This is the audio transcript FT News Briefing Podcast episode: “Swamp Notes — Supreme Court Considers Presidential Power.”
Sonya Hutson
The U.S. Supreme Court heard a pretty big case this week. . .
news clip
We will hear arguments this morning in Case 23-939, Trump v. United States.
Sonya Hutson
. . . And the verdict could go a long way in determining the former president's fate and the power of future presidents.
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This is Swamp Notes, FT News Briefing's weekly podcast. We talk about everything that will happen in the 2024 US presidential election. I'm Sonya Hutson. This week's question is, “Is the president immune from criminal prosecution?” Joining me here is James Politi, Washington bureau chief for the FT. Hi James.
james politi
Hey, I'm glad to be here.
Sonya Hutson
And then there's Stefania Palma, the FT's US legal and enforcement correspondent. Hello Stefania.
Stefania Palma
Hello, Sonya.
Sonya Hutson
So, Stefania, I'd like to start by asking what this lawsuit is all about and what arguments Donald Trump's lawyers are making.
Stefania Palma
So the Supreme Court's arguments essentially stem from a federal indictment accusing President Trump of trying to overturn the 2020 presidential election. He is accused of conspiracy to defraud the United States and obstruct official proceedings. Now to protect himself from that incident, his lawyers are actually arguing that he should be absolutely immune from criminal prosecution. Their theory is that former presidents cannot be prosecuted for acts committed in their official capacities unless they have been convicted of similar crimes through impeachment proceedings. One theory of granting presidential immunity is essentially that the president . . Although he feels threatened by the idea that he could face future criminal prosecution for actions he committed while in office, this is clearly an extremely difficult job and a very high-stakes decision. , in which case it would not be possible to actually execute it. their responsibility.
Sonya Hutson
James, did it sound like the Supreme Court justices were sympathetic to those arguments? I mean, what was the big moment that stood out to you from the hearing?
james politi
Well, some of the judges were sympathetic. I think some of the conservative justices, Alito in particular, said at one point that if the president is not allowed to retire peacefully and is afraid of criminal prosecution from his political opponents, then, “I don't want to be allowed to retire peacefully.'' . .
Samuel Alito voice clip
Won't that lead us into a cycle that destabilizes the functioning of? . .
james politi
. . . That could cast a shadow on American democracy for years to come.
Samuel Alito voice clip
. . . And we can look around the world and find countries that have witnessed this process where the losers are thrown into prison.
james politi
Some justices are now looking for a compromise. They didn't talk much about deterring President Trump-like actions after the 2020 election. They discussed in more detail what this means for our time and for future presidents in terms of their ability to get the job done. And they are tempted to send it back to the lower court by instructing the court to decide which acts are private and which are public and therefore should be excused. It seems like he is being driven. So if there is a delay, if it's sent back to a lower court, a trial that was actually supposed to start in early March could be postponed until after the election in November, so President Trump would be advantageous to
Stefania Palma
And it was interesting to see liberals actually trying to address broader issues in relation to Trump's actions in this case. I think one of the judges who tried to cut through all the noise and address that very issue was Ketanji Brown Jackson. Because at one point she said, “Everyone please stop.” Because they were really stuck on what the boundaries were for officials. conduct and private conduct. And she said, “Wait, wait, wait.” If we allow that kind of immunity, you really have. . . There is no incentive for the president, the president-elect, to really consider the consequences of a potential crime. And she added a great quote about how this could potentially turn the Oval Office into something like the epicenter of criminal activity in the United States.
Sonya Hutson
oh. So, while I'll talk about these future implications in a moment, I'd like to focus on the immediate implications of this for now. James, what impact do you think Thursday's oral arguments will have on President Trump's campaign?
james politi
Well, it would be in Trump's great interest if the trial were postponed at this point, and even after the election. What we're seeing at this point is that he's already in court in New York on charges of falsifying business documents to cover up “hush money” payments. As a result, he has to spend four days a week in court, limiting his ability to campaign to some extent. He will suffer even more if more cases go to trial before the election. So if this is delayed, he will be very, very happy. In particular, the charges in the federal case, particularly in the January 6 election overturn case, are so serious, potentially even more serious than the New York state case, that they really cloud his efforts to win back white people. This is because there is a possibility of it being thrown. House.
Stefania Palma
I think people who analyze these cases against Trump often say that these are like two lines to a possible Trump victory. One is a more classical judgment of the merits of these cases. Another factor is timing. And a key strategy of the Trump team was to keep delaying, delaying, delaying as much as possible. They have argued in court that this is a large-scale political witch hunt against him and are asking that these proceedings be postponed until after the election. Therefore, any delay is already a big victory for him. The issue of timing is that some of the more serious trials won't conclude by November, and there are countless questions about what could be done to keep these trials essentially delayed if Trump were to win. occurs. , but potentially even throw them out. At that point, he would clearly have the power to appoint the attorney general of the Justice Department. In theory, obviously, the department is independent of the White House. But it's possible. . . There is a world in which the Justice Department under a new President Trump could dismantle these cases.
Sonya Hutson
So we talked earlier about how the justices spent a lot of time talking about the big picture of this case and the future implications. How would you feel if the Supreme Court ruled in favor of Trump? What does that mean for the country going forward?
james politi
I think it paves the way for future authoritarian American presidents. Maybe Trump and someone else. But clearly, if there is legal precedent that says the president has complete immunity from anything he does, that means that suddenly some of the important checks and balances in the American system have actually been removed. In the short term, I think the credibility of the Supreme Court will definitely suffer if we have a divided opinion and it just causes delays. . . They would appear to have sided with Trump by other means.
Stefania Palma
This is probably . . . Having to decide such politically charged cases is essentially a court's worst nightmare. I would argue that this may be one of the most important cases ever heard by the court, particularly as it relates to the functioning of the U.S. government. That clearly raises questions about presidential accountability. It raises questions about the separation of powers. But many experts are also raising questions about national security. This is one of the now infamous questions posed by one of the lower court judges hearing immunity cases. You know, she was asking Trump's lawyers if they were looking for absolute immunity. . .
Judge Florence Pan voice clip
Has there ever been a president who ordered Seal Team 6 to assassinate a political opponent? [and] Will those who are not impeached be subject to criminal prosecution?
Audio clip of Trump's lawyer John Sauer
If he were impeached and convicted first.
Judge Florence Pan voice clip
Is your answer “no”?
Audio clip of Trump's lawyer John Sauer
My answer is yes.
Stefania Palma
And he was basically saying, well, unless they've already been convicted by impeachment. It raises a series of fundamental questions about such fundamentals as how this democracy works.
Sonya Hutson
Yeah. As we've seen in the past two impeachment trials, I think impeachment is an inherently political process, not a criminal justice-driven process.
Stefania Palma
yes. And that's what Trump critics say is impossible for something as serious as a potentially terrible crime. Should we really rely on an inherently political process that is not inherently objective?
Sonya Hutson
Okay. I'm going to take a short break. And when we come back, we'll do an exit poll.
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[LIFE AND ART FROM FT WEEKEND PODCAST TRAILER PLAYING]
Sonya Hutson
And we're back to the exit polls. There, we talk about something that didn't happen during a presidential campaign and apply rigorous political analysis to it. So former Congressman George Santos — I don't think he needs any introduction — called off his long re-election campaign this week after raising exactly $0. Who is the big winner here? Mr. Trump? Is it Biden? Or are you an American citizen?
james politi
I'd like to narrow it down to the poor people of Long Island who had to endure perhaps the craziest two years of their political lives. I think they are the real winners here.
Stefania Palma
I think the potential big losers are those who are big fans of mixed metaphors and big typos in their social media posts. (Laughter) I think Trump can fill that gap. If you think about it more seriously, I think that Mr. Trump's move may be a good thing for Mr. Trump in the sense that it nip this in the bud. This story had the potential to garner a lot of attention just for its sheer weirdness. And part of Trump's strategy now to counter all of these accusations is to take over as much of the airwaves as possible, speak to his base, and deliver a message of victimhood. And to be honest, it kind of worked. So every time he's indicted or the state of Georgia releases his mugshot, fundraising spikes. So as far as he's concerned, the more spotlight the better.
Sonya Hutson
He no longer has to compete with George Santos. Okay. I would like to thank my guest, James Politi, FT Washington bureau chief. Thank you, James.
james politi
Thank you, Sonya.
Sonya Hutson
and Stefania Palma, a legal and enforcement correspondent in the United States. Thank you, Stefania.
Stefania Palma
thank you.
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Sonya Hutson
This was FT News Briefing's US political show 'Swamp Notes'. If you'd like to sign up for the Swamp Notes newsletter, there's a link in the show notes. The show is mixed and produced by Ethan Plotkin. It is also produced by Lauren Fedor. We would like to express our sincere gratitude to Mr. Pierre Nicholson. I'm your host, Sonya Hutson. Her executive producer is Topher Forhecz and Cheryl Brumley is the FT's global head of audio. Check out more US political analysis from the Financial Times next week.
