call 212-433-9692. That's 212-433-9692. We're speaking with Professor Aziz Huq who is a professor of law at the University of Chicago Law School, author of the forthcoming The Rule of Law. And, Professor Huq, we have a listener who asks via text, ''What does this mean for the classified documents case? Have classified documents been considered an official act, but removing them from the White House at the end of your term perhaps is not. Do you think there are any implications for that case from this ruling?''

Aziz Huq: As I understand the classified document case, almost all of the actions that are alleged in that case occur after Trump left the presidency. At least the immunity part of this ruling doesn't touch on that. In his separate concurrence, Justice Thomas argues that Jack Smith as a special counsel is improperly appointed because he's somewhat insulated from presidential control. Of course, the reason that a special counsel is insulated from presidential control is to ensure against the political use of the prosecution power. That's an argument that Judge Cannon in the Florida District Court has pounced upon as one of many, many, many tools for dragging that proceeding act.

Brigid Bergin: Let's go to Alan in Brooklyn. Alan, thanks for calling The Brian Lehrer Show.

Alan: Good morning. Thanks. I'm wondering, there used to be a custom of Republican nominees promising to steer clear of anything that looked like judicial legislation. Roberts, when he said he confirmed said it's like the John umpire in baseball to just call balls and strikes. If that's the case, they never should have needed to write a textbook on what facts are and or not official or unofficial acts and just merely address, as Jackson suggested during oral argument that they asked whether these set of facts, these actions were within or without Trump's official acts.

It seems like inevitably way to delay to answer a question that's only relevant if you're legislating because the facts before them involve only one case and that case clearly was not official.

Brigid Bergin: Alan, thanks for your question. Go ahead.

Aziz Huq: I think that Alan makes a fair point about the conservative judges making claims to the effect that they are only applying settled law when what they are doing in this case in the Second Amendment case, Rahimi in the Chevron case, Loper Bright, which was about agency power, what they are doing is creating new rules in the form of legal doctrine whereby general or vague constitutional provisions are applied on the ground.

I think that the real problem here is the idea that Chief Justice Roberts, among others, has alluded to that judges deciding constitutional cases can somehow do their job without in some way being creative without in some way legislating. I think what's problematic about today's ruling is the way in which they have gone about doing that. A way that precisely for the reasons that the first question, Brigid, that you asked me I think puts front and center is deeply troubling. This is a ruling that with respect to some of the most dangerous uses of the coercive powers that the presidency has at its disposal places the presidency beyond the law. Now, whether it was likely ever for a president to be prosecuted for using improper force, today that use of improper force is no longer illegal, which I think is a striking difference.

Brigid Bergin: Wow. Professor Huq, a lot to process here. We brought listeners some live analysis and special coverage from NPR earlier in this show. Part of their analysis was that the federal charges against the former president would likely be dropped if he were to be elected, so delaying the start of this trial past the election might mean that there are no trials at all. Do you agree with that analysis?

Aziz Huq: I think it is almost certain that were Trump to win in November that he would direct the Justice Department to drop these charges. I think that it is almost certain that the Justice Department would drop these charges, would remove Jack Smith. A special prosecutor would terminate the charges in the Florida case and there would never be an accounting for what happened on January 6th.

Brigid Bergin: If President Biden or another Democrat is to win the election, do you have a sense for which of the acts by the former president are most likely to survive this ruling ultimately?

Aziz Huq: The court talks about three clusters of acts. First, it talks about the president's communications with officials in the Justice Department and says that those are plainly official acts for which he is immune. Second, the court talks about President Trump's communications with Vice President Pence and says that those are probably immune because they count as what the court calls official acts but some of them may not be because Pence was not acting as a vice president at the time, he was acting as the President of the Senate, which is a technical legal distinction.

I think it is likely that many of those-- many of the communications with Pence will fall outside of the scope of what can be prosecuted and it's important to add, the court said if something is an official act, not only can it not be the basis of prosecution, it cannot be mentioned in the evidence that the prosecutors bring to trial.

Brigid Bergin: Wow.

Aziz Huq: I think that that's a very practically important ruling that is in no way necessitated or required by even the majority's theory of presidential immunity but that does extraordinary work helping Trump with respect to the proceedings that will unfold in the lower courts. The third category of acts that the court talks about are the interactions with state officials and with private actors over the fake slates of electors. Although the court floats the possibility that some of those interactions may have been in furtherance of the president's interest in election integrity, it seems to me that on their face, those actions without any inquiry into the president's motives, which the court has said is not allowed, are plainly not intended to further the integrity of the election.

I think if Smith is going to successfully prosecute this case and if Smith were interested in doing so rapidly, perhaps the most effective thing for him to do would be to narrow the indictment so it only focused upon those interactions with state officials and private actors concerning fake elector slates where the very nature of the action bespeaks or evidences their impropriety and the fact that they were not done for an official purpose.

One thing to look out for when this case goes down on a remand is whether Smith, if he is savvy in a certain way, refiles the indictment in a much narrower form thereby eliminating the scope for extended and retracted litigation before trial over what is or is not an official act.

Brigid Bergin: Wow. Professor Huq, I want to just take a moment on the dissent. This, as I've said, is a 6-3 ruling with the justices appointed by Democratic president in the dissent. Can you talk a little bit about some of the issues they raised? One of our caller raised the point that Justice Sotomayor said in her dissent, and you can, in fact, just fact-check us on this, that hundreds of statutes may now be in peril preventing agencies from enforcing laws. Is that accurate? What other laws are in peril, and what was the thrust of their dissent?

Aziz Huq: The thrust of the dissent is that this is a novel and unstable form of immunity that has no root in constitutional text and no justification in the structural principles of the constitution. Everyone agrees that our constitution is characterized by a separation of powers between the president, the Congress, and the judiciary. At least until now, I think it was generally understood that when Congress passes a law, a criminal law, let's say, that says thou shalt not murder, that law covered everyone and that law didn't have in it a silent escape hatch for people who happen to be in the Oval Office.

The thrust of the dissent's opinion is that by creating this escape hatch out of constitutional silence, out of no history to speak of, out of no tradition of American practice that's worthy of mention, what the majority has done is to create a exception to the hundreds of criminal statutes that are on the book for the president and the president alone when the President says, ''Well, I'm doing this as an official act.'' The worry that I think the dissent legitimately and rightly brings to the table is that the creation of this extra textural exemption from criminal liability.

Notice that this is not just, we're not going to prosecute you, but it's that the law simply does not apply to the president creates deeply perverse incentives on the path of the most powerful person in our democracy to misuse the laws that our democracy has created.

Brigid Bergin: Well, we are going to have to leave it there on this very historic day. A big thank you to Aziz Huq, professor of law at the University of Chicago Law School and author of the forthcoming The Rule of Law: A Very Short Introduction. Professor Huq has been our guest all month, very generously offering to be on standby for The Brian Lehrer Show, and has joined us frequently with his analysis during this month of the Supreme Court's term. Professor Huq, many thanks from Brian, the whole team, and all of our listeners. We really appreciate you.

Aziz Huq: Thank you very much for giving me the chance to talk about these important cases.

Brigid Bergin: The Brian Lehrer Show's producers are Lisa Allison, Mary Croke, Amina Srna, Carl Boisrond, and Esperanza Rosenbaum. Our intern this summer is Sasha Lydon-Cohen. Zach Gottehrer-Cohen takes care of the podcast. Megan Ryan is the head of Live Radio. Juliana Fonda and Milton Ruiz are at the Studio Controls. I'm Brigid Bergin and this is the Brian Lehrer Show in WNYC. Stay tuned for All of It with the great Allison Stewart back in behind the mic. Way to go, Allison.

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