In This Episode
- A federal appeals court on Tuesday rejected Donald Trump’s immunity claim and ruled that he can be put on trial over his efforts to overturn the 2020 election. A three-judge panel issued the unanimous decision, writing, “for the purpose of this criminal case, former President Trump has become citizen Trump.” We’re joined by Leah Litman, co-host of Crooked’s legal podcast Strict Scrutiny and a professor of law at the University of Michigan Law School, to learn more about the case and what comes next.
- And in headlines: the House rejected impeachment charges against Secretary of Homeland Security Alejandro Mayorkas, a Michigan jury voted to convict Jennifer Crumbley of involuntary manslaughter, and New Hampshire officials said they found the source behind the fake Biden robocalls.
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Priyanka Aribindi: It’s Wednesday, February 7th. I’m Priyanka Aribindi.
Juanita Tolliver: And I’m Juanita Tolliver. And this is What a Day. The podcast that wants to know why Tucker Carlson is planning on interviewing Vladimir Putin.
Priyanka Aribindi: And on X no less. Really just the worst collab of all time. [disgusted sound] Won’t catch me touching this with a ten foot pole.
Juanita Tolliver: If X is broadcasting this, are they covering personal security for Carlson as he’s interacting with a notorious dictator?
Priyanka Aribindi: I have no comment publicly on that. [laughter] [music break] On today’s show, the House rejected impeachment charges against Secretary of Homeland Security Alejandro Mayorkas. Plus, the Senate’s border deal seems to be heading for failure.
Juanita Tolliver: But first, a federal appeals court yesterday rejected Donald Trump’s immunity claim and ruled that he can be put on trial for charges over his efforts to overturn the 2020 election. That means he does not have immunity in the January 6th case. A three judge panel issued the unanimous decision, writing, quote, “for the purpose of this criminal case, former President Trump 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.”
Priyanka Aribindi: Everyone was hoping. This was obviously the right choice.
Juanita Tolliver: Right.
Priyanka Aribindi: The right decision.
Juanita Tolliver: Yeah.
Priyanka Aribindi: Those are hard to come by in these troubling times. So listen.
Juanita Tolliver: Not wrong.
Priyanka Aribindi: When one happens.
Juanita Tolliver: You’re not wrong.
Priyanka Aribindi: It’s very exciting. [laughter] You all may remember that Trump’s lawyer argued that former presidents cannot be prosecuted unless they are impeached first. Here is a back and forth from the hearing between Judge Florence Pan and Trump’s Attorney, D. John Sauer.
[clip of Judge Florence Pan] Can a president order Seal Team Six to assassinate a political rival? That’s an official act in order to seal Team Six?
[clip of Attorney D. John Sauer] He would have to be and would speedily be impeached and convicted before the criminal prosecution.
[clip of Judge Florence Pan] But if he weren’t, but if he weren’t, there would be no criminal prosecution, no criminal liability for that?
Priyanka Aribindi: You can definitely hear Judge Pan’s skepticism there. And they clearly didn’t buy Trump’s full immunity argument, because here we are. To learn more about this case and where we go next from here we spoke with Leah Litman. She is a co-host of Crooked’s legal podcast Strict Scrutiny and a professor of law at University of Michigan Law School. Leah, thank you so much for joining us.
Leah Litman: Thank you for having me.
Juanita Tolliver: So we’ve been waiting on this decision from the D.C. Circuit Court of Appeals for a few weeks now. Talk us through the significance of this decision.
Leah Litman: So it took them a while because they wrote a long, exhaustive opinion. You know, this is 57 pages. They really go through all of the legal arguments, including all of the very dumb ones. And so as to what happens next, the D.C. circuit wrote its opinion to try to speed things along as best they could. So what they did is they said the mandate from our opinion, from our court is going to issue on Monday. What that means is once the mandate issues, then jurisdiction kind of returns to the D.C. District Court and the D.C. District Court could then, you know, kick up all of its pretrial proceedings and potentially even hold a trial. But the mandate won’t issue if by Monday, Trump files an application with the Supreme Court to stay the mandate. And they said, you know, our mandate won’t issue if he files before Monday unless and until the Supreme Court disposes of that stay application, you know, to basically put our mandate on hold. So they’re trying to speed things along. And part of what they did is close off another avenue for Donald Trump to potentially delay, because they said this mandate isn’t going to be paused. If Trump asked for what’s called rehearing en banc, where they would ask the entire D.C. circuit to potentially revisit this panel’s opinion. So it will kind of be up to the U.S. Supreme Court to decide how quickly to dispose of this stay application, whether to take the case. If they do take the case, you know, that would pause anything that happened in the district court. So the ball will likely be in the Supreme Court’s court.
Juanita Tolliver: But I do appreciate this notion of the appeals court saying move it along. Thanks so much. [laugh] Right. Like that’s a vibe. Now–
Leah Litman: Thank you, next. [laughter]
Priyanka Aribindi: Truly.
Juanita Tolliver: The opinion does seem limited to Trump, as though in other future potential criminal cases, a sitting president might have some kind of immunity like is that an accurate read? And what was the court’s intention with that kind of caveat?
Leah Litman: I think that they were trying to note how extraordinary President Trump’s arguments were. This is not someone who is currently holding the office of the presidency saying, I cannot be prosecuted while I am in office for doing the things I do in office. This is someone who, as they note, is now a private citizen and who is basically arguing I am immune for all eternity simply because I was once president. And so I think they were trying to underscore how extreme and really out there these arguments were in noting that they weren’t dealing with a case of someone who is currently president arguing that they are immune.
Juanita Tolliver: Yeah. You’re only Citizen Trump. That’s it.
Leah Litman: Exactly. [laugh].
Priyanka Aribindi: So this decision was related specifically to Trump’s DC election subversion case. But, you know, he also has a number of other cases underway at the moment. Does this apply to any of those other federal criminal cases as well?
Leah Litman: Yeah. So the logic of the court’s arguments and their reasoning certainly would cover those cases as well, because the court rejected the idea that presidents can never be held to answer in federal court. And to the extent that that is Trump’s immunity argument in other cases, you know the court’s reasoning would apply there as well. Some of the arguments President Trump made were limited to this case and that he argued he couldn’t be, you know, tried in court for actions arising out of January 6th because the Senate had already decided not to convict him for the same conduct. And that argument isn’t available when we’re talking about, like the Florida documents case, which involves mishandling of information and wasn’t available, for example, for actions he took before he became president. You know, like the alleged violations of the New York election law. And then other parts of their analysis turned on specifics to this case.
Juanita Tolliver: And the calendar is tied, especially as Judge Tanya Chutkan who’s overseeing the federal election subversion case already canceled the March 4th trial date, but is there any realistic chance that Trump could be criminally convicted in the DC case before the November election? And what happens next in this case, given this decision from the appeals court?
Leah Litman: It’s a realistic possibility. But whether it happens, I think, greatly depends on what the U.S. Supreme Court does. Because if the U.S. Supreme Court takes the case and then they don’t issue a decision until the end of June, that’s a very, very tight timeline to hold an entire trial, finish the pretrial proceedings, and then conduct a trial. So if the U.S. Supreme Court quickly takes the case and issues a decision, let’s say in March, then I think it could very well be possible. But it’s going to depend on what the U.S. Supreme Court does and when.
Priyanka Aribindi: I want to go back to a little bit of what we kept hearing from Trump throughout, you know, he was publicly arguing that presidents need to have immunity to make decisions, or else they’ll be prosecuted by political opponents after they lose elections. Here is a clip of him at a campaign rally in New Hampshire.
[clip of Donald Trump] This isn’t just me. This is all presidents. They have to be given immunity. Otherwise they’re going to be unable to act. Anything they do, if it goes wrong, even if it goes right. The opposing party and you see that now where you have these people, they’re crazy. They’re absolutely. The opposing party will indict them for anything they do.
Priyanka Aribindi: I mean, he went on to argue that, for example, Harry Truman couldn’t have used nuclear weapons if he was concerned about being prosecuted by the next guy. I mean, skipping over the nuclear weapons part. What point was Trump’s legal team trying to make with these examples about presidents needing immunity? And what do you think the Supreme Court might make of that?
Leah Litman: So I think it is an attempt to frame this case in terms of general principles and the interests of the office and the political system, rather than just being about Trump himself. Right. Because like to the extent that they just say this guy really doesn’t want to be accountable, right, that’s not going to win them any votes and that’s not going to appeal to really many people. That being said, I think that there is an element that we should take seriously in what the Trump legal team and the Trump circle are saying, because of course, we have seen threats of possibly impeaching Joe Biden for, I don’t know what, like being a Democrat who won an election. Or threats to impeach maybe Secretary Mayorkas because like, they want to raise a political issue about the border because they think that will benefit them politically. And President Trump saying, well, on day one, I’m going to be a dictator and allow myself to just like do a little autocracy when I get into office.
Juanita Tolliver: Just a sprinkle. [laughing]
Leah Litman: Exactly. Just like maybe just 24 hours. Unclear if he would stop there, but I do think they are telegraphing the fact that they are willing to do this. And so that is an element of this that I think we should take seriously.
Priyanka Aribindi: Right.
Leah Litman: I don’t know the extent to which that will affect the court’s analysis or how they might weigh the legal arguments, but it is, I think, important that they are saying this and they keep saying it.
Juanita Tolliver: And with regard to the Supreme Court, there are other ways in which that court is set to have a major outsized impact on Trump’s candidacy and the 2024 race, right, including in the case over the so-called insurrection clause of the 14th Amendment, in which Colorado has already booted Trump off the ballot. Can you talk us through what we should be waiting to see next in that case?
Leah Litman: So the Supreme Court is going to hear oral arguments on whether section three disqualifies President Trump on Thursday. And at least during the arguments, I am personally going to be watching the Democratic appointed justices closely, because I think this is a case where the chief justice in particular, is going to want to have an opinion that is not just Republican justices putting Trump on the ballot. And so listening to see which of any of the arguments they appear receptive to could provide us some clues about what direction the court is going to go. And then I also think, like, one thing that is just going to be interesting about the argument is the kinds of arguments the justices seem to be open to. I think most people, and I am one of them, think the court is going to put Trump on the ballot. But all of the arguments Trump has made for getting back on the ballot are not great. Are they going to try to come up with some new ones, like which turd are they going to swallow in order to do this? I don’t know, but that’s kind of what I am looking for.
Priyanka Aribindi: Leah, thank you so much for joining us. Always such a pleasure to have you on.
Leah Litman: Thank you for having me.
Juanita Tolliver: That was our conversation with Leah Litman, co-host of our Strict Scrutiny podcast. You can learn more about the decision on their new episode, which is out now only on the Strict Scrutiny feed. That’s the latest for now. We’ll be back after some ads. [music break]
Juanita Tolliver: Let’s get to some headlines.
Juanita Tolliver: In a dramatic and embarrassing defeat for congressional Republicans, the House rejected impeachment charges yesterday against Secretary of Homeland Security Alejandro Mayorkas. A lot of experts have called this proceeding an inappropriate and unjustified use of the impeachment process by the GOP. And in the end, a handful of Republicans broke with their own leadership to send the whole thing down in flames with a vote of 216 to 214 on Tuesday evening. A lot of conservative members are expected to be pretty mad about this, because they’ve been promising to impeach Mayorkas for allegedly failing to lock down the border ever since they took the majority. But in the end, this impeachment turned out to be all foam, no beer. And to add on another layer of drama to this dumpster fire. Representative Al Green casted the deciding vote after being escorted to the floor in a wheelchair, in hospital scrubs and barefoot. Like this man literally reportedly came out of surgery. And what’s crazy is that after casting that vote, Marjorie Taylor Greene is on the steps of the Capitol, literally told reporters that she thought Democrats were hiding him. Like this man came from a hospital to stop this ridiculous vote. And you think it’s a game? Wow. Okay, okay.
Priyanka Aribindi: [sigh] Says everything you need to know about Marjorie. The Senate’s border deal seems to be heading for failure, as a growing number of Republicans say that they will vote against the legislation. It’s wild because this bill was specifically crafted to meet GOP demands that Democrats link border policy changes to the international aid packages for Israel and Ukraine. But now there’s a growing number of Republicans who say that they are going to block the procedural vote set for today. Here is Senator Mitch McConnell talking with reporters yesterday about the bill.
[clip of Senator Mitch McConnell] They made pretty clear to us by the speaker that it will not become law.
Priyanka Aribindi: It is a big loss for the negotiators who have been working for months on this agreement. Things began falling apart when former President Donald Trump publicly trashed the bill and after a closed door meeting on Monday night where Republicans debated the deal. President Biden is blaming his soon to be election opponent for throwing away the chances of passing this border bill. Take a listen.
[clip of President Joe Biden] This bill won’t even move forward to the Senate floor. Why? A simple reason, Donald Trump. Because Donald Trump thinks it’s bad for him politically.
Juanita Tolliver: I mean, no lies detected so–
Priyanka Aribindi: Seriously. And the chaos on Capitol Hill just keeps going. The House also rejected a standalone bill to send billions of dollars of aid to Israel yesterday, as well. If you’re asking yourself, what are they getting done over there, exactly? [laughter] That’s a great question.
Juanita Tolliver: Nothing.
Priyanka Aribindi: Maybe one to consider.
Juanita Tolliver: Nothing.
Priyanka Aribindi: As you head to the polls.
Juanita Tolliver: No, seriously, that is the call to action language verbatim.
Priyanka Aribindi: Yeah. [laughter]
Juanita Tolliver: A Michigan jury unanimously voted to convict Jennifer Crumbley of involuntary manslaughter yesterday for failing to stop her son from carrying out a mass shooting. You may remember that Crumbley’s 15 year old son opened fire at Oxford High School in 2021, killing four of his classmates. The boy pleaded guilty to several charges, including murder and terrorism, before he was sentenced to life in prison. But many were quick to criticize his parents, who gifted him the handgun he used to carry out the shooting. Prosecutors charged Jennifer Crumbley with four counts of involuntary manslaughter, one per victim. And they argued that Crumbley bore responsibility for her son’s massacre, in part because she and her husband didn’t properly store the gun in a safe place. Prosecutors also argued Ms. Crumbley should have been more aware of her son’s mental health. NBC news says yesterday’s verdict makes Crumbley, quote, “the first parent to be held criminally responsible for a mass shooting committed by their child.” She’s set to be sentenced in early April. Meanwhile, her husband, James Crumbley, will stand trial for involuntary manslaughter next month.
Priyanka Aribindi: The AP reports that Hamas’s response to a plan for a cease fire in Gaza was, quote, “generally positive.” That is, according to a mediator in Qatar. And Israel’s intelligence agency confirmed that officials were evaluating Hamas’s response. That is as US Secretary of State, Antony Blinken, is in the Middle East meeting with key government officials to discuss the latest potential hostage deal and cease fire plan. According to the State Department, one of Blinken’s goals on this trip is to, quote, “discuss ongoing efforts to secure the release of the hostages held by Hamas and enable an extended humanitarian pause in the conflict in Gaza.” And it’s really no secret that international pressure to end this war has been increasing. And as one of the major providers of military funding to Israel, it is not a good look for the U.S. and the Biden administration in particular. The stakes are high for Blinken’s trip, to say the very least, but it’s clear that any sort of deal is going to take even more time. Meanwhile, Israeli troops have started to strike the city of Rafah in the southern Gaza Strip where more than one million displaced Palestinians are sheltering. U.N. officials said, quote, “any move by Israel to extend its full scale invasion of Gaza into the massively overcrowded southern city of Rafah could lead to war crimes, which must be prevented at all costs.”
Juanita Tolliver: John Formella, New Hampshire’s attorney general, said on Tuesday that he’s identified the source of the fake President Biden robocalls that were going around ahead of the state’s primary last month. You’ll remember that thousands of Democratic voters in the Granite State received weird phone calls from an AI generated voice impersonating Biden and telling them not to vote in the days leading up to the election. Take a listen.
[clip of AI generated voice of President Joe Biden] You know the value of voting Democratic when our votes count. It’s important that you save your vote for the November election.
Juanita Tolliver: Oh my god.
[clip of AI generated voice of President Joe Biden] Voting this Tuesday only enables the Republicans in their quest to elect Donald Trump again.
Juanita Tolliver: Wow. That was creepy.
Priyanka Aribindi: It’s shockingly convincing.
Juanita Tolliver: Like–
Priyanka Aribindi: Yeah.
Juanita Tolliver: Robo Biden minus no intonation or vocal inflections sounded very, very close.
Priyanka Aribindi: Freakishly real. Freakishly real.
Juanita Tolliver: Whoa. According to Formella, the calls have been traced back to a Texas company called Life Corporation. The Attorney General’s office has opened a criminal investigation into the individuals behind the phone scam. NBC News reports Formella said, quote, “we have never seen something so close to an election before and with such a blatant attempt to mislead voters. We don’t want this to be the first of many.” I fear this is going to be the first of many.
Priyanka Aribindi: I know. And as we continue to see, this is not something we’re really at all equipped to deal with or combat properly quite yet.
Juanita Tolliver: Clearly.
Priyanka Aribindi: It’s really scary to think about what that might mean for this election. The New York Times is reporting that Ronna McDaniel, aka Ronna Romney McDaniel.
Juanita Tolliver: Name it.
Priyanka Aribindi: She might have dropped it, but we we never will. The chair of the Republican National Convention told former President Donald Trump on Tuesday that she plans to step down from her position shortly after the South Carolina primary. McDaniel has faced calls to resign for months from Trump and his allies. Unnamed sources tell the Times that Trump will push for North Carolina GOP state party chair Michael Whatley, a big time election denier, as her successor. Trump can’t just install Whatley, an election will take place to fill McDaniel’s seat, but um.
Juanita Tolliver: Will it?
Priyanka Aribindi: I wouldn’t hold my breath on this one.
Juanita Tolliver: Right. That’s exactly right. Also, like, what a horrible crash burning ending for Ronna Romney McDaniel. Like you changed your life for this.
Priyanka Aribindi: Like uh watching a car crash in slow motion.
Juanita Tolliver: Yes.
Priyanka Aribindi: We all knew it was happening. We all knew.
Juanita Tolliver: I mean, I guess she didn’t, but she should have. [laugh]
Priyanka Aribindi: She should have. She really should have.
Juanita Tolliver: And finally, you’ve heard of a sweet 16. But imagine celebrating your birthday a whole century later with a sweet 116. That was the case for Edie Ceccarelli this past Sunday. She is currently the oldest person in the United States and the second oldest person in the world. She’s living in the same Northern California town where she was born. According to The Guardian, her birthday has become a sort of holiday for the people of Willits. For the past couple of years, they’ve thrown parades decked out with streamers and balloons, honking cars and musicians. Little kids even make her cards and drop off flowers. I think that is truly sweet.
Priyanka Aribindi: So adorable, I love it.
Juanita Tolliver: Get this. Edie was born in 1908, okay. When Teddy Roosevelt was the president of these United States, the Wright brothers made their first public flights. I mean, imagine going from that to watching door plugs fly off airplanes. Wild.
Priyanka Aribindi: Truly. [laughter]
Juanita Tolliver: When people ask what her secret is to living this long, she says red wine and minding her own business. It is my motto. I am doing it. Priyanka. I mind my business.
Priyanka Aribindi: Juanita’s doing it. [laughter] I’m working on it. What a time for this woman to be alive for.
Juanita Tolliver: Yeah.
Priyanka Aribindi: She’s seen so much change, so many things over her lifetime. It really is incredible and these celebrations are so heartwarming.
Juanita Tolliver: I wonder what Eddie’s reaction was to the internet like of course we can think about the Model T, uh but I’m more interested in the internet. [laughing]
Priyanka Aribindi: I know, I just, I kind of like the last 30 years in particular. Edie, come on the show, we must talk to you.
Juanita Tolliver: No, seriously. Please.
Priyanka Aribindi: And those are the headlines.
Priyanka Aribindi: That is all for today. If you like the show, make sure you subscribe. Leave a review. Wish Edie Ceccarelli a very happy birthday.
Juanita Tolliver: Yay!
Priyanka Aribindi: And tell your friends to listen.
Juanita Tolliver: And if you’re into reading and not just how to hold Trump accountable like me, What a Day is also a nightly newsletter. Check it out and subscribe at Crooked.com/Subscribe. I’m Juanita Tolliver.
Priyanka Aribindi: I’m Priyanka Aribindi.
[spoken together] And mind your business.
Juanita Tolliver: Oh my gosh. I promise.
Priyanka Aribindi: Listen.
Juanita Tolliver: This is the key to just like a good level life, honestly.
Priyanka Aribindi: Right now I’m over indexing on the red wine and under indexing on the mind my own business. [laughter] I gotta switch that around. [music break]
Juanita Tolliver: What a Day is a production of Crooked Media. It’s recorded and mixed by Bill Lancz. Our show’s producer is Itzy Quintanilla. Raven Yamamoto and Natalie Bettendorf are our associate producers, and our showrunner is Leo Duran. Our theme music is by Colin Gilliard and Kashaka.