Supreme Court Legal Analysis

( J. Scott Applewhite / AP Photo )
Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. We want to catch up on and dig into some big developments at the Supreme Court in recent days. We've got CNN senior legal analyst Elie Honig, a former New Jersey and federal prosecutor, to help us go beyond the headlines on the following. The court has accepted its biggest abortion rights case since the Dobbs decision overturned Roe vs. Wade. It's about how easily people should be allowed to get the abortion pill, mifepristone. Remember, most abortions, an actual majority of abortions these days in the United States are through medication, not surgery.
Depending on how the court rules, this could also be the first version of a national limit on abortion rights, limiting access even in the current legal states. Then there are two Trump trial developments at the Supreme Court just in the last few days. Yesterday, it accepted a case that could nullify some of the main January 6th charges against Trump, those that charge him and a lot of the rioters with obstructing an official proceeding. Now, from what I'm reading, the claim, believe it or not, is that rioting doesn't count as a means of obstructing Congress. What? We'll see what Elie Honig thinks about that.
Special Counsel Jack Smith has leapfrogged over some lower courts and asked the Supreme Court to rule directly on the basic question of whether Trump is immune from any January 6th or election fraud charges simply because he was president at the time. Obviously, all these cases, the Trump ones and maybe even more so the abortion rights one, have political implications for the presidential and congressional elections next year, too.
Let's dig in with Elie Honig, senior legal analyst for CNN, a former New Jersey and federal prosecutor. He also hosts the podcast from CAFE called Up Against The Mob and he is the author of the books Hatchet Man: How Bill Barr Broke the Prosecutor's Code and Corrupted the Justice Department and his latest which came out earlier this year Untouchable: How Powerful People Get Away with It. He may have to update that book depending on what the Supreme Court does. Elie, always good of you to give us some time. Welcome back to WNYC.
Elie Honig: Hey, Brian. Glad to be with you. I'm actually pleased to report that a lot of what I say in that book, which came out almost a year ago, has come to pass including towards the end I say, "Watch this immunity question. This is going to be a big darn deal in the Trump cases." Here's how much has gone down in the last three days or so. Without giving away to many insider trade secrets at CNN, there were certain segments that we pre-taped for New Year's morning on the theory that not that many people are going to be available for New Year's morning.
I had pre-taped a segment about here's the five biggest things that happened in the law this year, and the five biggest things to watch in 2024. Just this morning, I crossed emails with the producer saying, "We're going to need to reshoot that," because several big things have happened just in the last couple of days that have just changed what we're watching, and changed the calendar moving forward.
Brian Lehrer: Yes, and that's why we're doing this segment. Let's talk about the abortion pill case first. We'll take the Trump cases later after a break. Let's do some basics first. If the anti-abortion rights side wins, this would not ban mifepristone outright, and attempt to do that by the same conservative Christian group has already failed in the courts, but it would make it harder to get mifepristone in some very specific way. Can you remind us of what kinds of access are at stake?
Elie Honig: Yes, exactly right. Originally, it's important to note, Brian, when this case went to the district court, the federal trial court in Texas, that judge actually ruled mifepristone illegally approved by FDA off the market, but that was immediately put on hold. The Court of Appeals then said, "We're not going to go that far, but we are going to scale back some of the expansions in the way that women can get access to this medicine." For example, can they get it through the mail or do they have to make direct appearances with a doctor? There's also questions about timing. How early or late in the pregnancy can a woman get mifepristone?
The Supreme Court is going to have to rule on those expansions or will they roll back those expansions of mifepristone and the legal underpinning here, it's maybe somewhat of a pretext, but the legal basis for this is-- the argument is the FDA didn't go through the proper review process, A, when they approved mifepristone to begin with in 2000, and then when they subsequently expanded access a couple of times. Again, you point out an important distinction here. Mifepristone is not going to disappear off the markets, but access to it could be restricted in terms of: do you have to visit with a doctor? Does it have to be in person or can it be over telemedicine? What's the timing like and other access issues.
Brian Lehrer: Right, like delivery by mail. The decision-
Elie Honig: Yes, the delivery by mail is another one.
Brian Lehrer: -to allow prescriptions via telehealth came in 2016, delivery by mail was allowed in 2021. Was it clear to you who made those decisions and why?
Elie Honig: Well, those were expansions issued by the FDA. The FDA approved mifepristone, I think it was in 2000. Then from time to time, the FDA, in any case, will consider scaling back or expanding access. Those are revisions made by the FDA, expansions made by the FDA itself.
Brian Lehrer: Now let's talk about what the anti-abortion rights plaintiffs are arguing. I'm reading here from an NBC News story on this case. It says the claim is that the post-2016 FDA decisions, both the telehealth and the by mail, and how long in a pregnancy people could get mifepristone, it's now up to 10 weeks, should be put on hold because the moves "were taken without sufficient consideration of the effects those changes would have on patients." That's in the filing. Were taken without sufficient consideration of the effects those changes would have on patients.
Elie, that sounds like the plaintiffs want these justices trained in the law to second guess the FDA's medical experts on how they assess the effects of something on patients, yes?
Elie Honig: Well, that's exactly right, and many years later. These revisions were made in 2016, 2019, 2021, and now in 2023. By the way, originally, they said back in 2000, two decades plus ago, the proper procedures were not followed. The argument they're making, and I'm oversimplifying a bit here, is that the FDA did not take into account the emotional, the mental factors that go into using this drug. You're right.
Look, the FDA, the people who review this at the FDA, not that I believe federal agencies are infallible or should be all powerful, I do believe there should be limits, but you're talking about doctors and medical experts who made this decision. Now they're asking judges, very few if any of whom are doctors or medical experts, to say, "No, you didn't do this right."
This happens sometimes. People challenge agency promulgation of rules, but this seems to be pretty deep in the weeds, and yes, essentially is seeking to substitute the judgment of a bunch of lawyers in robes for a bunch of doctors and medical experts.
Brian Lehrer: Is there a history of the Court doing that kind of second guessing?
Elie Honig: Yes. The Court does overturn agency determinations from time to time, but it's important to understand, the courts are not supposed to go in there and say, "Well, we don't agree with your conclusion." The courts are supposed to look at process. Did you follow the correct processes? Did you, for example, serve public notice of this pending action? Did you take public comments in the way you're required to under administrative law? It's all these nuanced administrative processes. The way it's supposed to work is the courts can overturn an administrative action if they used a flawed process, but courts are not supposed to come in and go, "Well, we disagree or our experts disagree with your experts."
Brian Lehrer: When you cited mental health effects as something that they said the FDA didn't sufficiently take into account, it sounds like you don't think we're going to see arguments on, "Well, there are traumatic grief reactions to abortions by some people that they didn't take into account versus there's a lot of emotional relief that people feel when they get abortions that end unwanted pregnancies." They're not going to get that granular about it?
Elie Honig: That's interesting. Well, the gist of the argument, the pro-life, the anti-abortion groups is going to be, of course, the former. It's going to be traumatic effects. I wonder whether there will be-- certainly, they're not going to argue for whatever positive emotional effects there might be, but I wonder if the other side might argue that.
Brian Lehrer: That's right, yes. Maybe they will get that granular. We should say this case is being brought by doctors affiliated with a conservative Christian legal group called Alliance Defending Freedom. By the way, this is an aside, Elie, but don't you love those names? They always have names like that, Alliance Defending Freedom. Well, that sounds like a good thing, but then you see they're really the alliance to create a theocracy or something like that. I guess the law can't stop people from taking on vague misleading names.
Elie Honig: Someone needs to have a game show where you read off some of these, the Justice Fund, and it's like, "What are they?" They could be for the most extreme thing ever. They could be for something that everyone agrees on. These generic names, there's some wild ones out there when you actually dig into what they do. They try to espouse the most uncontroversial, broadest, flag-waving principles. Then sometimes when you dig in, they're quite extreme either way.
Brian Lehrer: I see the case could get dismissed because the Alliance Defending Freedom and the doctors affiliated with them might not have standing. What's the standing argument?
Elie Honig: Standing means, is this a person who's been harmed? Is this a person who has the legal right to bring a lawsuit? I guess the issue here is, really, doctors, and this is a medical group, aren't the people who are harmed by this, if anybody. A lot of times, what plaintiff's groups will do is round up all different types of plaintiffs. Maybe get a woman who has been through an abortion, or somebody like that, or somebody who may in the future. I don't know how you would do that exactly.
Yes, there is a procedural question, a standing question, and it's a way that the Supreme Court or any federal court can, I guess, you could say, duck a case, but avoid getting to the merits of-- this actually happened quite a bit in the Trump election lawsuit. They lost a lot of claims on this is a person who doesn't have standing. This is not a person who was or stands to be actually harmed by the actions here. You can see an argument that, well, a group of doctors doesn't really have an interest, doesn't sustain a cognizable type of harm from whatever the substance is of these abortion regulations.
Brian Lehrer: Listeners, we can take your questions and comments, first, on this mifepristone access case at 212-433-WNYC. Hold your Trump trial calls till we get to those Supreme Court developments. For now, on the telehealth, and mail delivery, and length of time in a pregnancy that you can get mifepristone, all those Supreme Court case aspects regarding the abortion pill, mifepristone, for Elie Honig, CNN senior legal analyst, 212-433-WNYC. 212-433-9692.
Is it fair to say this would be the first national abortion ban imposed by the Court rather than just turning those rights back to each state or to Congress as I think the Court said they were doing in the Dobbs decision?
Elie Honig: Right. Whatever the Supreme Court's ruling here will have national implications. One thing that is not on the table is doing what they did in Dobbs, which is say, "We're kicking it back to the states. We're going to let every state decide for itself." There's no outcome here where they're going to say, "Well, we're going to leave mifepristone up to each state individually." This is going to have national sweep in either the expansions that the FDA adopted in '16, and '19, and '21, either they're going to be nationwide applicable or they're going to be struck down altogether. You're right, there is a different implementation of this than in what we saw in Dobbs.
Brian Lehrer: Jim in Spring Lake, New Jersey has a question about that name, Alliance for Freedom. Jim, go for it. You're on WNYC.
Jim: Hi, Brian. Thanks for having me. I jumped when I heard you guys laughing about this. These names of these kinds of groups, this is the Machiavellian work of Frank Luntz, who was the wordsmith for the right for decades. He's got his best-selling book, Words That Work. It starts with the names of organizations like this where you say, "Wow, who would be against that?" Exactly. It's how they begin to grab a foothold in the zeitgeist on critical social economic and political issues.
Brian Lehrer: Absolutely right.
Jim: I don't know if there's a more critical one for the women of our country than the issue that you're talking about right now. We can't laugh this off. It's really important that we, those of us who are progressives, those on the left, that we begin to fight nonviolently fire with fire. We can't laugh off the way that they strategize because they're extremely effective. They're winning, and they're winning on this fight, and we have to challenge it at every point.
Brian Lehrer: Absolutely. I don't want laughing at the absurdity to be mistaken for diminishing the importance of taking on misleading names like those. Elie, I know you're a legal analyst, not a political analyst. I think he's right to trace it back to some degree to the Republican political strategist, Frank Luntz. I can't think off the top of my head, maybe this is wrong or unfair, but I can't think off the top of my head of a lot of similar groups like that on the left with those kinds of names. I don't know if you can, but again, I know this might not be in your portfolio.
Elie Honig: I'm trying to think about in the legal world. I think this is a strategy. I'll take your word for it on what the political origins of this are. I don't know that. Both sides, definitely, and the caller is right, it is a focused and I think effective political and messaging strategy to say, "Let's choose a name that nobody could quarrel with. Who could be against Americans for justice or anything like that?" Really, you do have to do your digging, and again, to the caller's point, but you do have to do your research into who exactly is this group.
I tell my students this. I teach undergraduates at Rutgers here in New Jersey. I say, "When you're citing a source, don't just glance at the name of the entity, you have to dig into who is this group." Same thing with the names of certain media outlets. They sound neutral, and you dig in and you go, "Whoa, okay. All right." I think we do have to be careful and cognizant of those labels.
Brian Lehrer: Here's a legal question from a listener via text message. They write, "There is not enough talk about the religious aspect regarding abortion. The First Amendment should protect America from zealots trying to enforce their religious will over the majority of Americans." Elie, I think I've asked you this question before because this is actually something I bring up a lot. Why aren't there a First Amendment religious liberty, to use a phrase from the right, religious liberty cases that defend a woman's right to choose an abortion because even major religions in the United States have different opinions on when life begins?
Elie Honig: That's interesting. The theory would be that a person is protected under the First Amendment, the right to free exercise of religion we're talking about now to say, "Well, in my religion life begins at whatever point, and therefore, I'm free to act on that." Is that the gist of the argument?
Brian Lehrer: Yes. We're talking about major American religions. I grew up in Reform Judaism which has a pro-choice position. With this Alliance for Defending Freedom, which I gather is a conservative Christian group per se, and I believe, Mike Johnson, the House Speaker, used to belong to this specific group. I think I've read that. One version of what's happening here is they want to impose their religious beliefs on those of Reform Jews and many other Christians too who believe that personhood does not begin at conception.
Elie Honig: Yes, but wouldn't the argument be, though, that when an individual is exercising his religion that this doesn't get in the way of that. If you choose to terminate, that's not a religious exercise, I don't think. You know what I mean? It may be for or against your religious beliefs if what other people are doing, but it doesn't stop an individual from doing what they want.
Brian Lehrer: A law that outlaws abortion bans an individual from exercising that right, and based on really, whatever they argue in court, based really on a lot of conservative religionists attempt to impose their religion on civil law.
Elie Honig: Yes, that's interesting. I'm not sure I've seen that argument made in the courts specifically. It's certainly not the arguments being made in the mifepristone case. That's interesting. I'd have to chew on that one a little bit. I wonder if it's been made before. I don't know.
Brian Lehrer: Yes, it's one that I wonder why it hasn't been made before and gotten to the Supreme Court on that basis. All right, that's not what they're looking at now, so let's move on. Andrew in Dix Hills, you're on WNYC. Hello, Andrew.
Andrew: Hi. My question is, if the Supreme Court allows mifepristone to be accessible nationwide, what does that mean for people who use it in states where abortion is illegal? Are just surgical abortions banned or is use of mifepristone also banned? If it is used, would they be charged with a criminal offense?
Elie Honig: This is a really good question. There's so much gray area right now happening in the wake of Dobbs. I actually thought there would be more. We saw another example of this with the really unfortunate case out of Texas where a woman wanted to get an abortion because her health was in danger under the statute. At first, she was given permission by a court, then the Texas Supreme Court said no, then she just went to another state. This is a great question. There are states where it's illegal to perform or assist in an abortion. Can a doctor or an individual order mifepristone into those states? The answer is it could violate those state's laws. It's possible that it could. Then the question will be, what would the consequences be? I don't know that someone would get sued, but could there be criminal prosecution? In states where abortion's illegal, it could be a crime to assist in giving an abortion, so doctors, I think there's a real deterrent, a chilling effect here on a doctor.
If you're a doctor in a state that's outlawed abortion, or outlawed it after a certain amount of time, and you order mifepristone, assuming mifepristone remains available, I do think there's a risk, and I think I'd be worried about that if I was in that position. That, well, I get that mifepristone is available, but my state's law do not allow someone to assist in an abortion. The caller's exactly right, that's a gray area, and there's some real tension and maybe even conflict there.
Brian Lehrer: Still on the name Alliance Defending Freedom. Somebody texts an example from the left, People for the American way.
Elie Honig: There you go.
Brian Lehrer: Where right and left might disagree on what the American way is. That was the late Norman Lear's group. Another listener writes, a listener who's a Democrat, writes, "They, Republicans, are winning. Democrats need to be better at messaging. Everyone I know thinks the Dems are horrible at it, and the Republicans take advantage of it." Before we move on, can you read any tea leaves that indicate how this mifepristone case will go?
Elie Honig: Ooh, that's a great question. Again, I think it's it's interesting that-- I think it was unlikely that the Supreme Court would've said mifepristone off the market altogether, FDA failed back in 2000 when they initially approved it. I think that would've been a long shot. Because we're looking at more incremental changes, I give a little bit of a higher chance, but let's just play this out. I think it's safe to say the three liberals: Justices Sotomayor, Kagan, and Jackson will be in favor of the expanded availability of mifepristone. I think it's safe to say that Thomas, Alito, and Gorsuch will be in favor of the restrictions, right?
I think you've got three to three, which leaves us with Roberts, Kavanaugh, and Barrett in the middle. Boy, that's a tough one. Roberts likes to avoid dramatic opinions that will have drastic political implications. We'll probably get into this with the Trump issues that we're coming up to. I can't make a prediction, but I can say I would narrow it down to two out of those three. Whoever gets two out of Kavanaugh, Barrett, and Roberts. I should say Kavanaugh and Barrett have both, from time to time, surprised people and crossed over and joined with liberals.
Not often, but it's happened a couple of times recently where Kavanaugh's joined with Roberts and given the liberals enough to get over the line, so that's not impossible.
Brian Lehrer: All right. We'll continue with Elie Honig in a minute and turn to the two major January 6th related Trump trial questions that the Supreme Court is now being asked to consider, including could Trump be totally off the hook for any of his attempts to subvert the election simply because he was president at the time? Stay with us.
[MUSIC - Marden Hill: Hijack]
Brian Lehrer: Brian Lehrer on WNYC. We continue now with Elie Honig, senior legal analyst for CNN, a former New Jersey and federal prosecutor, author of the books Hatchet Man: How Bill Barr Broke the Prosecutor's Code and Corrupted the Justice Department, and his latest, which came out earlier this year, Untouchable: How Powerful People Get Away with It. He's also the host of the CAFE podcast Up Against The Mob.
Now we turn to the two January 6th related Trump trial questions put before the Supreme Court in recent days. Elie, let's start with Special Counsel Jack Smith, asking the court to consider the basic question of presidential immunity. What is presidential immunity and what's the dispute over how it might apply here?
Elie Honig: Both of these issues are so important for the Trump trials. Okay. We have known for about 40 years now that there is such thing in our legal system as what we call civil immunity. Meaning a federal official or former federal official cannot be sued civilly for something that they did within the scope of their job description. That goes from the president on down to what I was, a federal prosecutor, with DOJ.
The case actually came out of a Richard Nixon case not related to Watergate. What happened was a federal official had been fired during the Nixon administration. He sued Nixon and the Supreme Court said, "You can't sue the president because it's part of the president's job to hire and fire federal officials," but if he did something outside of the job, if he got in a car accident or something like that while driving, then the President could be sued.
Now, what Donald Trump is arguing is new territory. He's arguing, "I am criminally immune from prosecution because what I did was inside the scope of my job as president." Now Trump's going to have to convince the Court of two things. One, is there even such thing as criminal immunity? We actually don't know that. The Supreme Court has said several times, "We've not ruled on whether there's criminal immunity." If there is then, two, was Trump inside or outside the outer boundaries of his job as president?
Now, Trump made that argument to the district court, the trial level court, Judge Chutkan, she rejected it a couple of weeks ago. She said, "No, no such thing, you're not immune." Now, ordinarily, Donald Trump would then get to appeal to the Court of Appeals for the DC Circuit, and then if he lost that, he could try again in the DC Court of Appeals, ask for what's called en banc review, meaning the entire court review it, and then if he lost that, then he could ask the Supreme Court to review it.
That would take months minimum, all of that, six months, eight months, keep in mind we have a March 4th trial date in this case. That's less than three months away. What Jack Smith did the other day, and I think it was a smart move and an aggressive move and a necessary move if he wants to keep that trial date, Jack Smith went to the Supreme Court and said, "Let's cut through all the noise here. Let's skip that middle level. Let's skip the Court of Appeals and go right to you, Supreme Court."
The name for this, it's called direct review. There's an interesting history to direct review. It's something that the Supreme Court has rarely done, but not never, and actually they went through about a 15-year stretch from 2004-2019 or so where they never granted direct review, but then from 2019 till now, the last four years, they've actually granted review 19 times, including in the Biden student loan case and including in a couple of immigration cases.
They're using this technique much more often. I think what's likely to play out is this, the Supreme Court has now said, "We're going to consider your motion to skip the middle court on an expedited basis, on a sped-up basis," and we should know from the Supreme Court right around the New Year, either the week before or after the New Year, whether they're going to take this immunity question directly. I think that they will take that immunity question directly, given just their recent history. They've granted direct review on cases less important with less time pressure than this one. I think it's likely they're going to take it.
Brian Lehrer: If the Court rules in Trump's favor, does that mean that a sitting president could stage in effect a coup through fake electors or rioting or whatever, and there's nothing the law could do about it because a president is broadly immune from prosecution?
Elie Honig: Well, so let's talk about what the possibilities are here. I think Trump is unlikely to win on this argument, but not impossible. In other words, I would give Trump less than a 50% chance of winning, but more than a 10% chance of winning. I'll leave it vague as to where in there it might fall. If Donald Trump prevails, if the US Supreme Court says, "Yes, there is such thing as criminal immunity, and yes, Donald Trump's actions as alleged in this indictment were within the outer scope of his duties as president," then a couple of things happen.
One, Jack Smith's January 6th case is over, it's dismissed. Two, as an almost certain follow on to that, Fani Willis' charge against Donald Trump is out the window as well, so-
Brian Lehrer: In the Georgia obstruction case.
Elie Honig: In the Georgia case, exactly. Two of the four pending indictments against Trump will be out. That's how big this is. As to your broader question, it's all a matter of characterization. I think the way you characterize it is exactly the way DOJ would characterize it. I would certainly lean towards that characterization as well. What Trump's lawyers have argued is, "Well, look, the president does have some role in overseeing elections." People sometimes say, "Well, no, the president has no role in elections. It's all up to the states." It's not quite right.
The president is head of the executive branch, which has the FEC, the Federal Election Commission. DOJ was part of the executive branch. They have an election bureau. The DHS has an election bureau, so the argument would be he has some role in ensuring fair elections. He also has a constitutional duty to "take care" that the laws be faithfully executed, and their argument is the things he was doing was coordinating with state and local officials, dealing with his own advisors in order to check on election integrity because he was being told by some of his advisors that you have a problem with election integrity.
There is actually some case law, immunity can be quite broad. If you look at Trump's original brief to the district court, there is some case law saying in the context of civil immunity, it's not really a question of whether we like or dislike what the official was doing or whether it was well intended or poorly intended. It's just a question of is it something that had to do with the job at all or not. I think the better argument is DOJ's argument, but Trump's lawyers are putting up a game fight here. Like I said, I give them not a better than 50% chance, but I give them what I guess you would call a puncher's chance. They could get lucky and land one punch here.
Brian Lehrer: Douglas in Manhattan, you're on WNYC. Hi, Douglas.
Douglas: Hi. Was there an earlier decision, I believe perhaps with the defamation action against Trump with the alleged rape action that went to the Supreme Court where Kavanaugh made a statement that a president is still accountable, that there was no such thing as not being accountable because you're president. It's a vague question. I do remember an action where the Supreme Court specifically-
Brian Lehrer: He made a such a grueling-
Elie Honig: I know what you're talking about.
Brian Lehrer: Was that the Nixon case, Elie?
Elie Honig: No. Well, I think the caller's talking about something with Trump. I think I know what he's referring to. Back in 2020, the Manhattan DA, I think it was Cy Vance at the time, served a subpoena that Trump tried to block. Trump tried to argue, "Well, because I'm the sitting president, I can't be subpoenaed." That went up to the Supreme Court, and the Supreme Court rejected that argument by a 7-2 vote. In fact, it was only Thomas and Alito in favor of Trump and Kavanaugh and Roberts, and I think Barrett at the time, I forget if she was on the Court at the time.
This was an example of what I talked about before where Kavanaugh actually joined with the liberals and said, "No, you're not immune from a subpoena. You would have to provide evidence even if you're sitting president." It's close to this case. That's worth looking at, but being subpoenaed is a very different ballgame than being indicted. That's a good observation. There had been some hints out there that they don't want to place the president entirely above the law, but immunity will be a separate question.
Brian Lehrer: Listeners, we can take other calls now too, on the Supreme Court facing the Trump trial questions of how broad immunity is for acts committed while Trump was president. Of course, that whole period leading up to January 6th, he was president. What counts as obstructing Congress on January 6th itself? 212-433-WNYC, call or text. 212-433-9692. Before we go on to the really fascinating, and as I said in the intro, and I'll say it again later, really mind-blowing for me, obstruction question.
Why does the special counsel in the immunity case want to fast-track it? It means he's skipping over those two other lower court levels that you were describing and going right onto what a lot of people consider a pretty Trump-friendly Supreme Court just in pursuit of getting the trial to start as scheduled in March. People might ask, "Why does he care about starting in March rather than later to roll the dice in this way to the largely Trump-appointed Supreme Court?
Elie Honig: It's a great question. If this were to play out in the normal course, no expedited anything, not only is this going to blow past March, this would go past November. This would mean this case could not get tried before the election itself. This is the only chance. I think the March trial date is doomed either way because by the way, another thing that happened yesterday, Judge Chutkan, the district court judge, said-- she's right, legally. I don't think she wants to, but she correctly acknowledged legally, "I cannot do anything while this is pending through the appellate court."
Even if the appeals courts rule against Trump and keep these charges on the books, Judge Chutkan can't resume until they're done. That's going to be in February-ish. You can't just start again and then have a trial three weeks later. There's a lot of pre-trial stuff that has to be done. I think Jack Smith realized this is the only realistic way to get this trial in before the election. Brian, I do have to say, it's entirely clear to me that Jack Smith feels it's very important to get this case tried in front of the election. He won't say so, he refuses to ever acknowledge the election in his filings because I think he understands that to do so immediately would be seized on.
Look, he's being political, he wants this in before the election, but that's clearly what's driving him. This is the only way to achieve that objective, to get the Supreme Court to take a case that they're almost certainly going to take anyway and get it done more quickly in order to try to preserve, if not the March 4th trial date, at least a pre-election trial date.
Brian Lehrer: Would the special counsel want a pre-election trial for political reasons, because he thinks the American public should be able to take the outcome of a trial into account if Trump is the Republican nominee, or is it for legal reasons because if Trump is re-elected, he could pardon himself or some other reason?
Elie Honig: I think it could be either of those. It depends how you look at it. I think Trump supporters would say he just wants to nail Trump and hurt him before the election. I think a perhaps more neutral observer would phrase it the way you said it, which is the American people deserve to know either way before they go into the ballot booth and pull the lever. There is the legal pragmatic argument of he wants to avoid a scenario where Trump can-- but Trump, if he becomes president, is going to be able to pardon himself either way. There's no way-
Brian Lehrer: Can he do that, by the way? For you as a legal analyst, can he pardon himself?
Elie Honig: Well, the only honest answer to that is we don't know. Anyone who gets on air and says, "No, he cannot because it violates what John Adams wrote," or whatever years ago, you have to acknowledge upfront all you're doing is guessing because it's never happened. We don't know.
Brian Lehrer: Not been tested.
Elie Honig: I can tell you the obvious argument against it is it goes against the whole rule of kings and a person can't be the judge in his own case. On the other hand, the actual part in power in the Constitution has no stated limitation on it. I don't know which way that'll go. I also do want to flag, I don't agree that it's proper for prosecutors to think about and anticipate and try to frustrate or preclude a pardon. I don't think that's the prosecutor's job. It's not your power. You have plenty of power as a prosecutor, believe me. I was a prosecutor for 14 years.
Pardon power is not your power. It's intentionally given to the chief executive, whether the president of the United States, the governor of a state. I had a state case of mine pardoned by the then Governor of New Jersey, Chris Christie. You know what? You go, "All right, that's our system." I don't subscribe to that view. I think it's actually inappropriate for a prosecutor to say, "Let me do this in a way that makes it impossible to pardon." I know it's hard to divorce it from the Trump scenario, but I actually think that's an overextension of prosecutorial power.
Brian Lehrer: I guess this is a question for a political analyst, not for you, a legal analyst. If all these indictments of Trump have been so good for his poll numbers, imagine how good a conviction will be. That's another show. Before we run-
Elie Honig: Let me say the converse. I've talked about this with David Axelrod, who's a brilliant Democratic strategist, says, imagine if he doesn't get convicted. Imagine if some of these charges get thrown out, which I guess we'll get to in a second. Imagine if there's a hung jury, what's that going to do to his poll numbers?
Brian Lehrer: Here's the other case the Supreme Court accepted yesterday and will definitely hear in the coming months. It questions whether Trump and hundreds of the actual rioters can be charged with obstructing an official proceeding obstructing Congress from certifying the election. Elie, I said it leading into this, this one totally blows my mind because I think the claim is, and please tell me I'm wrong, but I think the claim is that if they tried to obstruct the certification by shredding documents, they could be convicted for that, but physically rioting to prevent the election from being certified might not be obstruction under the law. What?
Elie Honig: You've basically got it right. I think I will echo your what. Here's the deal. Dozens of January 6th rioters, people who stormed the Capitol, were charged with obstruction of an official proceeding. The theory is very commonsensical as you just laid it out. The official proceeding is the Senate counting the electoral votes and the obstruction is the rioting part. I thought it was a natural fit. I thought it was a smart use of that. A lot of those, maybe all of those defendants challenge it. They said, "Well, the obstruction statutes, A, meant to apply to what you said, shredding documents or tampering with witnesses, and B, it's meant to apply to court cases, civil or criminal cases, and not Congress."
There's actually a separate statute for obstruction of Congress. All the lower court judges thus far-- not every judge, but the outcome of every one of those cases has been, "No, of course, this applies." I think we have a pretty good sense where this is going to go. One of these rioters, a guy named Fisher, appealed this and he lost. He was basically told, "No, obstruction does apply to January 6th." The Supreme Court yesterday, in what I think it was very surprising, said, "We're going to review this."
Now let's do a little tea leaf reading. It would really surprise me if the Supreme Court said, "We want to take this case because we want to tell all the lower courts, 'Hey guys, good job. You got it right.'" It seems to me very likely the Supreme Court is going to say, "This does not apply." Now, I will say it only takes four justices to take a case. It takes five to decisively rule on a case, so there may be some wiggle room there, but the tea leaves to me are suggesting they are likely to rule that obstruction, the obstruction of an official proceeding law, does not apply to what went down in the Capitol on January 6th.
Brian Lehrer: Let me get one level deeper into the weeds on this as my head explodes from your answer. Because I'm going to read from the actual statute as I saw it in The Washington Post.
Elie Honig: It's a very broad statute.
Brian Lehrer: Exactly. It says, "Anyone who corruptly alters, destroys, mutilates, or conceals a record document or other object or attempts to do so with the intent to impair the object's integrity or availability for use in an official proceeding," that would refer to like shredding documents, "or otherwise obstructs, influences, or impedes any official proceeding or attempts to do so 'can be punished.'" What does the word otherwise mean? [chuckles]
Elie Honig: I agree. The other thing I would note though is one thing that's been very consistent across the last two decades of Supreme Court jurisprudence, and it actually has crossed party and ideological lines, is the Supreme Court, pretty much any time it has looked at a criminal statute, has narrowed the scope of that statute and not expanding it. For example, when the governor of Virginia was convicted, Bob McDonnell, it was actually a Jack Smith prosecution from years ago, was convicted of taking money in exchange for favors. He was convicted, it was upheld on appeal, and the Supreme Court unanimously reversed it and said, "No, it applies more narrowly."
By the way, that was unanimous. Ruth Bader Ginsburg agreed with Justice Thomas on that one. Another example is Bridgegate, Chris Christie wasn't charged, but other people around-- We all remember this. The Supreme Court threw out a couple convictions in the Bridgegate case because again, they narrowed the scope of a criminal statute. This Supreme Court is not into broadening criminal statutes. They are into narrowing criminal statutes.
Let me get to the next level here. If the Supreme Court throws out these cases, here's what happens. The convictions of a bunch of January 6th rioters will be thrown out. Now, some of them have other convictions for trespass or destruction of property, so it's not like they're going to walk scot-free, but some of them will have convictions thrown out. Donald Trump, the Jack Smith Federal indictment of Donald Trump, there are four charges. Two of them are obstruction. One is obstruction and one is conspiracy to obstruct. They will be out the window.
Now, that has some major consequences. Let me tell you what Jack Smith options are, he's in a really difficult spot. He's got three options now. One is try the case as soon as possible and then just keep your fingers crossed, but the problem is, if he tries the case, he gets a conviction, and then the Supreme Court comes back and says obstruction is no good, that case is going to get reversed. Those two charges are out and all of the other cases, those charges, they'll say those are infected.
Brian Lehrer: Or it could wait.
Elie Honig: Yes. Option two is he can drop those two charges and just say, "Look, there's uncertainty right now, I'm going to proceed on the other conspiracy counts." The problem there is that will look like weakness. Trump will immediately declare victory. "They've already admitted they overcharge me." These are the two most serious charges, by the way. These two have 20-year minimums, the others have 10 and 5, and it'll limit Jack's permissibility to put in evidence of the actual Capitol riot. Those two charges are the ones that are directly tied to what happened in the Capitol January 6th. The other two are much more aimed at the pre-January 6th conspiracy, so it will narrow down what he can do.
Option three, what I think he's going to do, Brian, is what you just said. I think he's going to wait. I think he realizes he probably has to wait, but he's also-- look for this in the next couple days or maybe a week. DOJ is going to ask the Supreme Court to expedite that one as well because, in the normal course, this ruling would come out in June or July, the end of this term. They can't wait that long, so I think we're going to see that is the option.
Brian Lehrer: [unintelligible 00:44:12] the election, yes.
Elie Honig: I think you're going to see them ask the Supreme Court to expedite that as well, and they're going to hope they can get that in by February or March or something and then try whatever's left of it.
Brian Lehrer: We're over time, but give me 30 seconds on this. Why would the obstruction through rioting charge apply to Trump at all because he didn't physically riot? He did all those other things, but he didn't physically riot, so why are we even talking about this with relation to Trump?
Elie Honig: That's a good question. He's not charged with the physical riot. He's not even charged with incitement of the physical riot. I guess it might depend on how exactly Jack Smith defines the attempted obstruction of Congress. My understanding is Jack Smith argues that Trump's intent here was to slow down or somehow delay the actual counting of the ballots, and he did it through other means, but not through the riot.
Yes, maybe there's a needle that can be threaded there if you're Jack Smith, but I'm not sure I'd want to try to thread it that finally at the risk of getting overturned later, which would be catastrophic.
Brian Lehrer: Elie Honig, senior legal analyst for CNN, a former New Jersey and federal prosecutor, host of the podcast Up Against The Mob, and author of books, including his latest, Untouchable: How Powerful People Get Away with It. Elie, we appreciate all your time. Thank you so much.
Elie Honig: Great talking to you, Brian. Thanks very much.
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