>>> IF THERE WAS ANY HOPE THAT DONALD TRUMP'S ARGUMENT OF ABSOLUTE IMMUNITY WOULD GET A SMACK DOWN FROM THE SUPREME COURT, THAT BASICALLY EVAPORATED YESTERDAY. TRUMP'S DEFENSE ARGUED THAT A PRESIDENT WHO CALLS FOR THE ASSASSINATION OF HIS RIVALS OR SELLS NUCLEAR SECRETS TO A FOREIGN ADVERSARY MAY BE CONSIDERED ACTING OFFICIALLY AND THEREFORE IMMUNE FROM PROSECUTION. EVEN A PRESIDENT WHO ORDERS A COUP COULD BE IMMUNE FROM PROSECUTION. THE COURT'S CONSERVATIVE JUSTICES HEARD THE DEFENSE AND THE BUNKERS HYPOTHETICALS AND NOT ONLY ENTERTAINED THEM, THEY APPEARED TO EMBRACE THEM. IN HIS PIECE FOR THE ATLANTIC, THE TRUMPIFICATION OF THE SUPREME COURT, HE WRITES TRUMP'S LEGAL ARGUMENT IS A PATH TO DICTATORSHIP. THAT IS NOT AN EXAGGERATION. THE CONSERVATIVE JUSTICES HAVE SEEN HARBINGERS OF TYRANNY AND UNION ORGANIZING, CIVIL RIGHTS LAWS AND UNIVERSAL HEALTHCARE PLANS. WHEN CONFRONTED WITH A LEGAL THEORY THAT ESTABLISHES ACTUAL TYRANNY, THEY WERE SIMPLY INTRIGUED. AS LONG AS DONALD TRUMP IS THE STANDARDBEARER FOR THE REPUBLICANS, EVERY INSTITUTION THEY CONTROL WILL COMPORT ITSELF IN HIS IMAGE IN AN EFFORT TO PROTECT HIM. JOINING ME NOW IS LEAH LITMAN, PROFESSOR AT THE UNIVERSITY OF MICHIGAN SCHOOL OF LAW AND ONE OF THE COHOSTS OF THE GREAT PODCAST, STRICT SCRUTINY. THANKS FOR BEING HERE TONIGHT. I THOUGHT IT WAS A VERY POWERFUL IDEA INSOFAR AS THE COURT HAS RESPONDED SO STRONGLY TO TYRANNICAL CLAIMS OF LIBERAL OVERREACH ON A NUMBER OF ISSUES, BUT WHEN PRESENTED WITH ACTUAL TYRANNICAL PLANS BY A CONSERVATIVE, DEMURE WORD FROM TAKING IT OUT. WHAT YOU MAKE OF THE ARGUMENT HE OUTLINES THERE? >> I THINK HE IS EXACTLY RIGHT AND REALLY ONTO SOMETHING. AND SOME OF THE EARLIER CASES WHERE PRESIDENT JOE BIDEN'S EXECUTIVE POLICIES WERE CHALLENGED, YOU HAD FOR EXAMPLE JUSTICE KAVANAUGH TRYING TO EQUATE THE FORGIVENESS OF STUDENT DEBT WITH PRESIDENT FDR'S INTERMENT OF JAPANESE- AMERICAN CITIZENS DURING WORLD WAR II, SUGGESTING THAT WAS A GROSS ABUSE OF EXECUTIVE POWER AND EXECUTIVE OVERAGE. ANOTHER CHALLENGE IS, TRUMP APPOINTED JUDGES LIKENING STUDENT DEBT RELIEF TO THE LAWS THAT ENABLED THE RISE OF HITLER. ALL OF A SUDDEN WHEN DONALD TRUMP GETS TO THE SUPREME COURT AND ARGUES THAT HE CAN ATTEMPT TO OVERTHROW THE GOVERNMENT AND NOT FACE ANY ACCOUNTABILITY FOR DOING SO, THEN THEY ARE WILLING TO DO THIS AND DEBATE THIS LIKE IT IS A NORMAL LEGAL QUESTION AND ENTERTAINMENT AND THEREFORE ALLOW DONALD TRUMP TO POTENTIALLY DELAY ANY CONSEQUENCES, AGAIN, FOR HIS EFFORTS TO EFFECTIVELY OVERTURN THE RESULTS OF A VALID PRESIDENTIAL ELECTION. >> I ALSO THOUGHT THAT THE WAY THAT THEY ENTERTAINED IT WAS REALLY WEIRD. IT WAS ALMOST LIKE EVERY TIME THE DETAILS OF THE PLOT WERE BROUGHT UP, THEY WANTED TO PUT ON, EFFECTIVELY, BLINDERS, AND SAY WE WERE NOT HERE TO TALK ABOUT THAT. WE ARE HERE TO TALK ABOUT WHAT THIS PORTENDS FOR FUTURE ADMINISTRATIONS. WHAT DO YOU THINK THE REASONING BEHIND THAT BEHAVIOR WAS? >> YOU KNOW, IT IS DIFFICULT TO KNOW BUT YOU ARE RIGHT THAT JUSTICES ALITO, GORSUCH, AS WELL AS JUSTICE KAVANAUGH RELENTLESSLY INSISTED ON NOT DISCUSSING THE ACTUAL FACTS OF THIS CASE BECAUSE THE ACTUAL FACTS OF THIS CASE INVOLVE AN ATTEMPT TO INTERFERE WITH THE PEACEFUL TRANSITION OF POWER. INSTEAD THEY HYPOTHESIZED RANDOM FUTURE PRESIDENTS WHO MIGHT ATTEMPT TO REFUSE TO LEAVE OFFICE IN ORDER TO AVOID THE RISK OF CRIMINAL PROSECUTION, EVEN THOUGH THEY WERE FACED, RIGHT NOW IN THIS VERY CASE, WITH A FORMER PRESIDENT TO ATTEMPTED TO REFUSE TO LEAVE OFFICE AND IS NOW TRYING TO ESCAPE THE RISK OF CRIMINAL LIABILITY FOR DOING SO. I THINK IT WAS THEIR EFFORT TO DISTRACT FROM THE FACTS OF THIS CASE. THE FACT THAT THE EVENTS LEADING UP TO AND INCLUDING JANUARY 6 ARE A VERY REAL THREAT TO OUR DEMOCRACY AND RULE OF LAW AND INSTEAD THEY ATTEMPTED TO DISTRACT THIS CASE AWAY FROM THE FACTS, SO THEY COULD DISTRACT US FROM THE VERY REAL ISSUES FACING OUR DEMOCRACY. >> OR MAYBE THE HORROR OF WHAT HAPPENED WAS TOO MUCH FOR THEM TO ACTUALLY ENTERTAIN AND RULON. I DO WONDER AT THE END OF THE DAY IF THEY REMAND THIS BACK TO DISTRICT COURT AND BECOMES PART OF A SECONDARY PROCEEDING -- WHAT IN THE END IS THE POINT OF TAKING UP, WHY DID THE SUPREME COURT TAKE THIS CASE UP. THE SCUTTLEBUTT WAS THAT THEY WILL REJECT THESE PRESIDENTIAL IMMUNITY CLAIMS, BUT THEY WANT TO BE ON RECORD BECAUSE THIS IS HISTORIC. IF THEY ARE NOT REJECTING THE CLAIMS AND JUST SENDING IT BACK DOWN, WHY TAKE IT UP OTHER THAN TO SHAKE AMERICANS CONFIDENCE IN THE INTEGRITY OF THE COURT? >> I THINK THE REASON TO TAKE IT UP IS TO POTENTIALLY DELAY THE PROCEEDINGS AND LAITY TRIAL UNTIL AFTER THE ELECTION AND DEPRIVE THE AMERICAN PUBLIC THE OPPORTUNITY TO SEND THE QUESTION ABOUT WHETHER DONALD TRUMP VIOLATED LAWS INCLUDING THE INSURRECTION AT THE CAPITAL AND WHETHER THAT VIOLATED CRIMINAL LAW. THEY MIGHT END UP REJECTING TRUMP'S MOST EXPENSIVE NOTIONS OF IMMUNITY AND INSTEAD USE THIS CASE TO ADOPT SOME UNCLEAR LEGAL STANDARD THAT THEY ARE GOING TO LEAVE TO THE LOWER COURTS TO APPLY AND SUGGEST THAT MAYBE, PERHAPS SOME OF THE ENTITIES INVOLVED AGAIN IN THIS ATTEMPT TO INTERFERE WITH THE PEACEFUL TRANSITION OF POWER, MAYBE THOSE ARE OFFICIAL ACTS THAT ARE ENTITLED TO IMMUNITY. >> WHAT YOU ARE SAYING, I ABSOLUTELY UNDERSTAND ITALY THAT COULD POTENTIALLY GET TRUMP OFF OF ANY ACCOUNTABILITY, THAT THAT WOULD BE AN EFFECT OF THIS, BUT YOU ARE SUGGESTING SOMETHING REALLY PERNICIOUS, WHICH IS THAT THE DELAY IS INTENTIONAL. THAT THAT IS SOMETHING IN THE MINDS OF THOMAS, ALITO, AND OTHERS. DO YOU THINK THAT IS HOW FAR THIS COURT HAS BEEN ADULTERATED? THAT WE CAN SAY CONSERVATIVES ARE NOT ONLY CONSIDERING POLITICS HERE, THEY ARE BEHAVING IN AN EXPRESSLY POLITICAL WAY FOR THE GAIN OF ONE PARTY. >> I DON'T THINK WE CAN RULE OUT THAT POSSIBILITY. IF YOU COMPARE THE COURT TREATMENT OF THE TRUMP IMMUNITY CASE TO PREVIOUS CASES, IT LOOKS LIKE THEY ARE DOING THINGS DIFFERENTLY HERE AND IN WAYS THAT ADVANTAGE DONALD TRUMP. IN THE DISQUALIFICATION CASE, FOR EXAMPLE, THEY DECIDED TO HEAR THAT CASE QUICKLY AND SCHEDULE ORAL ARGUMENTS IMMEDIATELY AND ENSURE A DECISION BEFORE THE PRIMARY ELECTION. HERE, BY CONTRAST, THEY DECIDED TO TAKE THE CASE AND SCHEDULE IT FOR ARGUMENT ALMOST TWO MONTHS AFTER THEY DECIDED TO HEAR IT AND IT DOES NOT LOOK LIKE THEY'RE GOING TO ACT IN A SIMILARLY EXPEDITIOUS WAY, WHEN ACTING IN AN EXPEDITIOUS WAY IS CONTRARY TO DONALD TRUMP'S INTEREST. COMPARE THE IMMUNITY CASE TO THE CASE THEY HEARD BEFORE, WHICH WAS THE EMERGENCY MEDICAL ABORTION CASE. IN THAT CASE THE SUPREME COURT ELECTED TO TAKE THE CASE BEFORE THE COURT OF APPEALS EVER WEIGHED IN ON IT, BUT THEY DECLINED TO DO SO IN THE TRUMP IMMUNITY CASE. AGAIN, CREATING AN ADDITIONAL DELAY AND THAT DELAY HAS THE POTENTIAL TO ALLOW TRUMP TO RUN OUT THE CLOCK AND PREVENT ANY TRIAL BEFORE THE ELECTION. SO IT DOES LOOK LIKE THEY ARE DOING DIFFERENT THINGS IN THIS CASE THAN THEY HAVE IN OTHER CASES, ALL OF WHICH HAPPENS TO BENEFIT DONALD TRUMP'S ATTEMPT
