• The Supreme Court hears arguments today in a landmark case that could determine whether former President Donald Trump can be tried for his role in the January 6th insurrection. The case concerns whether presidents have “immunity” from prosecution for their conduct while in office. The court has never had to consider this issue until now, and it also has big implications for the 2024 election. Jay Willis, editor-in-chief of the progressive legal site Balls and Strikes, explains what’s at stake.
• On Wednesday, the court also heard its second abortion case of the term. It’s over whether an Idaho law that bans nearly all abortions can supersede a federal law that guarantees patients emergency care at hospitals. At least some of the court’s conservative justices expressed skepticism about the Idaho law.
• And in headlines: President Biden signs a $95 billion foreign aid package into law, Biden also signed a bill that would ban TikTok in the U.S. if its Chinese parent company doesn’t sell it off within the next year, and the United Nations called for an investigation into two mass graves in Gaza.

Show Notes:

• Pod Save The World – https://crooked.com/podcast/gaza-protests-roil-college-campuses/
• What A Day – YouTube – https://www.youtube.com/@whatadaypodcast

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TRANSCRIPT

Priyanka Aribindi: It’s Thursday, April 25th. I’m Priyanka Aribindi.

Josie Duffy Rice: And I’m Josie Duffy Rice and this is What a Day where we applaud George Santos for ending his recent campaign for New York’s first district, instead of further embarrassing himself because Lord knows we wouldn’t want that man to be embarrassed. 

Priyanka Aribindi: I don’t really know how much more embarrassed. I’m wondering how much further along the line you really go. 

Josie Duffy Rice: Don’t ask that question [laughter] because he will answer it. 

Priyanka Aribindi: And listen if it’s not in public office, it’s fine. Explore that. 

Josie Duffy Rice: Go for it. [laugh] [music break]

Priyanka Aribindi: On today’s show, the Supreme Court hears another case about abortion. Plus, President Biden signs the $95 billion aid package and says that Ukraine will receive military equipment immediately. 

Josie Duffy Rice: But first, today, the Supreme Court will hear oral arguments in what could be one of the most important decisions by the court of our time. The question in front of the court is whether presidents have quote, “presidential immunity from criminal prosecution for conduct alleged to involve official acts during their tenure in office.” Priyanka, this is just like a fancy way of saying, can you break the law as it relates to the presidency, as the president? 

Priyanka Aribindi: Yeah. Can you get in trouble for it? 

Josie Duffy Rice: Can you get in trouble for it? It’s an issue the court has never had to consider until now, and will determine whether Donald Trump can be tried for his role in attempting to overturn the 2020 election, and could have a domino effect on Trump’s other criminal cases as well. 

Priyanka Aribindi: Right. I mean, as you said, it just pretty much is like, can this man get in trouble if he did something objectively wrong, objectively bad? 

Josie Duffy Rice: Yeah. 

Priyanka Aribindi: That would get other people in trouble.

Josie Duffy Rice: This is the entire reason people got on ships and came to America and fought a revolution. 

Priyanka Aribindi: Right. 

Josie Duffy Rice: Because they were like, you know, the guy in charge has too much power and no accountability. And–

Priyanka Aribindi: And we don’t like that. 

Josie Duffy Rice: We don’t like that. And here we are. 

Priyanka Aribindi: The tables have turned. 

Josie Duffy Rice: Okay. Quick background about this particular case. Special counsel Jack Smith brought an indictment against Trump in this case in August of last year. Trump quickly appealed. An appeals court ruled against Trump in January, and at the end of February, the Supreme Court decided to take the case in a special session. If the court rules in favor of Trump, it would be one of the most consequential decisions in the history of our country, honestly. And it would also, again, keep Jack Smith from continuing to prosecute him and effect his other cases. 

Priyanka Aribindi: Right. 

Josie Duffy Rice: And given that we’re in an election year, a time is truly of the essence here. 

Priyanka Aribindi: Yeah. 

Josie Duffy Rice: There’s been a lot of pushback to the court’s decision to wait over a month to even take the case, and then wait another two months to hear arguments in it. And it could be even more months before we get a decision. In the past, the court has answered similarly urgent questions on an accelerated timeline. In 1974, the court issued a ruling in the Watergate Tapes case, just 16 days after oral argument. And in 2000, they issued a decision just one day after hearing arguments in Bush v Gore. But there’s really no telling what their timeline will be this time, especially given that the court has a pretty conservative majority, you may have heard. So to learn about the specifics of the case, I called up our friend Jay Willis. He is a lawyer and the editor in chief of Balls and Strikes, a website that provides progressive analysis of judges, courts, and the legal system they uphold. I started by asking him what Trump’s argument is for why he should be immune from all prosecution as a former president, and if there’s any precedent for such an argument. 

Jay Willis: Presidential immunity is a real thing. Donald Trump thinks it should be something bigger and more expansive. But there is a history of judges being reluctant to allow presidents to face legal liability for things that they do while in office. And historically, this mostly comes up in the civil context, like there aren’t a ton of circumstances in which you can sue the president, for example. But what Trump’s lawyers are arguing is that this concept of presidential immunity should also extend to any crimes he may or may not have committed as president. Now, lest you think I’m kidding when I say any crimes at oral argument in the the federal appeals court level, one of the judges asked Trump’s lawyer if a president could be charged for ordering the assassination of a political opponent, and his lawyer was like, well, yeah, you can charge a president then, but only if he’s been impeached and convicted by the Senate first. So this is like an exceptionally high bar that would basically make it impossible for the legal system to hold presidents accountable if and when they do crimes. 

Josie Duffy Rice: So that’s Trump’s argument. What is the federal government’s response? 

Jay Willis: It’s a funny brief to read, because you almost hear the whole thing in the voice of someone who’s like, wait, are you serious? Like, we actually have to write this. We actually have to argue this. But yeah. The idea is that if a president does crimes by virtue of being president, that should not insulate them from legal consequences forever. That’s just sort of like bedrock principles of how the legal system works, to the extent that it works is like if you do crimes, and especially if you abuse your power as a politician to do crimes, there can be consequences for that. Like this is almost like bumper sticker stuff, right? Like no one is above the law, not even the president. 

Josie Duffy Rice: So do we have an idea of how the court is going to rule in this case, do we have a sense of whether or not this court is open to the idea of absolute presidential immunity. I mean, it seems like it would be a bombshell decision on their part to make, like, almost too extreme even for this court. But they’ve surprised me before, and rarely in a good way. 

Jay Willis: No, I don’t think the court is going to buy this argument, and I honestly haven’t heard anyone who sort of tracks this stuff who does think that any majority of the Supreme Court exists that is going to say yes, to borrow Nixon’s line, right? It’s not a crime if the president does it. 

Josie Duffy Rice: Right. 

Jay Willis: But this is one of those cases where the legalese, the legal arguments getting made here, they really matter a lot less than the real world context in which this is taking place. The way the court has managed this case kind of gives away the game. Even if they don’t formally give Trump like this crimes hall pass. The next best thing for them to do. If you’re again, a Republican justice who wants a Republican president elected is to run out the clock because there might just not be time for a trial before the November election. So if you want to look at the timeline here, Trump was charged by special counsel Jack Smith in August. The judge in this case, Tanya Chutkan. She originally set a trial date for last month for March of 2024, but she’s had to delay the proceedings while this question of absolute presidential immunity for criminal liability winds its way through the court. The justices have also turned away multiple requests from Jack Smith to sort of expedite the proceedings, to allow the case to get back on track. The bottom line is that unless and until there is a trial date, the closer we get to that election, the likelier it is that some delay pushes the trial past the election. And for Trump, like, that outcome is as good as winning at the Supreme Court, because then if he wins the presidential election, he fires the special counsel, orders DOJ to drop the case. And we never hear about this again. Like–

Josie Duffy Rice: Right. 

Jay Willis: –half the reason Trump wants to be president again is that being president is a surefire way not to go to prison. So the conservative justices, they could write, as you say, this bombshell opinion relieving him of criminal liability and all future presidents from criminal liability. Or they could not do something crazy like that but still just run out the clock. 

Josie Duffy Rice: Right. Is there like a date by which if Trump is not tried and convicted by the state, then it’s too late? That’s not the election. Presumably, if he is on trial in late October, like, we’re cutting it pretty close.

Jay Willis: So there’s not like a firm date. There is a world in which, like, we could get a trial date very close to the election. If you look at the timeline in a different Trump case before the Supreme Court, the Colorado ballot case where the Supreme Court decided that Trump couldn’t be excluded from the ballot over his participation in January 6th. That appeal took place over the holidays between Christmas and New Year’s. The Supreme Court granted cert on January 5th. It heard oral argument in early February and decided it in early March, right before Super Tuesday when Trump was on all these ballots. And the reason I bring up all these dates is that when the court moving quickly is good for Donald Trump, the court knows how to move quickly and decide the case. So the question in this case is whether, when moving quickly is bad for Donald Trump, the conservative justices will view the task before them as similarly urgent. 

Josie Duffy Rice: Yeah. You know, one thing worth thinking about is influential role the court has played in partisan politics lately, like the conservative supermajority has given the Republican Party these victories that they could not have gotten anywhere else. Republicans have basically not been able to get anything done, even in the House, where they do hold the majority. But the Supreme Court has overturned Roe. They’ve tampered down on debt cancellation. They’ve killed affirmative action. Do you think it’s fair to say that even compared to the past, these six conservative justices on the court have had an unprecedented amount of power to steer national policy? 

Jay Willis: What the conservative legal movement has long understood is that by installing sort of dyed in the wool acolytes on the Supreme Court, this institution that has this sort of reputation as above partisan politics, that, as you say, they can enact policies that they would not be able to enact through the usual democratic legislative processes. 

Josie Duffy Rice: Right. 

Jay Willis: There’s, you know, poll after poll that demonstrates just how out of touch this Supreme Court, the Supreme Court supermajority is with like, what normal people want, not just like Democrats, not just like people on the left, but normal people who are trying to go about their daily lives. I think it’s really interesting, for example, that since the Supreme Court overturned Roe in Dobbs, as far as I can tell, every single opportunity at the state level that voters have had to weigh in on the right to reproductive access, reproductive access has won every single time. That’s not just in blue states, that’s in deep red states. I think the best way to think about the Supreme Court is that it is the most influential legislature in the country, and it is also the most conservative branch of government, and probably will be for the foreseeable future. 

Josie Duffy Rice: That was Jay Willis, editor in chief of Balls and Strikes. We’ll have more updates on oral arguments in the case on tomorrow’s show. 

Priyanka Aribindi: Meanwhile, as the Supreme Court prepares to hear Trump’s presidential immunity case today, the justices also heard their second major abortion case of the term on Wednesday. 

Josie Duffy Rice: Yeah, real banner week for this court, huh? It’s like never good news when the Supreme Court is hearing abortion cases. 

Priyanka Aribindi: No. 

Josie Duffy Rice: So I know we touched a little on this case on Wednesday’s show. But just give us a quick reminder about what it’s about. 

Priyanka Aribindi: This case is over whether Idaho’s near-total abortion ban can supersede a federal law that’s supposed to guarantee patients a certain level of emergency care. That law is called the Emergency Medical Treatment and Labor Act, or EMTALA, for short. EMTALA says that if someone experiencing a medical crisis shows up to an emergency room at a hospital that gets federal money, like funding from Medicare, that hospital has to either provide that patient stabilizing care or transfer them to a hospital that can. But the law doesn’t name any specific treatments that hospitals are required to provide. So two years ago, when this Supreme Court struck down Roe v Wade, the Biden administration issued a memorandum saying that EMTALA does cover abortion care when it’s needed to stabilize the patient and not just when their life is at risk. Idaho then challenged that. So here we are back at the Supreme Court. 

Josie Duffy Rice: Did the justices seem like they were kind of leaning one way or the other during arguments? You know, what did it look like?

Priyanka Aribindi: I mean it was a really intense hearing. And I think the three to watch here are really Chief Justice John Roberts and Justices Amy Coney Barrett and Brett Kavanaugh. They are the ones whose votes will likely decide which way the court swings. And they seemed torn here. Of the three of them, Justice Barrett seemed to have the most pointed questions. Here is an exchange between her and Idaho’s attorney, Joshua Turner. She asked him whether a doctor who believed an abortion was necessary could be prosecuted. 

[clip of Justice Amy Coney Barrett] Would they be prosecuted under Idaho law? 

[clip of Joshua Turner] No, no. If they if they reached the conclusion that the Doctor Reynolds, Doctor White did that, these were life saving– 

[clip of Justice Amy Coney Barrett] What if the prosecutor thought differently? What if the prosecutor thought, well, I don’t think any good faith doctor could draw that conclusion? I’m going to put on my expert. 

[clip of Joshua Turner] And that, your honor, is the nature of, prosecutorial discretion. And it may result in um a case that requires–

[clip of Justice Amy Coney Barrett] Does Idaho put out any–

Josie Duffy Rice: I just want to say the way that man said, no, they wouldn’t be prosecuted, reminds me of, like, when you confront your college boyfriend about cheating and you, like, have pictures of it, and he’s like, it’s not me. 

Priyanka Aribindi: No. 

Josie Duffy Rice: It’s like, I don’t believe you and you don’t believe yourself. You’re not telling the truth. 

Priyanka Aribindi: That answer inspired negative confidence. 

Josie Duffy Rice: Negative confidence. 

Priyanka Aribindi: Yes. Meanwhile, the three liberal justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson were firmly on the side of the Biden administration, saying that abortion care is included under EMTALA. And they really skewered Idaho’s lawyer, Turner. Here’s an exchange between Turner and Sotomayor, where she asks him about a hypothetical woman who shows up to the ER after her water breaks at just 14 weeks of pregnancy. 

[clip of Justice Sonia Sotomayor] She was in and out of the hospital up to 27 weeks. This particular patient they tried, had to deliver her baby. The baby died. She had a hysterectomy and she can no longer have children. All right. You’re telling me the doctor there couldn’t have done the abortion earlier? 

[clip of Joshua Turner] Again, it goes back to whether a doctor can, in good faith, medical judgment– 

[clip of Justice Sonia Sotomayor] That’s a lot for the doctor to risk when– 

[clip of Joshua Turner] Well, I think it’s protective of– 

[clip of Justice Sonia Sotomayor] When–

[clip of Joshua Turner] –doctor judgment, your honor.

[clip of Justice Sonia Sotomayor] When Idaho law changed to make the issue whether she’s going to die or not, or whether she’s going to have a serious medical condition. There’s a big [?] day life, by your standards. Correct? 

[clip of Joshua Turner] Yeah. It is very case by case, the example– 

[clip of Justice Sonia Sotomayor] That’s the problem. 

Priyanka Aribindi: Right. I mean, she said it all. We know there are probably at least three justices here who are ready to side with the Biden administration. They will just need two more of the other justices to join them. And it doesn’t seem totally out of the question here. But also, you know, you can never be sure with this court how things are going to shake out, especially on this issue. 

Josie Duffy Rice: Yeah. This is yet another example of what we’ve seen a lot this term, which is attorneys being like we’re criminalizing them for their protection. We keep hearing that and it doesn’t make any sense. 

Priyanka Aribindi: Not passing the smell test. 

Josie Duffy Rice: Not at all. 

Priyanka Aribindi: Nope. 

Josie Duffy Rice: You know, you mentioned three of the conservative justices. What about the three other conservative justices, Samuel Alito, Clarence Thomas, Neil Gorsuch? What were they saying? 

Priyanka Aribindi: Here is where things get kind of scary. These justices seemed especially interested in exploring the concept of fetal personhood, which is the idea that a fetus, even an embryo, has the same rights as any other person. Establishing those rights has been a longtime goal of anti-abortion advocates. And Justice Samuel Alito really got into it with the attorney representing the administration side, Solicitor General Elizabeth Prelogar. He asked her about why EMTALA makes a few references to a, quote, “unborn child” and what that implies about potential rights. 

[clip of Justice Samuel Alito] The term emergency medical condition is defined to include a condition that places the health of the woman’s unborn child in serious jeopardy. So in that situation, the hospital must stabilize the threat to the unborn child, and it seems that the plain meaning is that the hospital must try to eliminate any immediate threat to the child. But performing an abortion is antithetical to that duty. 

[clip of Elizabeth Prelogar] But in a circumstance–

[clip of Justice Samuel Alito] Now and you go so far as to say that the statute is clear in your favor, I don’t know how you can say that in light of the, of those provisions that I’ve just read to you. 

Priyanka Aribindi: Now, the Solicitor General pushed back on that and said that the law did nothing to displace the needs of a pregnant person who’s in medical danger. But it’s still a concerning line of questioning for people who care about access to abortion. So I asked Erin Ryan, one of the co-hosts of Crooked’s podcast, Hysteria, what she made of this line of questioning. She said that it reflected Alito’s ignorance on abortion care. 

[clip of Erin Ryan] In many situations, like an ectopic pregnancy, for example, there is no stabilizing the fetus. If a mother comes into an emergency room and she is pregnant and she’s experiencing life threatening hypertension. An abortion is the cure for that. There is no stabilizing the fetus. The fetus cannot survive outside of her body. And so to me, it both reflected a proud ignorance on the part of Sam Alito when it comes to maternal health and a complete disregard for the humanity and personhood of women. 

Priyanka Aribindi: As with most of these major decisions in front of the court right now, we are not expecting a ruling until near the end of the term in June. But obviously we will continue to follow this. That is the latest for now. We’ll get to some headlines in just a moment, but if you are enjoying our show, please make sure to subscribe and share it with your friends. We’ll be right back after some ads. [music break]

[AD BREAK]

Priyanka Aribindi: Let’s wrap up with some headlines. 

[sung] Headlines. 

Priyanka Aribindi: President Biden signed a $95 billion foreign aid package into law on Wednesday. The bipartisan bill, which passed overwhelmingly in the Senate on Tuesday night, sends military assistance to Ukraine, Israel, and Taiwan. Here’s Biden at the white House praising Congress for passing this bill. 

[clip of President Joe Biden] It’s going to make America safer. It’s going to make the world safer. And it continues America’s leadership in the world and everyone knows it. 

Priyanka Aribindi: The bill will send about $61 billion to Ukraine, $26 billion to Israel, and $8 billion for the Indo-Pacific region. There’s also $1 billion going towards humanitarian aid for Palestinians. As we’ve been covering on the show. This comes after months of tense negotiations and deadlock across the aisle over foreign aid. House Representative Pramila Jayapal was one of 37 Democrats in the House who opposed the funding to Israel. She talked about her decision on Pod Save the World and about how she views Congress’s push for unconditional military aid for Israel. 

[clip of Representative Pramila Jayapal] For many of us, I think it felt a little bit like an Iraq War moment. I mean, obviously very, very different situations. But I think we often get into these situations in Congress, and members of Congress feel that they can’t stop funding a war. And maybe five years later, ten years later, in some cases, two years later, people say, we shouldn’t have done that. 

Priyanka Aribindi: We will link to that full episode in our show notes if you’d like to keep listening. 

Josie Duffy Rice: And in that same bill is a provision requiring the sale of TikTok. It would force the U.S. to ban the app if ByteDance, the Chinese company that owns TikTok, does not sell it within the next nine months. Of course, ByteDance has already vowed to fight against this measure. This is another one of those rare bipartisan efforts. U.S. lawmakers on both sides of the aisle are concerned that TikTok is a national security threat. So could this ban really take effect? It’s kind of hard to tell. A likely legal battle could draw the ban or potential sale of TikTok out longer than those nine months. But some are looking to other countries who have banned the app, including India, which banned TikTok permanently in January 2021. Many users and content creators have moved on to other social media platforms with similar short form video features already. Think Instagram Reels or YouTube shorts. Look.

Priyanka Aribindi: My head is in my hands. 

Josie Duffy Rice: I know, because TikTok is the only social media platform that gives me any joy. 

Priyanka Aribindi: Any joy. Also like I’m sorry, YouTube shorts, that’s a no for me. 

Josie Duffy Rice: It’s a no for me. 

Priyanka Aribindi: Absolutely no. Instagram Reels is just lame. It just is repurposed TikTok content from like–

Josie Duffy Rice: Yeah. 

Priyanka Aribindi: –two months ago. 

Josie Duffy Rice: It’s true. 

Priyanka Aribindi: That’s going to be my source of entertainment? You want me to ask Meta AI to find me something entertaining on that app? No.

Josie Duffy Rice: No.

Priyanka Aribindi: The United Nations is calling for an investigation into two mass graves uncovered in Khan Younis. At least 320 bodies were found at the remains of two Gaza hospitals that Israeli troops raided this year. It is a truly horrific, horrific scene. The U.N. Human Rights Office reports that some of those Palestinian victims were found naked with their hands tied, and is calling for a probe into possible war crimes. It’s been 200 days of Israel’s siege on Gaza after Hamas’s attack on October 7th, and more than 34,000 Palestinians have been killed during that time, and Israel’s ground invasion of Rafah is still imminent. Top Israeli and Egyptian officials met on Wednesday to discuss the potential fallout, according to Axios. Egypt has kept its borders very tight to Palestinians throughout this conflict, and they are worried about an uncontrollable refugee crisis that could spill over their border with the Rafah invasion. More than a million Palestinians, many of them who have already been displaced, are sheltering in Rafah right now. Israel maintains that invading Rafah is a crucial part of their objective of defeating Hamas. 

Josie Duffy Rice: And there is good news for all you frequent fliers. The Biden administration on Wednesday finalized rules requiring airlines to issue automatic refunds to travelers who experienced, quote, “significantly delayed flights.” 

Priyanka Aribindi: You got my attention. 

Josie Duffy Rice: This is where we get justice. 

Priyanka Aribindi: Truly. 

Josie Duffy Rice: Under the Transportation Department’s current rules, individual airlines decide how long is long enough to issue a refund, and when they do offer a refund, they typically offer a travel voucher instead of cash. Now, the Biden administration has set new standards. A delay of three hours for domestic flights and six hours for international flights will get you that cash refund. 

Priyanka Aribindi: American Airlines, your days are numbered. Like, I don’t know what you’re doing, but we’re all getting paid. 

Josie Duffy Rice: How are these airlines going to survive? I literally don’t know. 

Priyanka Aribindi: I don’t know. I don’t know. 

Josie Duffy Rice: The new rules also allow travelers to reject travel vouchers as refunds and opt for their money back. 

Priyanka Aribindi: Love it. 

Josie Duffy Rice: Yeah. Amazing. The Transportation Department also issued its own new rule requiring airlines to be more upfront about baggage fees and fees the traveler will incur for canceling flights. But as with most things, we do have to wait. The new rules will take effect over the next two years. Still overall, great day for travelers of the skies. 

Priyanka Aribindi: Huge. 

Josie Duffy Rice: And no Boeing news. 

Priyanka Aribindi: No Boeing news. We’ll take it. It’s a win.

Josie Duffy Rice: It’s a win. 

Priyanka Aribindi: And those are the headlines. 

[AD BREAK] 

Priyanka Aribindi: That is all for today. If you like the show. Make sure you subscribe. Leave a review. Book a flight and tell your friends to listen. 

Josie Duffy Rice: If you are into reading and not just all of those juicy Supreme Court transcripts like me, What a Day is also a nightly newsletter, so check it out and subscribe at Crooked.com/Subscribe. I’m Josie Duffy Rice. 

Priyanka Aribindi: I’m Priyanka Aribindi.

[spoken together] And someone give George Santos a reality show already. 

Josie Duffy Rice: Put this man on a Real Housewives franchise. 

Priyanka Aribindi: The Housewives these days, they’re not all married. Like just get him [?]–. 

Josie Duffy Rice: No. 

Priyanka Aribindi: Oh. He’s married, he’s married. Never mind. 

Josie Duffy Rice: He is, well. 

Priyanka Aribindi: I think. 

Josie Duffy Rice: TBD. 

Priyanka Aribindi: Is he? Is he? 

Josie Duffy Rice: I mean he said it once. It’s like, who knows? Anything is possible. 

Priyanka Aribindi: In his web of lies. Anything. 

Josie Duffy Rice: Right? Ugh.

Priyanka Aribindi: I’d watch, I think. 

Josie Duffy Rice: Oh, my God, I’d watch every day are you kidding? [music break]

Priyanka Aribindi: What a Day is a production of Crooked Media. It’s recorded and mixed by Bill Lancz. Our associate producers are Raven Yamamoto and Natalie Bettendorf. We had production help today from Michell Eloy, Greg Walters and Julia Claire. Our showrunner is Erica Morrison, and our executive producer is Adriene Hill. Our theme music is by Colin Gilliard and Kashaka. 

[AD BREAK]