The Supreme Court made history this
week, issuing a landmark ruling one that dramatically expands the power of the
presidency and helps to protect Donald Trump from criminal prosecution. Tonight
what the court's decision means for the 2024 presidential race and for the
future of our democracy itself, next. Good evening and
welcome to Washington Week. It's been a tumultuous and unsettling
time in the nation's capital, a week after what could be one of the
most important debates in American presidential history, the Supreme
Court rules that Donald Trump is substantially immune to charges
that he tried to overturn the last election. Joining me tonight to
discuss this. Dan Balz, the chief correspondent at The Washington
Post. Joan Biskupic is the senior Supreme Court analyst for CNN and
the author of nine black robes inside the Supreme Court's drive
to the right. And it's historic consequences. Jan Crawford is the
chief legal correspondent for CBS News. And Charlie Savage is a
correspondent for The New York Times. Thanks all for being here, Charlie.
I'm going to start with you because the only person who doesn't have
chief in your title and so you know, we wanna we wanna get you in. Um,
but before we get you in, I want you all to watch this just
as a kind of a table setter. Well, when the president does it,
that means that it is not illegal. By definition, exactly. Exactly. So Charlie Historic week. Maybe
understates it. Maybe it doesn't. But I I wanna ask you, uh What does this ruling mean for
the future of presidential power? Not just for Donald Trump, but for
the future of presidential power. Absolutely important question.
Obviously, most of the attention here is going to be on the consequences
of this for the January 6th case, and perhaps the prospect that if
Donald Trump becomes president again, he will not feel constrained by
criminal law and how he wields power the second time But this is long after Trump is
gone, and other people are president and other issues we can't imagine
yet are facing our country. This decision is going to reverberate.
It has unleashed the presidency from the any kind of inhibiting
deterrent of maybe I better not break use my official law powers to break
the law because even if I can't be prosecuted while I'm in office
someday I won't be in office. All presidents going forward will not
have that inhibiting impulse Thanks to what the Supreme Court super
majority has done this week, and you know you opened with that
famous phrase of that, Richard Seen used in the David Frost interview
after he had left office, Uh, been forced to resign in the Watergate
scandal. But it's actually more than that, because in context that
comment from Nixon was about when the president is acting in matters
of national security. Nixon's view was the president can do No
wrong. This case. Uh, this ruling is not limited to the exigencies
of national security situations. It is anything the president Is
immune when he uses his official powers from prosecution, especially
if it's to his core powers. But even this ambiguous middle category
that the Supreme Court left open where presumptively immune if it doesn't
go to his core powers, But it could be overcome the the sense,
I think, rightly points out that the situation that would meet the
standard to overcome immunity. Even in that ambiguous category,
it will be virtually impossible to show because Chief Justice
Roberts said there would have to be No chance, not just some chance
or a small chance. No chance that keep treating that official act as
a crime in that circumstance could be seen as intruding on or chilling
the president's exercise of executive power going forward, right very hard.
Jan, I want to ask you a question, and this is gonna be the school
House Rock. Part of our show. I'm not gonna start singing. By the
way we'll pay you extra if you do, Uh, I. I wanna ask you the the the
the This this question just describe for us what the Constitution says
the president is allowed to do and not do and frame it in the
context of what John Roberts wrote. When you're talking about the core
powers. There are certain things like the pardon power, for example,
that that that you have absolute immunity for and that's what the
court ruled very clearly. And then you have these other powers outside.
That. Where is Charlie outlined your presumptively immune from
prosecution, but not necessarily. So, yes, your conversations with
an attorney general that would be considered an official act your
conversations with the vice president? Yes, it would be considered an
official act. Unless, and I think this is why I kind of reject some
of the framing of this. Sorry. Um I don't believe it's accurate to
say that Donald Trump is generally immune from prosecution for his
actions around J. Six because the Supreme Court and I think this
has really gotten lost in the this whole kind of overheated, um,
rhetoric of what this opinion said. I think it's important to remember
that the Supreme Court rejected Trump's sweeping arguments that he
was absolutely immune from prosecution for his actions around January
6th. They rejected that, and they said he can be prosecuted for his
unofficial acts and much of what Trump did on January 6th. I believe
Jack Smith will be able to show was an unofficial act, not an action
of an office holder, a president but an action of an office seeker,
a candidate and if you go back and look, there's a there's a
comparable case that the court in its opinion signs off on in the DC
circuit, called Blazing Game who suited police officers sued Trump. This
is a civil case, but the DC circuit and an excellent opinion by SR
I. Srinivasan, who was on Obama's short list for Supreme Court,
joined by Greg Katz, who was Trump's deputy White House counsel, came
together and agreed that large swaths of Trump's behavior on January 6th
were unofficial acts. The court cited that approvingly. I think
Judge Chin will take that analysis. And so I believe this indictment
will be narrowed, potentially, and certainly delayed but it still can
proceed. Joan how dramatic A change is this? I actually think of it as
much more dramatic. Um, then Jan does, although I know it's so
dramatic, and it's it's new law. But I think that you have to remember
the distinctions that the court should go on. I think the Chief
Justice John Roberts really envisioned a much bolder Executive than we had before
Monday, and he spoke a lot about the importance of the president. Being
bold, fearless, can't be looking over his shoulder can't fear the
next successive president coming after him. And first of all, just
as a baseline, read so much into executive power, And then secondly,
though, when he did go through, just not in in a firm way. How
all these facts would line up, But in just his rendition, really? Uh,
suggested, in many ways that much of this indictment could wouldn't
be able to go forward. You know, we'll have to see what happens.
But I do think just as expansively as he read executive power, And,
as you know, narrowly as the idea of, um unofficial acts could be
interpreted based on this opinion. It is very dramatic, and I have to
say, just thinking, stepping back and thinking of Chief Justice
John Roberts, who I've watched for a very Long time and I've seen
hedge in many ways and many other cases. I felt like there was no
hedging. This could have been written in some ways by Samuel Alito. Uh
or Clarence Dim. Maybe not Clarence Thomas because Clarence Thomas is
so much further to the right. But this just was I. I felt like a
really bold opinion on the part of the I want to come back to this
because Roberts obviously is known as an incrementalist and institutionalist,
and this seems to be bolder than what we've come. To expect is
that fair Jan or he's always had a very robust view of executive
power. And remember five of the six justices who were in that majority
worked in the executive branch. So I want to talk to Charlie about
that. That too, But before we do that, I want to get into the
politics of this a little bit. And let's start by by listening to what
President Biden had to say about the the ruling. Today's Supreme
Court decision Once again, it will depend on the character of the men
and women who hold that presidency that are going to define the limits
of the power of the presidency. Because the law will no longer do
it. I know I will respect the limits of the presidential powers I have
for 3.5 years. But any president, including Donald Trump, Well,
now be free to ignore the law. Uh and and here is what we'll put
it up on the on the screen. Here's what, Uh, former President Trump
posted on Truth, Social, I'll I'll read it. It was in all capital letters,
but I will read it in a modulated tone of voice. The Supreme Court
decision is a much more powerful one than some had expected it to
be. It is brilliantly written and wise and clears that stench from
the Biden trials and hoaxes, all of them that have been used as an
unfair attack on crooked. Joe Biden's political opponent, comma me many
of these fake cases Now disappear or wither into obscurity. God bless
America. Um, obviously there's some daylight there. Um and and
this is a lot about norms versus laws as well. But Dan before we
get to the the the norms question, I talk about the political impact of this now. Obviously at the outset, we say
that anything that pushes Trump's trials or narrows Trump's trials
pushes them further into the future is good politically for him. But
is there benefits to the Democratic side as well? There may well be. I
mean, I obviously this was a victory for president former president
Trump for the reason you say, which is that it's gonna push the trial
back. Um he's gonna be able to go through the election without having
to face another trial, presumably And and it gives him if he
were to be Re-elected, um Freedoms and powers that he didn't
necessarily have before. It doesn't mean he wouldn't try to exercise
him when he didn't have them, but, uh, so for him, it's a big victory.
But I think the fact that the president that President Biden
came out that night to talk about this is an indication that he and his
team believe this is also something they can use. I mean, they want to
make this election about the threat that they see Donald Trump. Uh Facing the country and What this does is gives them more
ammunition to make that case that if Trump ends up back in the in
the Oval Office, he's going to be able to do whatever he wants. Not
that they weren't going to make that case anyway. But now there
is a Supreme Court decision that they can point to that says he's
going to be a much freer man to do whatever he wants, Charlie. How
much of the power the president, uh has or how much of the power
that the president chooses not to use is just because the president
a A president is a To norms of behavior rather than the law itself.
Historically, I think that the trump presidency that we already
experienced really demonstrated starkly. How much, Uh, constraint
on presidential power is a matter of self restraint by the person
who is in that office. Huge numbers of laws that give presidents
emergency powers for ex situations. Leave it up to the president to
decide whether those circumstances have been met. And so Trump
demonstrated you could just And that there is an emergency today. That
wasn't there yesterday that allows him to spend money on, say, a border
wall with Mexico. That Congress, uh, was unwilling to fund when
he asked them to, Uh, that's just one of myriad examples in which
it turns out that constraints on executive power are as much or
more about norms. Even before this decision, then hard law. I just
want to add one thing to what Dan was saying about how well this
means there won't be a trial in a strange way. They're not a strange
way, but an important way to think about. It's right that I agree.
There's not going to be a trial with a verdict before November, But the
thing the Supreme Court has done specifically at this point is
ordered the District Court Judge Chin to sort through all the things
that are in the indictment and decide. Is this an unofficial
act? Is this a core Executive act? If is it a other kind of exec
Official act that may or may not be the That can be prosecuted and if
so can or can not, and to do that she's going to have to have hold,
uh, at least has the opportunity to hold something of a mini trial
right away. You know, we'll see how extensively she does this.
Does she call witnesses? Does she ask for evidence the same sort
of evidence we might have seen in an actual trial. And so there may
be an airing of what did Trump do when he tried to subvert his
election loss leading up to Janu? 86 and on January 6th not unlike
the January 6th committees, hearings that, in fact, will be aired this
summer or fall, even though it won't be the actual trial, and I'm
sure that Trump's legal team will do everything they can to try to
put off anything like that as well. But Dan talk about the impact of
trials and trial related activities on Trump's popularity with his
base and with swing voters. Well, everything we've seen is that it
hasn't hurt him in the least, Maybe there was a little bit The hiccup
after the conviction that there were some people that pulled back
a little bit. But in general, the race has been quite stable and static
throughout. And, uh, we thought with the indictments a year ago
that that might have an effect it didn't you know, he you know he
cruised through the primaries against all his opponents. The conviction
hasn't had any material effect and and I you know, there's a
there's enormous attention given to these Trials or settings. I'm not sure
that what Charlie is talking about. I mean, I agree with him that there
could be this airing out of the various actions and things I don't
know that that will get the attention say that you know that the hush
money trial got where cable News was following it, you know, minute by
minute, so that's another difference in terms of what voters are going
to pick up and he won't have to be in court, right? And that's
right. Obviously, he won't have to sit there and and fall asleep as
he As he did in the Let me talk. Let me turn back to the Supreme
Court, Joan and and Jan II. I just I'm very curious if you could talk
about what this means, how how you interpret this term and this
ultimate, uh, decision. Um, What does it tell you about the court
today? Joan and then Jan I. I just think it's a real turning point for
this court. You know, we've seen we've seen various steps since
we've gotten the super majority when Ruth Bader Ginsburg died in September
of 2020 quickly succeeded by Amy Coney Barrett. There was a super
majority and you know the power of just one more justice on the
right wing has made such a difference with the reversal of Roe V Wade
two years ago and the ending of all constitutional abortion rights, But
this decision is more in keeping with something that John Roberts
did, for example, in 2013 when he really narrowly construed voting
rights in the Shelby County versus Holder case, or in 2019, rejecting
the idea that Judges could hear partisan gerrymandering cases.
This is kind of a larger question that goes to core democratic
issues. And I think, just, you know, all of us know his background,
cutting his teeth in the Ronald Reagan administration, then being in the
George HW Bush administration, you know, just he has believed in
robust executive power, but what he what he and the majority breathed into Executive authority and protection.
Real protection is of a different magnitude, at least as we understand
it now. And you know, uh, Jan and Charlie have talked about how
things might play out going forward, And maybe it won't immediately
have all that much consequence for for Donald Trump Trump. But I
think in the whole scheme of things what this Supreme court has done
not just for the presidential power but for its own power is big. Its
own power is also Enhanced by the fact that it will be judges deciding
what our official or unofficial acts you know, we have talked about at
other times the imperial presidency. But there's a certain imperial
notion to what the court has done. And just as one other postscript
in other actions that took this term to enhance judicial authority
over federal regulators, Diminishing regulatory authority is of that
piece. I think of, you know, giving the court more authority in
the separation of powers. Let me let me add to your Let me
just add answer that question. Add to your assignment by by by folding
in folding in Sonia Sotomayor and her rather dramatic descent.
Um, she wrote, uh, a at the end of it with fear for our
democracy. I descend and she talked. She gave some hypotheticals that
are quite quite, uh, dramatic, but talk. But talk about the conservative
majority. But tell me where the liberals are. I mean, Joan and
Both have covered the court for over 30 years. Um, and I've never
seen that ever with fear for our democracy. I I That's new. Um And
I think that reflects a lot of the language that we saw this term
from the dissenters. Whether it's in the case involving sleeping in
parks, uh, and whether that could be, you know, kind of brought down
against the homeless. Uh, whether you've got bump stocks, I mean, we
saw some extreme language stocks on weapons stocks on weapons from
Justice Sotomayor, which I think is really kind of a res. Anger and
resentment about the court's decision to overturn Roe versus Wade. I
think there's still dealing with the fallout from Dobbs and the court's
decision to overturn Roe. As far as the executive immunity decision
goes again. Roberts really cares about executive power. He cares
about the structure of government and the and the roles of the different
branches Chevron, the administrative state that's been in which they
overturned. That's been in the crosshairs for conservatives. For years, the
court has not cited it in almost Decade. This is another of his administrative. Yes, that
was one of three cases and in many ways, perhaps the constraining
the the the Burea executive branch Burea, as conservatives would
say, unelected federal bureaucrats to meddle in American life, So
there's three protect the environment and labor and all that. Yeah, There's
three cases. We'll settle that issue, and they scaled back the
power of those agencies in all three cases in significant ways that will
make it harder for the agencies to, I think function, but Again this case, I agree with Dan
on immunity. It helps both sides. John Roberts cares about the power
of the president and at least five or 65. Others do And what they're
worried about is future presidents. They're writing for the ages. They're
worried about a situation which we see now where you've got these,
uh, you know, kind of state level prosecutors who are progressive.
You've got these Republican rogue attorney generals, and it is about
prosecuting future presidents. And, as Donald Trump pointed out,
if you think that Far fetched. As Donald Trump pointed out in
the debate, Joe Biden, he believes could be prosecuted for his
immigration policy. He concedes that at the debate they're worried about,
as Roberts put in his opinion, this routine prosecution, and that
is something that if Trump were to win, and Biden is the loser
after a bitter, divisive campaign, this decision will prevent Donald
Trump's attorney general for pointing a special counsel. But how much
how much of this decision by Joe Biden? How much of this By the
conservative Super majority. It was about making sure that Joe Biden
is in persecuted by Donald Trump. I don't think it's just Joe Biden.
I mean, I think that's a serious concern. Not just Biden future
presidents. Well, the chief wrote that he didn't want to be concerned
with present circumstances. And he really minimized any, uh,
details about January. 6th 2021 You know the dissent said Did you
forget what happened then? Really minimize that, you know. Did not want
to refer to trump much so overtly said. This isn't about Trump. I
don't think overtly or subtly. It was about Biden at all. I don't
think he's I don't think this court was worried about what would
happen to Joe Biden. They might be. They definitely are worried about
the future. But you know, how could they not be aware of the political
situation now John Roberts is is and was an excellent lawyer, but he was also Pretty politically savvy. You know,
when he was in the White House he was aware of he was he he worked
on strategy helped pick judges. He knows he knows the politics
of the situation, even though he, uh, you know, can frame this in
the larger sphere, which I and I think that's truly what he's
interested in. But it's not that he's unaware of Donald Trump and Yeah, Uh, earlier this week when
we had the Manhattan judge say that that case was the sentencing was
going to be postponed Just in case there would be some evidence that
had been used against Donald Trump in that that case, the business
records case, maybe it might not be able to be used. Several people
said to me, Do you think the chief would have ever envisioned the idea
that this ruling could have been used to help Donald Trump
in that Manhattan trial and I don't think so. But, you know, I
don't want to discount that. This is a court and with several clerks
who are just aware of this whole political picture involving Donald Trump in the time that we have left,
Um I wanna talk just for a couple of minutes about the apparent
polarization in the politicization of the court generally and how this
feeds into the largest political trends we're seeing Dan, I'm I'm
sure you have thoughts about the The the the reduced status of the
Supreme Court in the eyes of a lot of different people. It's just
another. There's been controversies, obviously Clarence Thomas and so
on, Uh, talk about talk about what this all means In terms of intense
polarization. Well, we I mean, we are in such a polarized environment that when this court moves to the
right and and I, I think your point is exactly right that we are living in a post dos political It for the Supreme Court.
And that hangs over almost everything they do, and the way people interpret
what they do. I mean, one thing we know is that the that the and
literally the mood in the building At a certain point, right? Definitely
very bitter. I mean, we know that that public opinion has shifted
dramatically against the court that a majority of people before
Dobbs approved of what the court does today. It's down to about 40%
historically low, that's that's the situation we're in. I think
the court is part of the backdrop of any presidential campaign. At
this point, uh, and abortion is in the forefront. Uh, Charlie.
Last thoughts on, uh what this does politically the the the seeing
the Supreme Court as just another partisan and polarized, uh, playing
field for, uh, American politicians. I mean, it's It's certainly a
corrosive aspect of the times we're living in. Is it inaccurate? That's
That's a good question. And I think we'll have to deal with that
question. Uh, on our on our next show, because we unfortunately we
have to leave it there for now. I wanna thank our panel. This is
really fascinating. Uh, I'm promoting Charlie to supreme, uh, supreme
correspond, Supreme presidential powers correspondent. But I want
to thank everyone for joining us and for sharing their reporting,
and I want to thank you the viewers at home for joining us and for more
on the Supreme Court's controversial ruling, Be sure to read the latest
at the atlantic.com. Jeffrey Goldberg Good night from Washington.
