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TRUMP IMMUNITY: New Developments in Appeal to Supreme Court

Sekulow Radio Show / Jay Sekulow & Jordan Sekulow
The Truth Network Radio
February 13, 2024 1:14 pm

TRUMP IMMUNITY: New Developments in Appeal to Supreme Court

Sekulow Radio Show / Jay Sekulow & Jordan Sekulow

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February 13, 2024 1:14 pm

TRUMP IMMUNITY: New Developments in Appeal to Supreme Court.

The Charlie Kirk Show
Charlie Kirk
Sekulow Radio Show
Jay Sekulow & Jordan Sekulow
Sekulow Radio Show
Jay Sekulow & Jordan Sekulow
Sekulow Radio Show
Jay Sekulow & Jordan Sekulow
Sekulow Radio Show
Jay Sekulow & Jordan Sekulow

Today on Sekulow, Trump immunity, new developments in appeal to the US Supreme Court, 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. Hey, welcome to Sekulow. So we're talking about the US Supreme Court yet once again and President Trump. And this time, I think a bit more complicated of a case. If the court decides to make it a more complicated case, this goes to Presidential immunity. And at what point does that immunity fall and you can bring criminal charges against the President for acts that they may have taken during office, which means that you would then have to start defining what is an official act by the President, what is a pseudo official act, and then what is a non-official act. So like all these different ranges and that's pretty, courts don't love doing that.

No, and they even have a third category of on the periphery, and that's actually a legal standard, the periphery of Presidential responsibility. So what has happened is the President's lawyers moved yesterday for an application for a stay of the DC Circuit's mandate pending the filing of a petition for certiorari. Now, what that means is this, the DC Circuit said that there was no Presidential immunity and they gave the President until yesterday to file an action with the Supreme Court.

If he did not, they were going to return the case to the district court who would then proceed to trial, probably in April or May. He did file, the President's lawyers did file. It's an aggressive move in the sense that I wanted to, I would have focused narrowly on the mistake of law that was made was allowing immunity to expire when the President leaves office, which set every living President up for litigation for the rest of their life. Instead, they took a more broad approach saying absolute immunity. I was saying, get a ruling that says, hey, the court of appeals was wrong when it said the immunity expires when the President leaves office. The rule is, it continues, then you have to make a fact finding as to whether the actions taken by the President, President Trump, were within his official activities, or at least on the periphery of those activities, or those that aren't, divide those up. That's not what they did.

They went for a very absolute immunity approach, which I think is a little bit of a tougher standard. And the court issued a minute order just moments ago, and that was that a response to the application, the case now is 23A 745 requested by the chief justice is due February 20th by four o'clock. So on the 20th of February, Jack Smith's office has to respond to the application for a stay. Right now, the proceedings are stopped.

Nothing is moving forward while this pens. My guess is Jack Smith probably responds earlier, but Jack Smith's office has been trying to leapfrog over the normal appellate process because normally when you lost the three-judge panel, the stay stays in place, and you go what's called en banc. You request the entire court to hear it.

You usually have 14 days or so to get that in. That's not what they did here. They are really trying... And remember, the Department of Justice already once tried to go to the Supreme Court and say, hey, skip the Court of Appeals, take it up directly yourself. The Supreme Court said no.

So we'll get into the next segment about where I think it's falling. But the case is now squarely vested at the Supreme Court. And this is different, of course, Jordan, than the case involving whether President Trump will appear on the ballot, which affects your right to vote for the candidate of your choice, whether it's Trump or anybody else. So that opinion should... I think that opinion is going to come out the latter part of this week, early next week.

We should get that opinion. This is a separate case. This is the January 6th grand jury.

And remember, I know this is complicated. There is another case at the Supreme Court challenging a provision, not from President Trump, but it is one of the charges President Trump is facing. And that is the certifying of the election and interfering with an act of Congress where Judge Katzas in the DC Circuit said the law as interpreted by the majority was too broad and violated First Amendment freedoms. That case was granted review by the Supreme Court and it's up as well.

So I want to take your questions on this. Do you believe a President's immunity should end the day they leave office? I mean, that is what the Court of Appeals held. I think the most dangerous line in that opinion is that at 1201, when they're out of office, the immunity goes.

And they didn't discover between official acts and unofficial acts. We want your calls on that 1-800-684-3110. A thank you to our ACLJ champions who make that monthly automatic contribution. If you want to do so, go to and become a champion. All right, welcome back to Secula.

We are taking your phone calls to 1-800-684-3110. If you thought the case involving the 14th Amendment and Section 3 could get complicated, you would come down to Presidential immunity. And how about this? Post-Presidential immunity, which is what we're looking at, at what is at the Supreme Court now. So you've got the filing by President Trump and their team. That then has now been scheduled to the reply. The response has been requested by the Chief Justice a week from today on February 20th. And again, in between now and then, that's staged, so nothing's going to change on that immunity on that immunity case. It's not going to move forward. Effectively, you've got to stay pending the next disposition of the court.

Very narrow, very short. I don't think Jack's, maybe he will take all the way to next week. But what the order says is the response to the application, it now has a number, 23A745A, meaning application, requested by the Chief Justice due February 20th, 2024 by 4 p.m. That will be, Andy, the government's response. That's right. The government will now have, based on what the Chief Justice has decided until February 2024, to respond to what has been termed an application for a stay of the D.C. Circuit's mandate, which was the order to Judge Chutkin to do what we tell you to do.

But they stated, pending the filing of a petition for writ of certiorari. But you know what they're going to come back and say. They're going to come back and say, hey, the D.C. Circuit got it right. That's what they're going to say.

Well, I don't know. I think it's a case of- That's what Jack Smith's going to say. Of course Jack Smith is going to say that I was right in the D.C. Circuit and I should prevail in the Supreme Court if you take the case on the merits. But of course what the President is saying is that unless you take it, the President would face the threat of indictment by an opposing party after changing administrations. I'm reading from the brief. Here's the contra argument. Here's what some lawyers, appellate lawyers are saying.

And this is where it gets a little confusing, but I think people need to understand. Some lawyers are saying the case should go to trial. The facts should be put forward as to what he actually is accused of doing, what acts he took. There will be a trial. There will be an adjudication of guilt or innocence. Then it would go to the Court of Appeals to determine whether the immunity question should have been addressed with official acts or not.

And then to the Supreme Court. The problem is the taint that puts on the candidate running for office. And also the timing of this could get very difficult.

The timing of it. And if you got to look at the U.S. Attorney's Manual and there's a memo that was put out in 2008 by the Justice Department called Election Year Sensitivities. And it's from the Attorney General and it says, you got to be careful, Justice Department, that you don't do political prosecutions or sorry, criminal prosecutions for the purpose of affecting any election or for the purpose of giving an advantage or disadvantage to any candidate or political party. If you look at the U.S. Attorney's Manual, that specifies it not within 90 days of an election.

Okay. So the election is November 5th. So you'd go back October 5th. Then you'd go back to August 5th. Then you go back September 5th. If the trial did not start until July, which is now they're saying the earliest it could because March is off, it would go all of July and all of August.

Boy, you are right up to that, right up to it. What do you think Judge Shutkin does? I think Judge Shutkin does not try this case. I don't either, unless it's all dismissed, unless they deny it. Because here's what they could do.

I mean, we're kind of talking out loud, Jordan. They could turn this application for a stay into a certiorari petition, meaning they could say, you don't have to file a certiorari petition. We're going to look at the application for a stay, which lays out the legal issues and that's your certiorari petition and then grant or deny it very quickly. So I mean, again, this can move very fast. I don't see it moving very slow because the justice says no, people are voting. I think President Trump, the ability to campaign would be impacted by this as we were just talking about by Andy.

But people probably are not understanding this idea. So they could file for a stay and they could turn the stay into a certiorari grant, a certiorari grant that would necessarily mean that they could make an opinion with or without an oral argument. Correct. Would they order more briefing? They may order an additional round of merits briefing.

But not necessarily. But I think they would and I think now, there's another thing that can happen here and I think it's 50-50. They could just deny review. And if they deny review. It goes right back to Judge Shutkin.

She sets it up for a trial calendar. And President Trump is being tried. I think then he's tried. Then I think he would be tried before the election if it was in the next week or two.

Although Judge Shutkin has been very, very sensitive to this political process that is ongoing collateral to her criminal case. We're talking out later, but if it was February and they turn it down next week, Supreme Court says, I'm not going to hear it. It returns to her. It does return to her.

Okay. So she says, I'm not going to do it in March, but why can't I do it in May or June? No, she could.

There's no doubt about it. I just don't think that she would do that. I think she would if it's outside the 90 days. I don't think it could go past the start of a June 1st start. Could be.

I think that's, we're talking out loud here because we are really in uncharted, uncharted territory. And then the question is, I want to hear from our audience on this. How does that impact how you would vote if there was a conviction? If you're for Donald Trump, but there was actually a conviction, does it change anything? Does it, because the polls say it does.

There's a 6 to 7% change. I'm not sure that's real. 1-800-684-3110 is our number. That's 800-684-3110. We've got some, we're having a little call screen or problem here. Are these calls live now, Will, because ours are not showing anything.

We have one call ready to go. Okay. No, I don't, I don't see it. Go to Lynn in the bottom. All right.

Hey, Lynn, welcome to Sekulow. You're on the air. Yes. Thank you for taking my call. If it were up to me to be a juror and make a decision on that, I would have to say that President Trump was still setting President in office on January 6th, because the incoming President had not yet taken his oath of office nor signed in as President in seat as chief, because if there were a state emergency, President Trump during that period, would still, thank you.

Thank you. I mean, technically, look, there was no question that when the President made the statements he made and took the actions he took, Andy, he was the President of the United States. Absolutely. The question is, and there's not been an adjudication of this, is were those official acts? And I would say elections go to the core of official acts in the sense of faithfully executing the laws, which is a mandate from the constitution to the chief executive President of the United States.

I think that's exactly right. The President was doing what the President can do and seeing that the laws be faithfully executed as he saw that being done and as he saw fit. But there's been no adjudication of that so far. No one has determined that these are official. Well, I mean, the DC circuit basically said they weren't and the immunity didn't apply, but the DC circuit said the immunity stopped applying, if at all, on December 20th at 1201, on January 20th, 1201.

That is wrong. And that would have been a question I would have put as one of the questions presented, but they didn't and they've got the reason for doing it, but we'll see. I think where it gets complicated by the US Supreme Court is trying to define what is and what is not an official, like we talked about. What is an official act? It's not just about the timing of when you were in office. Sure, most of those acts would likely qualify as official, but you still are a human being if you did something that was criminal outside of the official acts as President. What happens then? And then you're going to have to have the Supreme Court defining official versus unofficial.

Now, you're talking about the peripheral official. That is exactly the kind of case the Supreme Court doesn't want to have to do, that kind of balancing test. They want to stay out of that. But because of these prosecutions, it keeps landing at their doorstep on this.

And they don't love it, let me tell you. And I think ultimately American voters have got to have an answer, which is, could they be voting for someone that could be convicted of serious enough crimes that they could win the election potentially, which would be tougher to win, but be behind bars? Well, because if you're convicted, you could technically be sentenced to jail. Now, here's the thing. Under the procedure that's been outlined so far, remember, they're just asking for a stay and they want to go back to the DC Court of Appeals for en banc review.

That means all of the, I think it's 11 sitting justices. Whether they get it or not, we'll see. What was the jump here? Was that Jack Smith? No, it was, well, Jack Smith did it the first time. Jack Smith said, hey, go right to the Supreme Court. And the Supreme Court said, nope, let it go through the regular process.

It was expedited at the DC Circuit. But the DC Circuit, in this opinion, came out and said, we're going to send it back to the district court. So if you want to file a petition for en banc review, good luck, but it's going to trial, which was not the way. Or if you go to the Supreme Court, we'll stay everything until the Supreme Court disposes of it. The Supreme Court could grant review.

They could say, hey, no, wait a minute. It should go back now to if they want to do en banc review, let them go to the whole court. I know this is complicated.

I'm trying to break it down. But if you're the President, the goal is don't go to trial before the election, politically, right? Yeah, politically, again, because the conviction likelihood in a DC jury is so high of now criminal acts.

These are not, again, this is not civil courts, but the criminal acts. And then you get the whole idea of what happens. Again, it limits your ability on the campaign trail.

It kind of dogs you on the campaign trail. So you would likely want to go as far back as you can in restarting this case. And maybe that first step is then going back to the full en banc panel of the Court of Appeals and then back to a trial court to retry it once again.

That's the real issue here. So I want to say a huge thank you as Jordan did to our ACLJ champions. We're taking on the most vital fights of our nation, for our nation at the U.S. Supreme Court. Now you've got the immunity case. We've got a pro-life case going up there. So it's not only your right to vote, it's First Amendment rights.

The Biden administration was caught working with social media giants to suppress your First Amendment free speech rights. We just filed a brief at the Supreme Court on that on behalf of Charlie Kirk and Turning Point USA and others. But we can only continue this fight in these critical battles because of your support. Become an ACLJ champion. That means you're donating monthly to the ACLJ in any amount. Go to forward slash champions. That's forward slash champions.

Become a champion for life, liberty, and freedom. Welcome back to Secchio. I knew we would get calls on this because I think, again, we kind of flushed out leading up to the 14th Amendment case because of the case in Colorado, our involvement there representing the Colorado. That decision could come out as early as the end of this week or early next week. Yeah, so look for that because, again, that's very important also to the election process and the nominating process leading up to Super Tuesday. But this case is one where, again, the impact of it on the election cycle and the voters' psyche could be extremely important, which is whether or not President Trump will face these criminal charges, this time in Washington, D.C., federal charges, and what kind of immunity the President has. When does it end? Will the Supreme Court take it?

It is now on appeal to the Supreme Court. There's a reply time next Tuesday for Jack Smith. You think he can reply even quicker? And then we'll see then how this kind of folds out and moves forward.

Does it move forward quickly? What impact do you think this has if there's a conviction? Well, I want to go to Roy in Florida on line three because we asked that question, which is, like, if you knew that the trial had started and it will end before the President, like, the next President takes the oath of office, would you vote for a President who could potentially violate enough criminal laws, like it or not, agree with it or not, think this is a witch hunt or not, which many of us do, that they would be behind bars? And how would that impact your vote?

What happens if they do get through the primary, now they're in the general election behind bars? Ray from Florida, I want to ask your opinion on that, and thanks for joining us. Yeah, hey, man, this is Roy, and love you guys. Love Jay and you, bro.

You guys do such a great show. I'm actually a fellow musician, so I like that side of Jay as well. He probably knows a couple friends that I know, Mark Townsend and John Schlitt. You probably know those guys. I do know them. They're playing our band. Very good guys.

What can we help you with? What's your comment? Yeah, so I have a comment and a question. The comment is I would listen to Joe Rogan recently, who, you know, he left California, came to Texas. And you basically have this guy saying that even if Trump goes to jail, people are still going to vote for him. I mean, Joe almost sounds like he's going to vote for him himself.

But then you look at people like Michael Rapaport, who's a famous actor. He's a flaming liberal, who is way left. And he's like, dude, I'm sorry, Trump is on the table. We got to get our stuff together. So my question is what would it look like, Jay, or what would it look like if he was convicted and people still voted for Trump?

What does that look like? Unprecedented in U.S. history. Trump is kind of an unprecedented U.S. history President. Look, even if convicted, there's no guarantee that they would sentence him to jail because you have all kinds of Secret Service issues. He'd have appeal rights and he should be a bond pending appeal. What the government, as Andy said, the government's got to be, they've got to stay away from an election interference claim by their litigation.

That's right. They may never select the timing of a criminal charge for purposes of affecting any election or for the purpose of giving an advantage or disadvantage to any candidate or political party. And that's been interpreted as no criminal actions within 90 days of a election. But Jordan, it becomes a political question. It does become obviously a political question.

All of these do. I mean, in the 14th Amendment issue, the immunity issue, you're facing criminal charges. What's the penalty for those criminal charges and the crimes? Again, it's tough to predict the voter mindset, not so much people who've already made up their mind about who they're going to vote for, but certainly it's that key demographic group that you've got to swing in these very close states to win the election. It doesn't make it any easier for you to do that if you're facing a barrage of criminal charges. I think the idea of the deep state coming after Donald Trump did help Donald Trump. You know, when they raided Mar-a-Lago, his poll started, that was really the second coming of Donald Trump. I mean, his numbers started just going through the roof, but the reality now of these trials becoming real, real criminal charges. And I think that's where we've got to figure out this immunity issue, that we have got to get an answer on that before many moderate voters or even kind of independent voters that lead right feel comfortable giving their vote away to someone who they feel like might be an ineffective President or someone who would have to even withdraw. So, you know, Cece, we were going to get into another issue, but obviously we're sticking on this. But if you look at the immunity issue and you look at the ballot access issue coming out of Colorado, we are in unprecedented times in a Presidential election. We've never seen anything like this.

Yeah. And this immunity, you know, issue is very interesting because what the court below basically said is the immunity doesn't stay with you. It doesn't travel with you.

And you've probably discussed this earlier, but it's the fact that is just shocking to me. Of course, a President's immunity for official acts he did while he was in office is going to travel with him. It should.

Even once he's out of office, you have to have that protection. You know, it's interesting though, they did not, I would have led with that. And my question, that would have been my first question presented. They didn't do that here. They went right to absolute immunity, which may be a strategy of trying to eliminate the case altogether where I would have said, hey, do it in a two-step and delay the time, but.

Right. And I think like the court acknowledged in the 14th Amendment case that, you know, hey, if we let one state decide this, it's chaos. I think it's the same kind of deliberation here is that if you don't, if you don't let that immunity travel with the President, that's going to be chaos. And we've said it before, Obama actions that he took, people can come after him criminally.

Actions that Biden has taken once he's out of office, people can come out after him criminally. That is going to be chaotic. Let's take it. Do we have time for another call? Yeah. Let's take another call. We're going to take your calls at 800-684-3110 if you're watching, a ton of you are on social media, share it with your friends, more people involved in the conversation.

Yeah. Let's go to Todd in Georgia on Line 1. Hey, Todd. Hi, Todd.

Hey, yes. Will the Supreme Court consider the DC appeals court, their prejudicial statement, declaring Trump guilty of insurrection? I mean, how's he supposed to get a fair trial? I think the Supreme Court's going to do everything it can and in the first of all, in the 14th Amendment case to never utter the word insurrection in their opinion, because there are legal ways that they don't have to do that.

If in fact, he was never charged with an insurrection by the way, and Jack Smith's case, that's the subject of this immunity case, the President was not charged with insurrection. So the court should not get into the insurrection issue. I expect a decision in the 14th Amendment ballot access case to be unanimous or close to it. Don't be shocked if it's written by somebody like Justice Kagan or Justice Jackson, and it's 9-0 on the issue of officer, which is the issue we've led with.

Now, the Trump's lawyers pulled back on that some at the argument and even in their briefing, but I think that's the court's going to look for an exit ramp on that one. Yeah. I'm even thinking, and I thought the other night, it may be a per curiam opinion. Could be.

In other words, no justice signs that they all agree to it and it just comes out through the court per curiam with no justice's name on it. Could be. Could happen.

Could happen. Yeah. I mean, I think ultimately here, this goes to comfort of voters. I'm not talking about people who are kind of made up their mind.

You always vote Republican or you always vote Democrat. It's in general election voters. Does this scare them away? I mean, kind of like where Joe Biden last week with all the news about his inability to know what was going on. Does that scare? I mean, you've got these two candidates with both very different issues surrounding them, but both kind of off-putting to voters who are like, is my vote going to count?

Is this person actually even going to be President? All right. Support the work of the ACLJ at Contribute monthly, become an ACLJ champion. You keep us in all these fights.

Become a champion for life, liberty, and freedom at forward slash champions. Now, there are a lot of you holding. Stay on the line. We're going to get to more calls when we come back in the second half hour of this broadcast. If you're watching on our social media, share it with your friends. Very important that you do that. We're going to be back with more in just a moment.

But again, support the work of the ACLJ at forward slash champions. Keeping you informed and engaged. Now more than ever, this is Sekulow.

And now your host, Jordan Sekulow. So yesterday, President Trump's legal team that filed their application for a stay submitted to the Chief Justice of the US Supreme Court. This is involving a Presidential immunity case out of the DC Court of Appeals brought by special counsel, Jack Smith.

Jack Smith has until a week from today, so it's the 20th, to reply. This is while this is pending. Again, the stay is in effect, so there's not going to be a court proceeding moving. But as we've walked you through that, I mean, the multitude of options available to the US Supreme Court once they receive this reply. They could send it down back to the Court of Appeals. They can actually send it down and say, this needs to be tried. Then you've got to figure out, out of that trial, which acts were official, which weren't, or were any, and then which ones you could actually file criminal charges. If the Supreme Court denies review in the immunity, remember, they took the 14th Amendment case.

We've already argued it. Briefs have been submitted. We'll get a decision on that shortly on the ballot access.

I'm confident that we're going to see a victory there. On this one, which is the scope of Presidential immunity, they could grant this application for a stay, send it back to the DC Circuit. They could deny the application for a stay, at which point it goes back to the trial judge. They could convert the application to a stay in a cert petition and expedite it. They could grant the stay and say, you know, here's a briefing schedule. I mean, there's a lot of things that can happen in a case like this, Cece, and we're really in unchartered territory. And you're talking to people that practice in the Supreme Court every year. Yeah. And depending on which scenario plays out, then we'll see, is this going to affect the election?

Is it not? Is it going to go back where they're actually going to start the trial and he'll have to be, you know, defending himself while he's running for President? Or will it be a scenario where the Supreme Court either rules on it or drags it out where it will not affect the election?

No, I think that's right. And Andy, there's no way to predict. I mean, we're giving you our best guess, but there's no way to predict. No, there's no way to predict.

There isn't. I mean, Judge Chutkin can, if she gets it back, she can put it on a trial calendar if she wants. She can delay it and say, I'm not going to try it right now. It's up to her.

Looks like the Georgia case is definitely not going to trial before the election, if at all. I don't know if that case has got any vitality left to it at all. Yeah. Okay. I think mine might be frozen again, Will.

What is the next call up that we could take? Yeah, mine is frozen. Hey, Whitney, welcome to secular. You're on the air.

Thanks so much. I don't think this is the last time we hear about immunity despite the outcome. And that's because I think that the immunity issue goes so far beyond Trump and it's a very calculated step towards globalism because, you know, very much to your point that you've made in the past, if this goes through, who wants to be President?

And the answer is no one. So like you were warning us, Jay, when they started putting the lawyers in trial in Georgia, you're like, this is the stuff that ends democracies, right? First kill all the lawyers, now kill the President. So we'll let the who oversee our healthcare, right?

We'll let the UN manage the country because no one wants to be President. I think that's where this is headed. This is the grand danger.

And Whitney, appreciate your call. This is the grand danger in all of this. When Jack Smith tried to skip over the court of appeals to go directly to the Supreme Court, that was, as I said at the Senate floor, danger, danger, danger. You are going outside the normal judicial review process, which always sets up a dangerous situation, I think, on steroids when it comes to a Presidential election.

And while Andy is right, it's a 90-day rule. The fact is you really have the two principal nominees for President right now. We're in the election. This is, almost anything they do looks like election interference, unless they just say, we're stopping everything, let the election take place, and then deal with it, which is what they should do in a situation like this. Well, that would be the ideal thing to do because- Because it's looking pretty messy. Yeah, it is. But I don't know that that's going to happen either, Jay, quite frankly. But it does set up a situation, we've only got 30 seconds here, where it looks like you're, whatever they do, it looks like election interference. Yeah, absolutely.

Election interference. You know, folks, again, we're going to take more of your phone calls at 1-800-684-31. Tim, we encourage you to stand with us. As an ACLJ, a champion, it is so important for us to rely on those champions who we know have chosen to automatically donate an amount they're comfortable with each month to the ACLJ. Go to slash champions, be on the tip of the spear with us at the ACLJ today, slash champions.

We're taking your calls at 800-684-3110, 1-800-684-3110. We're talking about this immunity case that's now pending at the Supreme Court. The DC Circuit said no immunity. They said immunity stopped the moment the President left office. The problem with that, of course, it sets every President up for unbelievable legal challenges, which President Trump is facing an unprecedented way. I am taking the position now that with all of these cases, I think what the Supreme Court should do is grant review in the normal course and that would put all these trials on hold, get through the election. Andy, I know it's a 90-day rule and we're outside the 90-day rule, but the truth is we're already in a general election mode. And if we could do that, I think it calms everything down and you have an election on the merits, Harry, rather than having an election on, you know, by fire during litigation. Oh, I think that is correct. But I also think in partial support of your statement, it's important to keep in mind that the President is immune from prosecution for acts that are committed in the furtherance of his presidency. So he's empowered to act in a discretionary manner and we don't wish to hamstring future Presidents with respect to a limited decision that is coming from the Court of Appeals.

So I think you're right. Slow it down. Slow it down. Let the Supreme Court take some time, consider this particular case, have a full factual record, and then decide. What they really should do is send it back down to the Court of Appeals and let them petition for a rehearing en banc.

If that's denied, then go for a cert petition and a stay at the Supreme Court like you would in any other case. Rushing these, I don't think, helps anybody in this situation. It doesn't help Jack Smith. It doesn't help the body politic. But let's go ahead and take Matt's call out of it.

Right. Well, I think it does help Jack Smith because he thinks it's the only way of bringing the charges, I think. I mean, I think that he's worried that if he can't bring these charges now, I hope he's going to win and that's going to be it. Either Trump wins and he's President of the United States, he can't bring them, or he loses and it kind of takes away from the entire of the bringing the charges. Does the country really want to spend millions and millions of dollars on a former President like that on charges? No.

Or they want to move on as a country. Right. We'll go back to the phones. 1-800-684-31. Tim, we'll go to Jim in South Carolina on line three. Hey, Jim. Hello.

I'm curious. I mean, the press is premature, but spending the immunity aside for a second, much of what President Trump is charged with stems from his speech. And I'm curious how we even get that far given Brandenburg v. Ohio. Well, Brandenburg versus Ohio sets a very high standard that says unless there's imminent lawless conduct, it's protected by the First Amendment. Now the other side says, well, look, there was imminent lawless conduct. Those people then went up to Capitol Hill. But the President didn't say go storm the Capitol. So I think that was a very cramped reading of all of this.

And this is the reason why it's very dangerous doing these partial appeals and handling these cases in a piecemeal way. Yeah. Let's go to Matt in Ohio on line four. Matt, thanks for joining us. Share on the air. Hi, guys. Great show.

Thanks. The reason I'm a lawyer and what's puzzled me, I haven't read any of the pleadings in these cases. But under Title 42 U.S.C. 1985, section three to know if two or more people conspired to perform prevent by force intimidation threat. Any citizen is lawfully entitled to vote from giving us support or advocacy in any legal matter towards or in favor of the election of any member of Congress, President, vice President. They're violating the law.

Now, under Ohio law, intimidation and extortion includes threatening to criminally prosecute people for something that is not illegal. Listen, Matt, I don't disagree with you. In fact, I argued a 42 U.S.C. 1985-3 case at the Supreme Court of the United States.

I represent the private parties. It was a pro-life case, but it was the same exact law. And by the way, my co-counsel was the deputy solicitor general of the United States, John Roberts, who's now the chief justice of the United States.

In fact, we've got a short let me play a short clip from that argument. The Fourth Circuit holding rests on two faulty legal premises. First, that opposition to abortion constitutes invidious discrimination against women and that petitioner's activities violate the respondent's constitutional right to interstate travel. The interpretation of the lower courts goes a long way in making 1985-3 the general federal court law that this court has long counseled against. There is redress available, and that is in the circuit courts of Virginia for trespass, for public nuisance. And 12 state court of appeals have reviewed injunctions involving these type of activities. So that's the graven of a 42 U.S.C. 1985-3 complaint. Now, you would be arguing here that by bringing these cases against the President, you are conspiring to interfere with people's right to vote by tampering what they're going to say.

I don't know if that would carry the day map, but I will tell you this. That's what counsels, in my view, see the idea of take these cases in the normal scope, don't change procedures for this case, follow through with the procedures for appellate review, Supreme Court review, to handle it that way rather than any of this jumping around. Yeah, I think that the election needs to go forward peacefully and unencumbered by these tons of legal cases that have been filed. And what Matt is saying, Andy and Harry, is that 1985-3 prohibits interference with the right to vote by intimidation, and these charges against Trump appear to be intimidating. Intimidating voters, and Jordan's asking the question, you know, how do the voters respond to this? And we're not going to really know that answer until if there is a conviction. But this is why the Department of Justice is always counseled, don't do this.

That's right. In 2008, the Attorney General put out a memorandum, which is still the rules today, about do not time your investigations to affect an election. So it's normally a 90-day rule, but we're in a general election now. Is it fair to say that even now it's tainting the election?

Yes, it is. Don't you think, Jordan? Oh, absolutely it's tainting the election. I mean, President Trump is outside and inside courts all over the country all the time. He's already had to go all the way to the U.S. Supreme Court once in Colorado because they tried to kick him off the ballot in 14 or 15 states, which there's a dozen more that would like to.

He's got it in Georgia. I mean, we wouldn't know about Fannie Willis and all these different issues she's facing if it wasn't for President Trump and the number of people she tried to indict there with her now boyfriend, I guess, in that investigation going on. I mean, and then the Jack Smith dueling investigations, both in, you know, Washington, D.C., and don't forget the classified documents.

Yeah, and Harry, the raid. I mean, this all started with a raid on Mar-a-Lago. I mean, it's definitely impacting the election. I mean, so if the idea is that you have a Department of Justice policy that says don't impact an election, but this is, these cases themselves right now are doing that. Absolutely. Just their existence. And furthermore, I think it's very, very important if we go back to Brandenburg versus Ohio, that the First Amendment limits the capacity of the government, that is the federal government and the state government, to punish so-called inflammatory speech unless the words are directed to inciting or producing imminent lawless action.

And there is no evidence on the record which would support that observation, number one. And then number two, you could argue that Jack Smith is attempting to constrain the President of free speech rights within the meaning of the Constitution. We certainly raise that within the context of the Colorado petition that we took up. We're taking your calls at 800-684-3110. Let me go to Joy in Missouri. Joy, welcome to the broadcast. You're on the air.

Hi, thank you. My question is, what good does it do a President to have immunity just while he's President? How can that help if the minute you quit, they're going to take you to court for something you didn't even like? Presidents will have to have law firms on retainer while they do anyways, the other four years of presidency, and then you better have a battery of them when you're done. That's what I would have challenged, by the way.

I would have gone up there and said, question number one presented, does immunity expire at the time when the President leaves office and is no longer holding the office of the presidency? And the answer to that has to be no. Then the question is, were the acts taken by the President within his official acts or the periphery of official acts? And I think when it comes to elections issues, the answer to that's going to be yes, those are official acts.

He has the authority to make sure laws are faithfully executed. So, Jordan, there's just a lot of complications in all of this to be jumping through these kinds of policy moves. It is, and I think that most Americans would understand why you don't want a President, a Republican or Democrat, to have no immunity whatsoever the moment they step off, you know, 1201, the day the next President is sworn in, because you're going to have people, and it's never going to be able to find, you're never going to be able to have a clear line test on what's an official act and what's not.

There are some things you could say that's official always, that would never be official, but there's a whole lot in the gray area because there's a whole lot we don't know about decisions that Presidents have to make on purpose. So, courts having to get involved in that, you know they don't want to. Well, there's even law about them not getting involved in that, second guessing a President's decision-making process on official acts.

What if they feel like a President is about to be unconstitutionally prosecuted because their rights of having this immunity so that they can have these frank discussions with their advisors. I think that is where the courts have the proper role to step in. And listen, Jack Smith was so concerned about this, he brought this case first on his own to figure out to make sure his cases didn't get thrown out. Become a champion of the ACLJ. We need those of you who can choose an amount you're comfortable with each month making that automatic donation to the American Center for Law and Justice at slash champions.

And again, be the tip of the spirit. Join us, We'll be right back taking your calls and questions. All right, welcome back to secular as I thought we would a lot of calls and that's good because these are complicated issues the President and his team are facing while on the campaign trail. You've got to balance this along with all the elections and with of course primaries coming up South Carolina and then of course Super Tuesday, the Supreme Court case last week. And now back at the Supreme Court this week, which we could learn a lot by the end of the week, what happened on the 14th of the minute. The Supreme Court could also say, we're not going to hear it now. We want it to go back to trial. We want it to go to trial. We want to see what the facts that are proved are, then make a determination as to whether those were official acts or not, then go to the court of appeals, then go to the Supreme Court of the United States. The only thing there is that at that point you would have had an adjudication of guilt and that goes to Annie's point of, is that interfering with an election?

Are we close enough where it's interfering? And technically it's got to be 90 days out. So that would be pretty close August.

Yeah, be really close by the time you try it. Especially because the 90 day out rule, does that start when people could early vote now? Because you could add that almost like the 120 day rule. True. In many states. I think, you know, it just starts getting too fishy for a true democratic republic. I think it already is.

I think they'd be better off putting staves on everything. Go have an election, see who wins, and then adjudicate it out. If Trump wins, obviously these cases go away. Yeah. Let's go to the phones. We'll go to Mary Ellen on line six, but hold on. Hey, Mary Ellen.

Hello. And I agree with everything and even that lady that talked about the goal of what's going on here. However, what I find amazing is, and as I'm sitting here thinking about all this, I separate theory from facts. I called the immunity thing the theory and the facts. President Trump, nor any of those other hundreds who were convicted and tried and so on, were tried and convicted on insurrection.

And it's like, how can we start talking about immunity about that when he never was even convicted? Okay. That's conflate.

Don't conflate, which I know it's hard, Mary Ellen. The insurrection issue goes to the 14th amendment access to the ballot case. It's already been submitted to the Supreme Court.

All of our briefs are in. The case has been argued. We're waiting for an opinion. The case that Jack Smith has brought is not one on insurrection. It's interfering with an act of Congress and charges related to that, which by the way, that charge is up on review by the Supreme Court of the United States now as well. And they've already granted certiorari in that, which is another reason why this case should not be proceeding. You've got one of the main charges against the President where Judge Katz's in the lower court, the DC Court of Appeals said, you know what? It's being interpreted too broadly and interferes with the first amendment. That's one of the four charges. And it's the main charge against Trump. Let all of this play out legally before you have a trial of a President during an election.

Yeah. It's very confusing. Like you said, even for us who practice here, there are just so many issues, so many cases going on.

They need to all be put on a stay so that we can actually have an election and not be having all these cases interfere with people's right to vote. All right, let's go back to the phones. Daniel in North Dakota on line one. Hey, Daniel.

Hey, thanks for my call. My question is, is the 90-day rule, does that not include the primaries? Because we all have to go to the primaries in every state. And also, in the second impeachment, didn't that cover the insurrection that Trump went on to? Yeah, I'll answer the second impeachment when Andy can answer the 90-day rule. The insurrection, he was acquitted on, but that is not race judicata or I don't think double jeopardy because it's not a judicial proceeding. It's a political proceeding and those are different. Yeah. And so the US attorney manual and the ruling of the attorney general that came out in 2008 says never institute criminal charges for affecting any election or giving one advantage or disadvantage to any candidate or political party.

And that would include the primaries, I would think. Yeah, I agree. I agree. So you're really, you're in the midst of it. You're in the midst of the season.

I think we're in danger territory here, Harry. Which also means that the Supreme Court could punt. There's a lot of potential punts. Oh yeah, they could punt on this. I mean, I wouldn't be shocked if they do.

I won't be shocked if they say, nope, go try it. Or don't try it if you're too late. Well, I think we should adopt the anti-economy rule. That we're already in it. Yeah.

I tend to think that too. We're already in the election. I mean, so this, I think everything should stop. Just go have a three and a half year election. You wait almost four years and now you're doing it and it happens to coincide with an election and it happens to be the two that are running binds just departments going after the former President who happens to be the leader of the Republican party right now for the, and as Andy said in the memo, it says elections.

It doesn't say general election only. Let's send another call. This is actually a question from Deb in New Jersey online too, because it's what's going to be in the voters' minds if there was a conviction of one of these serious journalists. Hey Deb.

Yes, hi. So yeah, I have to agree with you 100% that this is definitely intimidation of the voters. I don't know how they get away with this because he's the only one we know that is really, truly able to fight this American style Marxism we see going on here today. And I'm, I'm a little concerned, but I think if people knew if we could actually get behind him and say he can get the job done, even if he were behind bars for however long that was, then we would still go for him. I really believe that because I don't see any other candidate who seems to be up to the job for doing that.

And then my first question is, I know we've never been here before, but could he do that possibly? And the second question is all these people coming across the board are getting free drivers licenses. Can they now vote? No, you have to, I mean, technically they should not be able to vote. You have to be a citizen and registered to vote. Is there voter fraud with people who try to register and then, you know, show up on the same day and say, Oh, you're not there.

Well, you can do it. You can do a provisional ballot. Maybe that'll count.

Maybe that won't count. It's kind of the system that we trust the system to work. I mean, it's always dangerous when you have an influx of people that have IDs, but say, you know, I thought I was supposed to vote here. And, and so I can at least vote provisionally.

Those are supposed to get tossed out. Second, that first question, can you govern from behind bars? I mean, the answer is technically yes.

There's no bar to being present. If you are in prison, I don't see a President actually serve or former President serving what we think of as a classic prison term. And if they win election, I mean, Dan, what do you see about it? I mean, if they win election, I think that would interfere with the President's Harry article two responsibilities. I think that is correct.

But I also think there are plenty of Trump haters out there who would try to misinterpret the rules in order to invalidate his presidency. Oh, I agree. Daniel, last call. You're on the air from New Mexico.

Hey, thank you for the work you do. My question is, is it possible, whatever the opinion is from the court, that the secretaries of state will not abide by it? No. If the Supreme Court makes a decision, Marbury versus Madison is the law of the land. That will be the end, which is one reason I think they may punt on this. All those court decisions left that in there. Even the courts of Colorado said subject to Supreme Court review.

Right. So they weren't even trying to say like, we don't care what the Supreme Court says. They say, yeah, we know this is new. So if the Supreme Court changes what we thought, we're going to abide by the Supreme Court. So I haven't seen anywhere where a state who's trying to kick him off the ballot has said, and we're going to ignore the federal highest court in the land.

But wow. I mean, as an hour of broadcast, you see how from just last week on the 14th amendment, this week to Presidential immunity. And what we try to do on this show is so that when you're talking to folks, because this will start getting more and more attention throughout this week. And certainly when the Supreme Court makes a decision, you know what you're talking about. So you can talk about it with your friends and family, and that you are up to speed on these issues and all the different potential scenarios. And with this case, there's probably more potential scenarios than there are with the last case with the Board to the Amendment case.

I think of the two, definitely more difficult. Go to
Whisper: medium.en / 2024-02-13 14:09:20 / 2024-02-13 14:30:46 / 21

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