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Brian Lehrer: This is special coverage, the Supreme Court presidential immunity hearing. I'm Brian Lehrer on WNYC, with you for the next 20 minutes, then we'll hand it off to NPR when their network special coverage begins, at 9:50. The oral arguments themselves are scheduled to start at ten o'clock. What's it all about? Well, the nine justices of the Supreme Court, three of them appointed by Donald Trump, are hearing arguments today on Trump's claim that he is immune from the charges filed against him by special counsel Jack Smith for trying to overturn the results of the 2020 election.

The justices will decide if a jury can even consider whether Trump tried to defraud the government and the people of the United States into keeping him in the presidency after an election he lost. Can he even potentially be held accountable if he committed that democracy-destroying crime while in office? With us for more context is Melissa Murray, NYU law professor, co-host of the legal affairs podcast, Strict Scrutiny, and co-author of The Trump Indictments: The Historic Charging Documents With Commentary. She was a guest on my show last month for that book.

Melissa Murray has a New York Times op-ed in advance of today's hearing called The Supreme Court Has Already Botched The Trump Immunity Case. If we have time, we'll touch on election interference indictments in Arizona yesterday and maybe the gag order ruling expected today in the New York so-called Hush Money case. Professor Murray, I know this will be a busy day for you, so thanks for some time. Welcome back to WNYC.

Melissa Murray: Thanks for having me, Brian.

Brian Lehrer: I'll bite on your Times headline. How could the Supreme Court have already botched this immunity case before they even heard it?

Melissa Murray: Well, I should say, the authors don't always write the headlines, but I do think that the court has botched this because the real question here is timing. No legal scholar imagines that the court is going to credit Donald Trump's broad argument that he's entitled to absolute immunity from criminal liability. The real question is when is the court going to simply affirm that view, which it's very likely to do, and what is the timing of that decision? If the court decides this tomorrow and issues an opinion, well, maybe they haven't botched it entirely.

If the court waits and indeed it seems like it has been waiting, by scheduling this for the absolute last day of oral arguments of the term, then they will have effectively immunized Donald Trump from this case regardless of what the ultimate outcome is here because they will have made it almost impossible for this to actually get to trial and a jury.

Brian Lehrer: I'm curious, how many justices had to decide to take the case? Because they could have just turned it down and let the appeals court ruling stand, which would've allowed the election interference trial to begin. How many justices had to decide to take the case or schedule that it would be heard this late?

Melissa Murray: Generally it takes four justices to grant certiorari. In terms of the scheduling, that is a question for the court. They have almost entire discretion over how they actually do schedule things. The fact that they chose April 25th, which is the last day of oral arguments for this term I think spoke volumes. It could be the case that they were waiting for the oral argument in Fischer versus United States, which as you know, involved charges around January 6th with another defendant in the January 6th uprising. That may have some implications for Donald Trump, but it's not entirely clear that it's going to be completely determinative of this question.

That's the only reason that I can see for scheduling this so late. Again, it is really late. Jack Smith asked the court in December to skip over the intermediate appellate court, the D.C. Circuit, to hear this case. The court declined to do so then and allowed this to be heard on January 9th by the D.C. Circuit. Then the D.C. Circuit took about a month to issue a very methodical opinion, and in February, the court granted certiorari on this case, but again, scheduled it for two months later.

Brian Lehrer: Do we know who those four justices, or minimum four justices would have been who decided to take this case and in this way? Are they transparent about who?

Melissa Murray: No, they are not. We don't actually know who voted to grant cert. Typically, we don't know any of those decisions unless someone decides to dissent from a grant of cert or dissent from a denial of cert and then we have a better sense of things, but I think we will know at around ten o'clock who is itching to hear this case.

Brian Lehrer: I'll get back to that, listeners' guide to which justices to listen for asking probably what kinds of questions. Could it be that members of the court want to put their definitive stamp on the idea of no blanket immunity just because you're president, and therefore they allowed the process to proceed in the fullness in which it's proceeding? Let the appeals court go through its hearing, issue that very meticulous decision that you were describing before, and then take it up themselves at the level of the Supreme Court, issue their ruling, and then case closed for all eternity.

Melissa Murray: No, I think it's entirely possible that the court could have done that. I think where I am more skeptical about just that as an indicator is that everyone understands that this question of whether this defendant participated in a scheme to disrupt the conduct of an election, is really important for this election that is upcoming in November of 2024. Surely the court knows that as well. Again, the D.C. Circuit's opinion was very methodical. The court could have credited that.

They could have written a very short decision almost immediately after that came up before them for review crediting the D.C. Circuit opinion, maybe putting their own stamp on it, but affirming, as I think they will, that there is no absolute immunity of a president from criminal liability. That presidents are not kings, so I'm not sure what all of the windup is and what is actually going to be especially distinctive. They may want to tinker at the edges, but again, not clear that it would've taken two months to do so.

Brian Lehrer: Here we are. This hearing is happening and it's happening today. You're right, the court could help protect democracy still by issuing a ruling quickly after today's hearing. How quickly do you think they could rule?

Melissa Murray: Some have suggested that maybe the court has something already in the can and they could decide this very quickly by tomorrow or by next week. I think that's surely possible. We've seen the court moved with considerable expedition when it has wanted to do so. Bush v. Gore is a telling example. I think this really depends, and the timing of this I think is going to be telling for the American public.

Brian Lehrer: When could the actual election stealing trial, the Jack Smith Special Counsel charges against Trump begin?

Melissa Murray: It is possible, Andrew and I have talked about this, we talked about this in conjunction with our book-

Brian Lehrer: Your co-author, Andrew Weissmann. Go ahead.

Melissa Murray: -that-- Andrew Weissmann. Yes. We've talked about this. If the court issues a decision that's relatively quickly, this could go back to Judge Chutkan. Jack Smith could limit some aspects of his case against Donald Trump and move very quickly. Maybe we do get to a jury before November or maybe even before the conventions. Again, a lot really depends on the timing of this ruling and getting all of this resolved. To be very clear, Brian, this is not just an issue that Jack Smith and the government wants resolved. It should be an issue that the defendant, Donald Trump, wants resolved.

Because if you are a criminal defendant and you genuinely believe that you are immune from criminal liability, you don't want to labor more days than you have to under the ignominy of being criminally charged. It's not clear why Donald Trump and Jack Smith aren't both on the same side to get this done quickly because they both have an interest in seeing this immunity question resolved.

Brian Lehrer: The Trump campaign may see that differently. One more question about the timing and then we'll talk about the content of what's likely to happen today. Let's assume the Supreme Court does allow the election stealing trial to go forward, but depending on when they rule, it's deeper and deeper into the presidential election year. We have the Republican Convention in July, for example, as you were just referring to. What kind of judgment will the trial judge have to make about how much to defer to Trump's campaign needs or rights at any point?

Melissa Murray: It's a great question. Obviously, criminal defendants have enormous rights in criminal court and there are constitutional protections for them. All of those apply, and then there are these additional concerns about the fact of the campaign, the proximity to the upcoming election, and his right as a candidate to campaign vigorously. I think this is going to require some very careful case management from Judge Tanya Chutkan, but again, she's a very experienced trial court judge. She's had criminal trials before, and I think she's up to the task. I think the real question is, how much of this is she going to get and at what time? That really depends on today and tomorrow and the day after that.

Brian Lehrer: If you're just joining us, this is special coverage, the Supreme Court Presidential Immunity hearing. I'm Brian Lehrer on WNYC for another 10 minutes till 9:50. Then we'll hand it off to NPR when their network special coverage begins. The oral arguments themselves are scheduled to start at ten o'clock. With me is NYU law professor, Melissa Murray, who also co-authored a book about the various Trump indictments.

Let's talk about the content of what we might hear today. As I understand that there's a crucial distinction in this case between actions Trump took that could be considered official government actions taken as president and things Trump did at that time as a candidate that might be less protected. Is that something to watch and listen for today?

Melissa Murray: Certainly. There are really two big precedents in this case. One is the United States versus Nixon. That is famously the 1974 case about the trial subpoena that was seeking the tapes of Nixon's conversations in the Oval Office and where the court rejected Nixon's claims of executive privilege. That's going to be on deck. The real case that I think a lot of people are going to be looking to is another Nixon case. This is Nixon versus Fitzgerald, which was decided in 1982, very long after Nixon left office.

Essentially, it was a case that held by a five to four vote that a president is immune from civil liability for damages for actions undertaken in the scope of his office. That's really important. The idea is that when presidents do things and they do a lot of things, they can't be sued civilly for those actions undertaken as part of the presidency. Donald Trump has argued that Nixon versus Fitzgerald applies to [unintelligible 00:11:20] here and covers him for actions undertaken in the scope of his pregnancy even in the context of criminal liability.

The court has never said anything about whether presidents can be immune from criminal liability, mostly because we have never had a president that has been criminally indicted. I think a big question that's going to be here, and you can tell from the question presented that the court issued that they would review, is that they're going to be pressing to see whether the actions that are alleged to form the crux of the case against Trump, those actions on January 6th, were undertaken in the scope of his presidency. Are they official actions or are they something else?

Brian Lehrer: It seems obvious to me, but I'm no lawyer, that the acts in question here were the acts of a candidate trying to be declared winner of the election. How might Trump's team make the case that all those instances of alleged election fraud and January 6th riot encouragement were acts of state rather than acts of a campaign?

Melissa Murray: It's a great question. We can tell from the brief some of the tenor of what the Trump team's arguments will be, but it's basically the mirror image of what you've just said. Jack Smith is going to argue that this was about a candidate trying to stay in power at all cost. Donald Trump's lawyers are going to argue that this was about a president, a duly elected president, still in his term, trying to ensure that the election was conducted fairly and with integrity. Jack Smith is arguing election fraud. Donald Trump is arguing that he was trying to prevent election fraud.

Brian Lehrer: Do you have a take on who the swing justices might be today, whose questioning we should be very interested in for that reason?

Melissa Murray: Do I ever? I think we should be looking at the Chief Justice. He is a conservative, but we've seen over the course of the last couple of years as this conservative supermajority has been ascendant, that he's less in control of the conservative block, but I think on this case, he may have a little more room to move here. I think he's perhaps in the middle on this. I think there are some justices who are very firmly in the Trump camp and some who are definitely not. I think I would look at the Chief Justice and Justice Kavanaugh, perhaps Justice Barrett as well.

Brian Lehrer: Here's one argument I would be curious for your comments on that we may hear today. As the AP describes it, Trump's lawyers have warned that if the prosecution is permitted to go forward, it would open the floodgates to criminal charges against other presidents, such as for authorizing a drone strike that kills a US citizen. We know that's a real example from the recent past, or for giving false information to Congress that leads the country into war.

We know that's a real example from the recent past. Professor Murray, might the justices have to draw that kind of line somewhere between official presidential acts that could be charged criminally, like maybe those that they deem Trump committed even if they uphold the idea that they were official acts, those that could be charged criminally and those that cannot, like decisions made at the policy level during a war?

Melissa Murray: No, I think that's exactly what I would be looking for. Not just who is asking the questions, but what the substance of those questions are. I think you are exactly right. A big question here is going to be what falls into the scope of official conduct and what is at the outer perimeter or even way outside of the conduct of presidential duties. I think we're going to see that. I just also want to emphasize this parade of horribles that the Trump team has asserted that will happen if Donald Trump is made to stand trial on these charges.

Again, this is a little bit of American exceptionalism going on here. As Andrew and I detail in our book, it is actually quite commonplace in other countries that we would consider advanced democracies to hold former leaders, even former heads of state, to account for misconduct undertaken during the tenure of their offices. Indeed, it is viewed as something that's essential to remaining a rule of law democracy, not something that detracts from the fact of a rule of law democracy.

Brian Lehrer: To help our listeners know what's coming, here is a clip that we've used before, which strikes many as extraordinary, in which one of the appeals court judges asks a Trump lawyer if they think Trump as president could have a political rival assassinated and still be automatically immune from prosecution for that. Listen to this exchange.

Judge Florence Pan: Could a President order Seal Team Six to assassinate a political rival? That's an official act, an order to Seal Team Six.

Speaker 4: He would have to be and would speedily be impeached and convicted before the criminal prosecution.

Judge Florence Pan: What if he weren't, there would be no criminal prosecution, no criminal liability for that?

Speaker 4: Chief Justice's opinion [unintelligible 00:16:18] and the plain language of the impeachment judgment clause all clearly presuppose that what the founders were concerned about was not--

Judge Florence Pan: I asked you a yes or no question. Could a president who ordered Seal Team Six to assassinate a political rival who was not impeached, would he be subject to criminal prosecution?

Speaker 4: If he were impeached and convicted first.

Judge Florence Pan: Your answer is no.

Speaker 4: My answer is qualified yes.

Brian Lehrer: Qualified yes. To unpack that, Professor Murray, the claim is that to prosecute a president criminally, he would first have to be impeached and removed by the Senate. Something that as we know, might not happen for political reasons if the President has enough Senate allies as happened with Trump twice, having nothing to do with criminal justice. It's a very brash argument, to say the least. Could it fly with anyone on this bench in your opinion?

Melissa Murray: Well, it's a jaw-dropping argument, and I think that was the jaw-dropping moment in that D.C. Circuit oral argument. That was Judge Florence Pan asking the question. I can't imagine that this court credits it, but I think the real question is, if they don't credit this argument, is it going to be unanimous? That I cannot tell you. I strongly suspect it would not be a unanimous decision that the President couldn't do that.

I think I would be interested in seeing, or hearing rather, what Justices Alito and Thomas have to say on this with regard to what falls within the official actions of the President and whether or not impeachment is the sole avenue of accountability for a president that uses the trappings of office in ways that are clearly outside of what was intended.

Brian Lehrer: If I might, before we let you go, and we hand off to NPR in three minutes, a quick take on one or two other items. The indictments late yesterday by a grand jury in Arizona. Some of our listeners may not even heard yet that this happened for 2020 election fraud there. Rudy Giuliani, Trump's chief of staff through January 6th, Mark Meadows, and others, Trump himself is named as an unindicted co-conspirator. What's new in this Arizona case and does it duplicate what the special counsel has brought at the federal level?

Melissa Murray: I've only had a chance to skim the coverage of this at this point. I was on a plane all last night, but it was, again, an eyebrow-raising moment. The decision not to also indict Donald Trump, I think is a telling one, and perhaps speaking to the moment where the question of the four criminal indictments that are already in existence against Donald Trump and the fact that they may not go forward before the election may have led to a calculated decision to leave him out of this one until there's more clarity about what happens with the election.

Again, this very much reminds me of the indictment that was filed in Fulton County, Georgia, and certainly, there are echoes of the federal January 6th election interference indictment. It's just a reminder, I think, to listeners that this was, as alleged, a broad and wide-reaching kind of scheme that was not just in Georgia, was not just in a couple of states, kind of spread across the country to all of these major swing states where the decision between Donald Trump and Joe Biden was actually quite close. This could have had a real impact on the 2020 election.

Brian Lehrer: Would the Supreme Court immunity ruling, if they rule in Trump's favor, apply to state charges of election fraud as well like in Arizona, like in Georgia or only the federal charges?

Melissa Murray: Well, as of now, they only relate to the federal charges. They have been raised in the January 6th election interference charge and in the context of the Mar-a-Lago case, but if he is successful here, and again, I think that would be truly a seismic event if that were the case, I think it would open questions about whether or not states could also do this, and there would be other questions that arise.

Brian Lehrer: Real quick, in like 15 seconds, I read that one of those indicted in Arizona is a Trump legal advisor who's been helping him with the New York trial now underway, the so-called hush money trial. Could that be grounds for Trump to request a delay in the New York proceedings, which will be taking place today, I believe, with Trump in the courtroom, even as the Supreme Court listens to the immunity argument.

Melissa Murray: I think that's a watch this space kind of question, but again, this is a defendant who is very skilled in not just the art of the deal, but the art of delay.

Brian Lehrer: So he will try, and we have to leave it there.

Melissa Murray: I would expect.

Brian Lehrer: Melissa Murray, NYU law professor, co-host of the legal affairs podcast, Strict Scrutiny, co-author of The Trump Indictments: The Historic Charging Documents with Commentary and of the New York Times op-ed called The Supreme Court Has Already Botched The Trump Immunity Case. Professor Murray, thank you so much.

Melissa Murray: Thank you.

Brian Lehrer: This is special coverage on WNYC, the Supreme Court presidential immunity hearing. I'm Brian Lehrer, now we pass the baton to NPR's live coverage of the oral arguments from Washington.

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