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BREAKING: Trump Immunity Struck Down by Court of Appeals

Sekulow Radio Show / Jay Sekulow & Jordan Sekulow
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February 6, 2024 1:24 pm

BREAKING: Trump Immunity Struck Down by Court of Appeals

Sekulow Radio Show / Jay Sekulow & Jordan Sekulow

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February 6, 2024 1:24 pm

The U.S. Court of Appeals for the D.C. Circuit has ruled that it is “unpersuaded” by President Trump’s arguments for presidential immunity for any actions he took on January 6. How will this ruling affect President Trump’s 2024 presidential election bid? The Sekulow team discusses the big win for Special Counsel Jack Smith’s federal prosecution against President Trump, the ACLJ’s recent filing at the U.S. Supreme Court to preserve voting rights, the ongoing border crisis, DHS Secretary Alejandro Mayorkas’ potential impeachment – and much more.

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Breaking news today on Sekulow as Trump criminal immunity struck down by court of appeals. Keeping you informed and engaged. Now more than ever, this is Sekulow. We want to hear from you.

Share and post your comments or call 1-800-684-3110. And now your host, Jordan Sekulow. Alright, welcome to Sekulow. We are going to be taking your calls. And again, this is one of those shows where it is fine to ask as many questions as you need because things can get complicated quick.

We're going to try to make it as clear as possible for you. You probably saw breaking news this morning, if you haven't yet, that a DC court of appeals has held that member Jack Smith was looking before he started his criminal trial against Donald Trump on four issues. Those four issues were conspiracy to defraud the US by overturning the election results, a conspiracy to obstruct an official proceeding, the obstruction of an attempt to obstruct the certification of the electoral vote, and conspiracy against the rights of one or more person to vote and to have their votes counted in violation of US code. Now, all of those, again, were challenged by President Trump under these were done as Presidential acts, Presidential, there's immunity here, so you can't bring the charge. Congress could impeach and things like that, but can't bring charges. And yet- They have.

And look, I want to start with kind of a basic here. This case goes to the fundamental issue of Presidential authority and the role of the courts and the President. And this is why this matters to the American people.

Put Donald Trump aside. The idea that a President of the United States can be sued, I mean, think about this, is one thing. Clinton versus Jones. Clinton was sued. Criminally prosecuted for a decision you make while President puts the courts, the Article III branch of government, in priority. The reason you have Presidential immunity is so that a President makes a decision while he's in office, even a controversial one. Going into Iraq, George W. Bush, looking for weapons of mass destruction, there are none. Not closing the border, so fentanyl's getting in and people are dying. Can the President then be criminally charged for accessory to murder because he let this happen while they were President or in Trump's situation?

So here is what's fundamentally at stake here. This court, the DC Circuit, ruled that first, immunity evaporates the moment you leave the White House. So on January 20th at 1201, you're free game to be sued or indicted. Yeah, so I said on page three of their opinion, for the purpose of this criminal case, former President Trump has become Citizen Trump with all the defenses of any other criminal defendant, but any executive immunity that may have protected him while he served as President no longer protects him against this prosecution, even though all of the acts he is being prosecuted over happened while he was President of the United States. These are not acts post-presidency.

No, right. That's totally different issue, but they're saying he's lost the ability to assert the executive immunity because he's no longer in office for things he did while in office. Here's the problem with this, and this is what I want you to understand. We're taking your calls at 1-800-684-3110.

We've opened up our phone lines. This totally fundamentally changes the way our government operates. We believe in a unitary executive. The President is uniquely the only branch of government that is one person, the President. And the reason you have immunity, and I've argued immunity cases for Presidents before the Supreme Court of the United States, three of them. And the reason you have forms of immunity is so that a President is not worried while they're making a decision that they could be criminally prosecuted for it the moment they leave office.

That is what's fundamentally wrong with this decision of the DC Court of Appeals. But we'll get into the particulars of how they set it up, but this is on a very fast track and changes kind of the dynamic here. So we'll take your calls at 1-800-684-3110.

That's 800-684-3110. There's a lot to unpack here, but understand what this is doing. It changes the role of the President of the United States. By not having immunity from prosecution for decisions made as President, it really opens a Pandora's box of who is running the government.

And it makes the judges, the Article 3 branch of government, the courts, the most powerful. 800-684-3110. I think no question is off limits here because it's complicated stuff, folks.

1-800-684-3110, we're breaking down for you. This is a very big, big decision. And a related case that the Supreme Court will talk about as well. We'll be right back.

Welcome back to Secular. If you're just joining us, there's been a lot of breaking news this morning about a DC Court of Appeals case involving President Trump, Jack Smith, and the issue of Presidential immunity. We are talking about acts done as President of the United States, not acts done after your President of the United States or acts done before your President of the United States.

Can you be prosecuted for those acts? And the DC Court of Appeals, three-judge panel, two Biden appointees, one George H.W. appointee, a per curiam opinion, all three, again, agree there is no executive immunity and no defense from that.

I want to read again what I think is, again, a statement that would make anybody running for President in the future rethink it potentially. Because, quote, for the purpose of this criminal case, former President Trump has become citizen Trump with all the defenses of any other criminal defendant, but any executive immunity that may have protected him while he served as President no longer protects him against this prosecution, except that this situation is being prosecuted for acts he took while President of the United States. Well, because part of the responsibility as President is to make sure the laws are faithfully executed. So he had questions on the election. He was President of the United States at the time.

To say, Andy, that there's two things in here that are startling. One is the one you just read, which is this idea that executive immunity expires the moment you leave office, which that means every President is subject to prosecution when they leave office. And then the second one, which I'll get into in a minute, is that they make the statement at this stage of the prosecution, we assume that the allegations set forth in the indictment are true. Well, now it's the opposite.

You're presumed innocent. I mean, so they've got, I mean, not only do they have it backwards here, but it has put a very dangerous precedent in place here. I think it's a very bad opinion on the two points that you raised among others, but to say that somehow Presidential immunity evaporates after you leave office is ridiculous. To say that this President, while acting as President of the United States, is not only longer clothed with immunity once he leaves office and he becomes just citizen Trump, is to chill any action taken by a President to preserve, protect, and defend the constitution while he's in office that he or she may think is appropriate. And it makes them subject not just to civil actions, but to criminal prosecution because they no longer have that cloak of immunity once they leave office. A ridiculous concept.

Yeah. And then this idea that you flip it, that you're presumed guilty for the purposes of the opinion. I mean, I want you to put yourself in this situation. You're in the Oval Office. You're the President of the United States.

You've got to make a tough decision. I'm taking Donald Trump out of it. The war in Iraq. There are reports that there's weapons of mass destruction.

You think that's dangerous for the United States. You order invasion of Iraq. They invade Iraq. There's no weapons of mass destruction. But you continue the war.

Okay. But the war continues. You leave office. Can you now be prosecuted for that decision?

Or are you immune because it was an official act as President? And that's the point here. And I think that's the danger in all of this that we're seeing in this opinion. Now, it also presents another difficult situation, and that is from a timing standpoint, because everybody wants to know how does this affect the election. The court here gave the appellant, Donald Trump, until the 14th of February to file a motion for stay at the Supreme Court of the United States. If the court grants the stay, well then, obviously, it will not go back to the district court for trial. If the court does not grant the stay, the court will, it will go back to trial.

And then the question, it's not going to be in March because she's already taken it off the calendar, but it could be in May or June. So you could actually have a trial before the election. Now, another aspect of this is you could file a motion for a stay at the Supreme Court, and the Supreme Court could take that motion for a stay and turn it into a petition for certiorari. That is correct. The Supreme Court can do anything at once at that point.

That is correct. There's actually a rule on this in the Supreme Court practice that says they can do this. So there's a lot of moving parts here. We're getting a lot of calls and questions coming in. We're going to take those as we try to break this down for you. Why are we involved in this? At the American Center for Law and Justice, anytime you're dealing with constitutional, what's called separation of powers, what are the roles of each branch of government? That's how we function as a government. We have checks and balances.

But here, under this opinion, the Article III branch, the judges, now become the preeminent because they are authorizing that Presidents can be criminally prosecuted for actions they took as President within the scope of their responsibilities and duties. Let's take calls. There's a lot of people calling in.

1-800-684-3110. Sure. Jerry in Tennessee online too. Hey, Jerry. Hey, you know, what you're looking at, you're not on point. The point is that he was doing this for his own good, not the good for the country. I understand if you do something as a President, such as you're talking about mass destruction of weapons or something of that sort, but this is not what he's doing. He's doing something for the benefit of him, not the country. So let me ask you this, Jerry, and I don't believe, by the way, that President Bush should be sued for the war in Iraq, but you remember one of the reasons that a lot of complaints were leveled and a lot of arguments against President Bush on the invasion of Iraq is when he made the statement was, well, Saddam Hussein tried to assassinate my father.

I mean, so that was a big statement at the time. Do we now, under your theory, that was for his own good, not for the country's own good? And here's the problem with this. Who gets to decide what's the own good? So, Jerry, here's the problem. Who gets to make the decision here? You don't think election integrity is to the good of the country? To an extent, the President shouldn't worry about whether or not elections were good or fraudulent and that he can't ever question whether or not election done to the United States was fraudulent? He can't have any discussion about that or he gets prosecuted?

Jerry? Hosted all means of going through the process of that there and never has once presented any type of evidence. I'm sure this is a question a lot of people have. That's conflating the issues. That is not what the law is all about here.

The law is about when a President makes a decision as President, whether you thought he had evidence for it or not, when he makes a decision as President within the scope of his constitutional obligation, which Andy is, to make sure the laws are faithfully executed, which would include election integrity or whatever it is. I'm not getting into the merits of this or that. It doesn't matter.

Can you be prosecuted criminally for that? And I think the answer to that has to be no. Although this court said yes. D.C.

Circuit says yes. I think it was an erroneous statement. What really bothers me is the statement, quote, at this stage of the prosecution, we assume the allegations set forth in the indictment are true.

Never. I've prosecuted all my life. I've always was told that the charges in an indictment are simply that, charges, that what the state has alleged is simply an allegation and it's not true unless and until it's proven to a jury and they come back beyond a reasonable doubt. This court has said we assume the allegations in the indictment are true.

What a statement. Yeah. Well, first of all, you're presumed innocent. I mean, let's be clear.

I mean, the presumption is a presumption of innocence, which this court also eliminated by that statement. But you got to get to the fundamental here. Let's go ahead and take another call. Yeah. Jeff in North Carolina, online one. Hey, Jeff.

Hey, guys. So just a quick two-parter question. My first part would be, would this apply to President Biden first day leaving office? Could the state of Texas sue him for what he's done on the border there? And then second part would be, could then a private citizen sue him for wrongful death to their children with a fentanyl crisis that's come across the open border? You're actually bringing up a case that actually was a case. Nixon versus Fitzgerald. It wasn't involving fentanyl, but it was involving a civil servant employee who was fired, believed that Richard Nixon was behind the firing, and brought a civil suit after the President left office and the Supreme Court said, no, you can't do that.

He's immune from that. And then you bring up, which is a good point also, Jeff, the criminal side of this. Could an action be brought against President Biden for not doing dereliction of duty at the border and forget a civil suit, a criminal case against him?

And I think this may not be popular, but let me tell you what the answer is. It should be no, you can't sue the President for an act of omission while they were President of the United States in the scope of their authority. Under the Jones-Clinton precedent, if it's a civil, so if it's an individual bringing the case and not the government, the President can be while President. So we're talking only here about ending up behind bars, really, is what we're talking about.

Criminally prosecuted because of acts you took as President of the United States. This case could well be decided to a jury in Washington DC before the election. This case could go, depending on what the Supreme Court does here, this could be a June case. Now, there is already pending at the Supreme Court, a case involving one of the counts of the indictment, which is the obstructing of Congress. That case, the Fisher case, is already pending at the Supreme Court. I'm going to show you, we filed a brief in that case. And we're not supporting any party in that. We just put our legal position in there, which is basically it's overbroad.

It violates First Amendment free speech, which is what Judge Cassis said in the case. So I think you have to have us, you have to be cognizant of the fact of these are very important cases that affect the functioning of government at its core, which impacts everybody that's listening to this broadcast. Because then, you know what happens? Presidents have to make really hard decisions.

And sometimes those decisions are wrong. But you're going to have it where they're going to have to have a battery of lawyers when they leave office, because they're going to be fighting over and criminally prosecuted over every decision they made that wasn't popular. We'll take your calls at 1-800-684-3110.

We're opening up some lines, 800-684-3110. And at that point, this is not the United States of America. And the whole Democratic idea of a Democratic Republic that we've tried to tell the world is so great, crumbles completely on its own. No, it's like Third World. Yeah. It looks like Third World. This is what you do in Third World countries. Yeah.

Look at most Third World countries, former Presidents usually end up in prison. Yes. Including Israel, by the way. And they come out, they win again.

Including Israel, where the Prime Minister, you can get a whole battery of them. Yep. All right, we'll take your calls. We'll be back in a moment. Welcome back to St. Kiel.

We are taking your calls to 1-800-684-3110. So this case has come out of the US Court of Appeals for the District of Columbia, that the President loses all executive immunity the moment they are no longer present. I mean, that is a line out of the case immediately. And so that they can only use the defenses of just a normal citizen, and they can't use any defenses.

Of course, I was doing this as President of the United States. One of the cases is at the US Supreme Court. Now, it's not President Trump, it's one of the January 6th defendants who has challenged one of the things they were convicted of, which is something that President Trump has been charged with by Jack Smith, which is obstruction of and attempt to obstruct the certification of the electoral vote. So that is actually at the US Supreme Court now, unrelated to whether or not that provision was constitutional, was it overbroad in the use of that against some of the people who entered the Capitol on January 6th.

It does include some of the other criminal charges, though, brought against President Trump. The questions next, I think people are going to have, of course, dad, and we'll get into everybody's that got calls about this, but before we do, so this is a Court of Appeals. There's an en banc and there's a Supreme Court, but here they go right to the Supreme Court in their opinion. Yeah, well, they're saying that you have to go to the Supreme Court to get a stay or they're sending it back. So that's the procedural dilemma that the Trump lawyers are going to have to deal with right now procedurally. Professor Harry Hutchison has joined us here in the studio.

Harry, let me get you a read on this. What's your take overall? Well, my reading of the opinion of the DC Circuit is that they misunderstood the question that they were presented with. So they argue on the first page of their opinion that the indictment alleges that former President Trump understood that he lost the election and that the election results were legitimate, but that he nevertheless was determined to remain in power. Instead, they should have read that particular fact pattern as follows, that President Trump understood that he had won the election and the election results were illegitimate. Therefore, he pursued actions in his official capacity to vindicate his opinion. Now, you can debate whether President Trump was right or wrong in having that opinion, but if you accept the latter interpretation of his conduct, then I think it's easy to see that virtually each and every act that he took was designed to vindicate his opinion. Whether it was right or wrong, he took action to vindicate his opinion. And if he took action to vindicate his opinion while President, and assuming that action was legitimate, I would argue that immunity would still apply going forward.

In other words, he doesn't lose immunity simply because he is now citizen Trump as opposed to President Trump. Let's go to the phones. 1-800-684-3110. Let's go to Bruce in Colorado, online 6. Hey, Bruce.

Hey, thanks for taking my call. I'm wondering if we're opening the door to mayhem because executive decisions have unintended consequences and if anybody can come up with a causality link between a decision and what's happened to them. I mean, from the mayor all the way up to the President, I mean, are we going to end up with an ocean of litigation?

Well, more than litigation, you're going to open up an ocean of prosecutions. And this is where it comes to the American people. Do you want a President, I'm not talking about which party here, you want a President that's looking over their shoulder every time they make a decision as to whether they could be criminally prosecuted, Andy, for an action they took within the scope of their responsibility? And the answer should be no, a President shouldn't have that burden. And a President should not be burdened with the idea that if he makes a decision based upon his best judgment, that the laws are being faithfully executed and observed, that he's going to be criminally prosecuted and lose executive immunity once he leaves office. That's a ridiculous proposition.

And I think this opinion of the DC circuit is very misguided. Yeah, I mean, just to underscore to everyone listening here, the long-term implications of something like that, you realize that you could very much make the case that in every President in the future, when a hostile party comes into the executive branch, so if you're a Democrat followed by a Republican, and they didn't like something that you did that was a tough decision, they could at least, if they want to, bring criminal prosecution against you. That's what this would set up.

It doesn't mean that they will necessarily convict you, but it does mean that they can bring criminal prosecutions against you. So this becomes hyper—you think the country's partisan now? If you can start putting the former Presidents in prison because they were a different part of you, made decisions you didn't like that may have led to bad outcomes, but they were policy decisions they made as President that usually in the past would never have been thought of if you'd been prosecuted? This is, again, not the country I don't think any of us want to live in, because who on earth would run for President of the United States anymore? If this is the kind of—you know what happens in countries that people do run like this? People like the guy who just got reelected even though he didn't have it, he was term limited in Ecuador, who won't step down? That's the kind of people who will continue to run, and you end up with dictatorships because people will say, I'm not going to be criminally charged. I'm not going to—and this is how the Supreme Court also has to be careful about losing the authority they have gained for these hundreds of years under Marbury versus Madison, these major cases. They're not just giving out advisory opinions.

Well, Harry, I was going to ask you about this. For the American people, what does this opinion do? Well, I think this opens the door to a tsunami of litigation and prosecution going forward. So, for instance, if we take President Biden's current policy on the border with Mexico, we could argue that to the extent that someone was harmed because an individual was able to cross the border because of lax enforcement by the Biden administration, that President Biden perhaps could be subject to criminal penalties. So, for instance, a state prosecutor in Texas could bring a case and then could argue that President Biden, former President Biden by then, is only entitled to the defenses available to citizen Biden. I think that's an intolerable situation.

So, whether you are a Democrat or a Republican, I think it's very, very important to protect the office, the office of the presidency, and to grant the President of the United States immunity with respect to official acts. Again, folks, we'll take your calls. 1-800-684-31. Tim, we've only got about a minute here, but we've got a second half hour coming up on secular. Yeah, I want to say something. I want to break this down to a fundamental, and the fundamental is this. Presidents make hard decisions, and sometimes they get it wrong. They're not always right, and I think you could go with it. And Republican, Democrat, it doesn't matter. I mean, Presidents make decisions that are not popular. They make decisions that are wrong or incorrect.

Here's the question. Do we then want the President to not make any decisions? Because the safe thing to do here would be make no decision. Because if I make a decision, I could be criminally prosecuted. Because according to the DC Circuit, which by the way, is one of the most powerful court of appeals in the country, but according to the DC Circuit, here's what happens. I leave the presidency, I'm now fair game to any 3,200 prosecutors throughout the United States and the federal government for criminal charges, for getting the civil suits that could come.

Is that what I want? Is that what we want as a constitutional republic? Because I think what Jordan said is right. You're not going to have one if this is the case. And that's why this decision is wrong. The next question, we'll get into this in the second half of the broadcast, is will the Supreme Court weigh in here? And will they weigh in here soon enough so that there is not a criminal trial before the election? And I think there's a chance there will be here a decision.

We'll see. 1-800-684-3110, second half hour coming up. Keeping you informed and engaged, now more than ever, this is Sekulow. And now your host, Jordan Sekulow.

All right, welcome back to Sekulow. So I'm going to say it one more time, though, of course, the Court of Appeals, D.C., has issued its opinion on Presidential immunity in regards to President Trump and the four counts that Jack Smith would like to bring against President Trump in federal court. These are criminal charges. And the ruling and decision for the court, I mean, this is how it stands. Quoting it, for the purpose of this criminal case, former President Trump has become citizen Trump with all the defenses of any other criminal defendant, but any executive immunity that may have protected him while he served as President no longer protects him against this prosecution. Now, this is not, though, a case about any acts he took when he left office.

These are all about decisions and acts he took while in office, but they are saying the moment that he leaves office, even though they were acts during his office, he gets prosecuted like anybody else. And that that immunity, Harry, expires the moment he leaves office. What is that immunity worth? Nothing. I think Jordan is absolutely correct. The immunity is worth nothing. So, for instance, if we take the Afghanistan decision by President Biden, I think on by any measure, it was a disastrous decision.

In fact, it was so bad, it could not be classifiable as a failure. Nonetheless, if we accept this particular decision after Joe Biden leaves office, he arguably could be sued on some criminal basis with respect to that catastrophic withdrawal. I think at the end of the day, we don't want Presidents looking over their shoulder. We want them being able to make decisions in real time, even if those decisions are indeed wrong.

That's right. Presidents do make mistakes, but to criminally prosecute them for that and this opinion also, so you understand, changes our constitutional structure, which we have the presumption of innocence, the presumption of innocence when you're charged criminally. Here, Andy, they turn that really on its head. That really bothers me because I'm quoting, at this stage of the prosecution, we assume that the allegations set forth in the indictment are true. How can you make that statement? You three judges of the brilliant DC circuit make a statement that the allegations of the indictment are true.

They're merely charges. You don't make an assumption that they're true. And as Harry was saying, and I think it's very interesting, take, I stopped on the page three of the opinion and took a deep breath and did a gulp because I changed the words. Let's read this. For the purpose of this criminal case, former President Biden has become citizen Biden with all the defenses of other, any other criminal defendant, any executive immunity that may have protected Biden while he served as President no longer protects him against this prosecution. Do you want that to be the case?

Even though you think his decisions on the border and Afghanistan were misguided, I don't, I don't think it's unpopular to say it, but it's true. He should be protected by immunity for that. And he doesn't become citizen.

He partakes of that immunity and he's clothed with that after he's leaving office, as I think President Trump should be. Do we have time for one call here before the break? Let's do quickly. Bill, go ahead. You're on the air. Yeah.

Thanks for taking my call. Uh, I may be rehashing what you said, but if I can use names, um, this decision, if it goes through, it would not only, uh, hit, uh, President Biden, like you said, but wouldn't it also affect, uh, President Obama? Everybody. A hundred percent. Any immunity is wiped out for everybody under this opinion. So President Obama doesn't have it. President Clinton doesn't have it. President Bush doesn't have it. President Trump doesn't have it. President Biden would not have it. And that is ridiculous.

I don't care if you're a Republican or a Democrat because that's absurd. All right. We're going to take your phone calls.

When we come back from the break, Rick Renell's joining us 1-800-684-3110 to get your calls in 800-684-3110. Understand something here. It's re shaping the way government operates. That's the real danger of this opinion. The idea that it's, it, it, it makes a presumption of guilt is horrific. The idea that immunity would expire the moment you leave office means there was no immunity.

It just changes entirely how we operate as a country. And folks will take your calls 1-800-684-3110 or support the work of the ACLJ at And again, we'll continue to discuss this and answer your questions. We'll be right back on Sekulow. All right, welcome back to Sekulow.

We are continuing to take your phone calls 1-800-684-3110. We are joined by Rick Renell, who's a senior advisor to us, the ACLJ, a former cabinet member in President Trump's administration. And Rick, I just want to get your thoughts initially, this opinion out of the DC court of appeals.

I'll read you the sentence because this is, to me, I mean, especially because you were in the intelligence world where again, a lot of hard decisions have to be made, tough decisions, some which the outcome will be great, others, the outcome is uncertain, but you still have to make a decision. And in this case, these three judges have held that for the purpose of this criminal case, that former President Trump, and you can insert any other President's name in there if this holds for the future, has become citizen Trump with all of the defenses of any other criminal defendant, but any executive immunity that may have protected him while he served as President no longer protects him against this prosecution. How would that have changed your job as director of national intelligence if you knew that any, you know, opinions you may have given the President or decisions, different kinds of decisions he could have made, he could be criminally prosecuted for later on if somehow the party who comes into power is the other party and disagree with those policy decisions? Well, look, I'm no lawyer, but my first thought was citizen Barack Obama and citizen George W. Bush and citizen Bill Clinton should be very nervous because they all started wars and Donald Trump didn't start any new wars. What's gonna happen if individual families decide to prosecute past Presidents for their decisions in which their loved ones were killed? This is an extremely slippery slope. And what I hear is that this DC court, which is obviously all lefties, are trying to say, even though these decisions that we're talking about were made when President Donald Trump was in office, now that he's gone, we can go backwards and look at these decisions when he was in office and second-guess him. That's a danger, dangerous for American national security because if you can be prosecuted later on, what kind of decisions are you gonna make as a President? I think you're not.

I mean, Rick, what I said is you're not. I mean, a President now has to worry about not just civil lawsuits, but criminal exposure as it relates to very difficult decisions. And sometimes, whether you're a DNI, whether you're the President of the United States, sometimes you get it wrong. And the idea that now you'd be subject to criminal prosecution for this, to me, fundamentally changes the way Presidents will make decisions, which will impact every citizen of the United States. There's no question there's a chilling effect that is going on right now for every single person who speaks to the President and who is a cabinet secretary and a political appointee.

Because if the President is gonna be held later on to account for his decisions that somehow mistakes were made or unintended consequences were made, then we are going to have individuals not making the right decision. They're gonna make a personal decision. Let's go to Ward in Idaho on line six. Hey, Ward, welcome to Sekulow. You're on the air. Hi, Ward.

Hey, thanks for taking my call, guys. You know, my question would be, especially when they make that statement that they assume the charges are true based in the indictment, what their political affiliation is for those judges. Two of them are Democrats, one's a Republican appointee. So, I mean, I don't think, I think they just are mistaken and wrong. There's two fundamental aspects of this, Andy, that are wrong. Both the idea that immunity, as Harry said, stops when you're no longer President, but also shifting the burden of proof and the presumption of innocence and removing it.

Both of those things are very troubling in their set forth in this opinion in a very troubling fashion. The burden of proof is on the government in a criminal case. Beyond a reasonable doubt. Beyond a reasonable doubt. With the presumption of innocence. That's right. And you don't go in saying, I'm assuming that the facts stated in the indictment are true. You don't do that. And you don't lose immunity once you leave a Presidential office.

You don't lose immunity. I don't like what President Biden's policies are on the boarder at all. I don't know any right thinking person who does, but I don't think that he should be prosecuted after he leaves office criminally for making those decisions because he was President when he made them. And Harry, that's the problem with this opinion are those two fundamental legal decisions.

Absolutely. So Presidential immunity was once granted and it should continue with respect to each and every official act that the President took while in office, whether we agree or disagree with that conduct or not. Rick, we've talked about the cheapening of impeachment under President Trump to the point where they would impeach when he was no longer President and the chief justice didn't even show up.

Didn't even show up because he knew under the constitution and the laws of the country that it wasn't an actual impeachment. Now we're looking at something maybe even more dangerous, which is the cheapening of criminal prosecutions where you lose your rights and liberties and can end up with some of these charges President Trump is facing with long sentences in prison. Look, the one thing that the Democrats are doing because they hate Trump so much is they're literally attacking common sense and suspending the constitution. They literally are going to do anything they can, change any rule, change any law, attack any institution, manipulate any institution just to get Donald Trump. We talk a lot about attacks on democracy. I think that the Democrats who constantly say that Donald Trump is attacking democracy need to look in the mirror and see what they're doing to our institutions in order just to get them. Yeah, I mean, I think that does seem like the point.

I mean, but dad, this is the issue. Right now it feels like it's all about Trump and I think that is dangerous for people on both sides of the aisle. I mean, it does feel like Democrats are acting that way. What they're not thinking about though is the long-term implications. Well, the long-term implication is it affects every single... I went through the list of living Presidents, Jimmy Carter, Bill Clinton, Barack Obama, George W. Bush, President Obama, President Trump, President Biden, and the 47th President of the United States, whoever that is. And Rick, in your position, when you were the DNI, because it would apply to you too, the idea that your decisions could result in a criminal prosecution, not because you knowingly went outside the law, but because you got it wrong and something bad happened, which happens, what decision do you then make? I mean, I'm looking back and thinking, thank God Donald Trump made all the right decisions to make sure we didn't go to war.

That's what you... The war thing is a big deal here because you're right. When you think about Iraq, remember people tried to do that against George W. Bush.

Oh yeah. I remember the protests throughout America that was calling for him to be tried as a war criminal. George W. Bush should remember he was fingered by the left as a war criminal and somebody who should show up in the Hague. And who knows what could happen now with this decision, how they're going to look backwards and how they're going to interpret decisions and the implications of these decisions.

I think this is a terrible slippery slope. As you point out, Jay, even for somebody like me advising sitting in the Oval Office, advising the President about national security issues, that's going to have a chilling effect on all of those individuals and what kind of information they present. You, me, lawyers that advise the President? I mean, we're advising the President? I mean, this is the White House counsel?

I mean, this is unbelievable. Let's take another call before... Yeah, Lewis at Utah on line three. Hey, Lewis.

Good morning here. My question was, will this affect the elections? I mean, that is why, Rick, right off the bat, this is why it's all happening. We know that.

Yep. They waited three years before they launched all their attacks on Donald Trump, 91 different charges. So I think it directly is about the election. They're trying to do everything they can to make sure that he's prosecuted, sullied in the court system so that people will somehow not vote for somebody who's under a court proceeding. And I do think it's backfired. If they would have just chose one charge, went after him with one or two things, that would have been different. But when you do 91 charges in multiple courts and multiple levels and you wait three years, I think people see that this is just a manipulation of the court to get them.

But they did. When you look at the long-term implications, not just the short-term implications of the election, what Lewis also wanted to know was what happens if he does get elected and he's got these charges against him? Okay. So under the cases that we argued at the Supreme Court, they would not be able to move forward with those cases if the President was President. First of all, he could order the Department of Justice because it's an Article II branch of government to dismiss the prosecution. So the President has that authority?

Yeah. You risk impeachment, but you'd have to fight it out. The President clearly has that authority.

Okay. So that's not an impeachable offense. The President can say, no, this is all political. I'm not letting this go forward. It's a waste of American resources. It's not right.

President Biden could do that too, for that matter. I mean, that's the nature of this. Hey, Rick, we're out of time. We appreciate it coming on, especially we're planning on talking about something else, but obviously this has become news of the day. Thanks for coming on, Rick.

Appreciate it. Folks, again, we're going to continue the discussion and take more of your phone calls. We got one line open, so you can grab it now. 1-800-684-3110. That's 1-800-684-3110. And we're going to try to get to all those calls to answer as many questions as we can. 1-800-684-3110. As always, support the work of the ACLJ at

That's Hey, welcome back to the broadcast, everyone. We're going to go through and take your call. C.C.

Hiles joining us. We've been going through this opinion because it's a lengthy opinion. Obviously, it just came out right before we went on air. And C.C., you said there's something on Marbury v. Madison, which is the fundamental who reviews, the Supreme Court has this kind of reviewing authority. Right, so as I'm reading through the 57-page opinion, and I agree with all the comments that have been made so far, but in Marbury v. Madison, there's a specific statement that says official acts can never be examinable by the courts. But, of course, this court, and, of course, that's what Trump argued. But this court just simply says, oh, well, Trump misreads that. And as you read through the multiple pages of that discussion, it's the same thing of they actually will say something that actually supports Trump's statement, but then in the next sentence, they'll say something exactly opposite, which is the same as what they did, as has been pointed out, of, you know, we're going to assume all the allegations are true. And in the very next statement, they say, oh, but they haven't been proven by the evidence.

And here's the difficulty with that whole thing. So what they're saying is we've got to assume that the charges as set forth in the indictment are true and then determine if there's immunity, which is the opposite of what Trump's alleging. But what they're saying with Marbury v. Madison is official acts. And then, of course, this court's saying basically that the election integrity issue was not an official act.

I mean, how does the court get to make that call? So the question that came up to your argument, remember that got all the question was could the President order SEAL Team 6 to take out their opponent? No, that's not an official act. That's very easy.

Okay. That's not an official act. Can a President question the election results and concerns that have been raised to him by other people as part of his duty to faithfully execute the laws of the United States?

The answer has to be yes. I mean, it was in the media. People are showing, you know, cameras of full counting, vote boxes, voting and all that stuff. All right. Why can't you question that? I mean, you're sitting there as President.

Because this court says none of that matters is the reality. Let's go ahead and take these many calls as we can take. Yeah. So we're gonna go now in order and I mean, it's close calls in order, but we'll just go right to Darren in Massachusetts on line one. Hey, Darren. Yes. Hi, gentlemen.

Thank you for taking my call. So when we talk about immunity evaporates and then it becomes citizen Trump. So as a former President, after he leaves office, doesn't the President of the United States remain and have continued to have secret service protection? Of course.

For the rest of their lives. And they can even extend to, I mean, that's not just Presidents, by the way. That could go to other cabinet officials.

We know that. So this idea that Presidential immunity, Harry, evaporates at 1201 on January 20th means there's no immunity in the first place, which means decision-making now becomes, well, why would you make a decision that's controversial? Because you could end up in jail for it. Like you have in other countries. Absolutely. So each and every decision Donald Trump has made, or for that matter, uh, President Biden has made or Obama has made now is subject to being second guessed, uh, after the fact. And I think that is no way to allow the President to fulfill his duties to faithfully execute the laws of the land.

And so I think at the end of the day, we don't want to, um, impose that particular straight jacket on Donald Trump or any other President for that matter. I agree. Let's take another call. So go in order. We'll go to Harry in West Virginia on line two. Hey Harry. Hello.

Uh, thank you. Uh, my question is, won't this create a domino effect and start taking the immunities that everybody has? Jay mentioned lawyers for the President or others, but lawyers lose immunity to protect their clients or newspaper man to protect their sources. Well, I mean, there's always been, you know, throughout our history, there's been challenges on, uh, like the first amendment privilege for reporters.

I handled a case, a big magnitude case on that just not that long ago and was successful in protecting the constitutional privilege that reporters have. But you know, in the President's situation, it's even more amplified. And I think that's the concern. So when you go to the Marbury versus Madison issue that CC was talking about, the concern there is you've actually made the court the super priority over the executive. Absolutely. Which is very dangerous with separation of powers.

Now it's supposed to be, go ahead. They thought the judiciary would be the weakest branch and it is turning into be the strongest branch. What they say goes. The question will be, does the Supreme Court take review of this case or even, even further, will they grant a stay in the next eight days or else this goes right back to the trial court? So, Andy, that, I mean, that presents if you're the defense lawyer here, what are you thinking? Be ready? I better be ready with my, uh, motion for stay. Yeah, but what if that stays denied?

And if that stays denied, then I'm, then I'm going to have a trial before Judge Chutkin sometimes in the district court in DC. So that could happen. I mean, I think we got it.

You got the reality is this could happen. She took it off the schedule right for now. For now, for March, but that doesn't mean it came out. She's still kind of waiting to see what happens with the Supreme Court, this appeal, ultimately. And the Supreme Court, if they grant it could expedite it very quickly.

We just, we just lived through one. So could a case like this, could the decision come out before the election? Sure.

Here's why. Before the election, it could come out before. Here's what they do. Just like in our case that we're handling right now, petition for surgeries were filed in December, late December and January 5th. They were granted. We had to have our brief in on January 18th. The other side had 14 days to get their brief in.

We had to file our reply brief this past Monday. Argument is in two days. You could have a decision in a week. So could this go through the Supreme Court of the United States? Well, if they, if the Supreme Court wants to review it, I think all of that could take place with the decision in a month. And then if it's against the former President, I think you're in trial in June. So trial in June. So it's probably right on the edge. Right on the edge of the 90 day rule. And so it could technically come down before the next election, but certainly before you were inaugurated, if you did win.

A hundred percent. Let's take another call. So if you think about the issue, you don't even want to think about really the issues as composed for our nation, but I think you all realize. Oh, this is unbelievably significant.

Yeah. If I was the Supreme Court, what I would do is take my time. I would take my time. I don't think that's what's going to necessarily happen. But if you take your time through an orderly process on something like this, then justice will prevail. I'm not talking about how the decision comes up, but at least you followed process. You rush something like this of this magnitude. Listen, the Supreme Court did not like that, that the special counsel tried to skip the Court of Appeals. They said, no, we're not going to do that. So maybe they don't, but if you don't get that mandate in there by the 14th, a granted mandate, staying the opinion, it's back in her court.

So that's why I think you have to be ready for trial. Go ahead. All right. Cindy in Texas on line four. Hey, Cindy.

Cindy, last call of the day. Go ahead. Hey, I think you guys basically answered this, but my question was, doesn't this essentially strip the power from the executive branch and give it to the judiciary? Yes.

And that's the problem. That's exactly what Marbury versus Madison was saying, that official acts can never be examinable by the courts. Can we take that last call, Bill? Can we open it back up?

It's going to be, has that shifted the power from the executive in Congress down to all the power of the courts, which is exactly the opposite of what the founders wanted? Answer, yes. Yeah. I mean, I think the courts are supposed to be the place that we're all turdies, but we're telling you the court is your place of last resort. Right.

Not the place you go before the election. I mean, I hope we've explained to you what the ramifications is for the presidency. It will never be the same.

No, this is a dangerous decision. And I hope the Supreme Court looks at it. They don't understand what they wrote there. I mean, you have to realize these are, I know two of them are newer, but you know, one's probably in their eighties, it's been there since H.W. Bush. They read that sentence and realize how crazy that sounds. They wrote it and they signed it.

Yeah. I mean, it's pretty troubling. How bad that could be for Joe Biden. Any President. Any cabinet official.

I mean, there's not the same- A lot of their friends in Washington. Well, the advice you're giving. Yeah, it's just, again, folks, I hope we answer as many questions as we could on this. Is it just Tuesday?

It is just Tuesday. And this is a separate, and this, you know, one of these matters, one of these charges is at the Supreme Court. We didn't even get a chance to talk about that. Again, support to work with the ACLJ at You know, part of that support goes to having this team on this broadcast and the team that you don't see so we can provide a whole hour of analysis like this for you. Support our work. We'll talk to you tomorrow.
Whisper: medium.en / 2024-02-10 10:46:05 / 2024-02-10 11:06:19 / 20

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