Melissa, Leah, and Kate recap the oral arguments in the Idaho case about the legality of abortions in emergency situations, and the case about whether former President Trump is immune from prosecution in the federal election interference case arising out of January 6. It’s all very bleak!

In better news, Strict Scrutiny will be live at the Tribeca Film Festival on June 13th! Tickets go on sale Tuesday, April 30th, at 11am ET. Learn more and get tickets at tribecafilm.com/strict

 

TRANSCRIPT

 

Melissa Murray [AD]

 

Show Intro Mister Chief Justice, may it please the court. It’s an old joke, but when an arguee man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said. I ask no favor for my sex. All I ask of our brethren is that they take their feet.

 

Leah Litman Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court. That seems to be fine with states taking women’s organs and presidents staging coups and the legal culture that surrounds it. We are your hosts. I’m Leah Litman.

 

Melissa Murray I’m Melissa Murray.

 

Kate Shaw And I’m Kate Shaw.

 

Leah Litman Here is what we have in store for you today. We’re just doing recaps because our little chaos Muppets on the court decided to close the term with a bang. As in bang bang democracy, you might be dead along with women’s ability to retain their organs. So as that suggests, we are going to focus on two cases. One is the case about whether hospitals can provide emergency abortions that are medically necessary to stabilize pregnant patients. The answer may be no, since what’s a few organs, ladies, especially if they are lady organs?

 

Kate Shaw In which case are they really organs at all?

 

Melissa Murray They’re not.

 

Kate Shaw And in the other case we’re going to talk about is presidential immunity. So whether presidents can be criminally prosecuted for, among other things, ordering the assassination of a political rival, ordering the military to stage a coup and other things to. And the answer Trump gave and that some of the justices seem inclined to embrace, is no. Former presidents cannot be criminally prosecuted for those things, at least if the former president is a Republican running for the white House again. So those are the two big cases we’re going to focus on. We are going to save our discussion of the major homelessness case and immigration and labor cases until next week, because we want to have time to really unpack what happened in these two cases.

 

Melissa Murray All right. So first up is the court’s oral argument in the, Taylor case, Moyle versus United States. So the court heard oral arguments in this case involving EMTALA and EMTALA is a federal law, the Emergency Medical Treatment and Labor Act, that requires hospitals to be able to provide emergency medical treatment to stabilize patients. The question here is whether the justices are going to treat the statute as law, when the medical treatment that is required at an emergency is an abortion. So a new strain of abortion exceptionalism at the court, this time involving federal law. The case presents a conflict between the federal law EMTALA, and an Idaho state law that prohibits all abortions except where necessary, to save the mother’s life.

 

Kate Shaw So let’s lay some groundwork. EMTALA, the federal statute Melissa was just talking about, directs hospitals to provide stabilizing care for emergency medical conditions that place the health of the individual in serious jeopardy, conditions that involve serious impairment to bodily functions, and conditions that involve serious dysfunction of any bodily organ. If the patient is in that kind of crisis, EMTALA requires stabilizing care to prevent further deterioration, and under basic principles of federal supremacy and preemption, that should be the end of the case. If there’s a conflict between state and federal law. Federal law is supposed to control full stop.

 

Leah Litman And yet that basic principle did not seem like it was necessarily going to carry the day here. And that’s at least in part because Idaho, as well as several Supreme Court justices, seem to think it’s okay to sacrifice an organ or two, or many, if that is the cost of denying women abortions. So that is, I know I’ve now kind of like semi joked. It’s not like really joked, but like alluded to this several times. But that is actually the question in this case, can a state prohibit hospitals from providing abortions that doctors believe are necessary for stabilizing care, perhaps prevent severe pain, perhaps to prevent loss of organs, perhaps to prevent deterioration and later loss of life. Justice Sotomayor made this point perfectly clear in this clip we’re going to play now.

 

Clip That’s my point. Just since the point, which is they will present with a serious medical condition that doctors in good faith can’t say will present death, but will present potential loss of life. Those doctor, a potential loss of an organ, or serious medical complications for the woman. They can’t perform those abortions.

 

Clip Yeah. Your honor, if that hypothetical exists and I don’t know of a, a condition that is so certain to result in the loss of an organ, but also so certain not to, transpire with death if that condition exists. Yes. Idaho law does say that abortions in that case aren’t allowed. And I think.

 

Clip Alright let me stop you.

 

Leah Litman Just like to pause to note where the Overton window has shifted two years after Dobbs. The question is how many organs, maybe which organs a state can take from women. So even putting aside whether the justices openly embrace fetal personhood, perhaps in this case in separate writings or later cases, the issue is now kind of like if you have a uterus, are you a person entitled to medical care?

 

Melissa Murray And it’s also worth noting, it’s not just a question of the loss of life or the loss of organs. Some of these organs that may be lost are actually related to future fertility, like. Your uterus, for example. And so this court seems to have no problem with the prospect of an emergency hysterectomy, even though that seems completely antithetical to a pro-life vision of the world. But I digress. To support this Gilead forward regime of utter patriarchy, Idaho came up with a nonsensical theory that imagines the federal law requiring the hospitals only to provide care that is permitted or authorized by state law. And I just have to say, as a matter of textual healing, this makes zero sense. I’m taller has in it an actual provision that preempts conflicting state law. So if there is a state law like Idaho’s, for example, that conflicts with the federal law says that and two terms have to take precedent. It wins out where the state law conflicts with the federal requirement to provide stabilizing care, as is the case here in Moyle. That preemption provision would have absolutely no meaning if EMTALA merely required hospitals to provide the level of care that state law permitted. So basically, Idaho’s theory of the case here is the exact opposite of how federal preemption works. Generally, federal law wins out over conflicting state law, and the state law doesn’t determine the reach and expanse of federal law. But we’re in the Upside Down, so who cares?

 

Kate Shaw And in terms of the actual implications of the argument Idaho is making, it’s theory would presumably also mean that a state could pass a law that prohibits all abortions, even where necessary, to prevent the death of a pregnant person. So the person is in medical crisis, they will definitely die, and the only treatment that will prevent that is an abortion. And Idaho can still say, no, you cannot perform that abortion. Even you federally funded hospital and I’m told, wouldn’t allow the hospital to perform those lifesaving abortions because I’m told would incorporate all state law, including the complete prohibition. So that is the necessary implication of the state’s argument. And all of the Democratic appointees on the court were appropriately horrified and indignant at what was happening in front of them. And I think you can really hear that in this exchange with Elena Kagan.

 

Clip Chief justice.

 

Clip Your theory of EMTALA is that EMTALA preempts none of it. That a state tomorrow could say, even if death is around the corner, a state tomorrow could say even if there’s an ectopic pregnancy, that’s still that’s a that’s, as a choice of the state. And EMTALA has nothing to say about it.

 

Clip And that understanding is a humble one with respect to the federalism role of states as the primary care providers for their citizens, not the federal.

 

Clip It may be too humble for women’s health, you know. Okay. Thank you.

 

Melissa Murray To flesh out the abject cruelty and horror that Idaho’s position would inevitably inflict. Justice Sotomayor asked the lawyer representing Idaho about specific cases, really specific cases involving real patients, and whether Idaho’s law would allow abortions in those very circumstances that have actually arisen. We’re not going to play those clips here, because otherwise this episode would be inordinately long. But among the cases that Justice Sotomayor mentioned is the case of Anya Cooke. Cooke went to the E.R. when she was 16 weeks pregnant with bleeding. She was turned away and ended up on life support. And then Justice Sotomayor also referenced the case of a woman who presented at the ER at 14 weeks with similar symptoms. She ended up having a hysterectomy to stop the bleeding. And for those who are unfamiliar, a hysterectomy is the actual removal of the uterus and is a fertility ending intervention. Predictably, Idaho’s lawyer, Commander Joshua Turner, refused to say that women could get abortions under those conditions under Idaho’s law.

 

Leah Litman It gets back to the end of the Kagan clip that we just played like a little too humble for women’s health. And, you know, who’s not showing any humility is the state who has just decided, like, we can determine which organs we can take from women, like they’re just playing operation with real patients who show up at hospitals.

 

Melissa Murray This was such a devastating colloquy. I mean, I literally I don’t understand why the Biden administration has not made it into an ad and just, like, played it nonstop all over the country. And in fact, the exchange was so devastating that it prompted our favorite court feminist, Samuel Alito, to jump in to try and salvage Turner from the wreckage of his own creation. So let’s play that clip now.

 

Clip Now you have been presented here today with very quick summaries of cases, and were asked to provide a snap judgment about what would be appropriate in those particular cases. And honestly, I think you’ve hardly been given an opportunity to answer some of the hypotheticals. But would you agree with me that if a medical doctor who is an expert in this field were asked, bang, bang, bang, what would you do in these particular circumstances which I am now going? Going to enumerate, the doctor would say, I don’t I this is not how I practice medicine. I need to know a lot more about the individual case. Would you agree with that?

 

Melissa Murray And again, this was so devastating that Justice Alito’s intervention was not enough to save Joshua Turner. So Amy Coney Barrett jumped in to try and clean up this mess that Idaho had made. And she said that she was actually shocked by the answers that Joshua Turner had provided. So let’s hear that clip.

 

Clip It is very case by case, the example. That’s the problem. I’m kind of shocked, actually, because I thought your own expert had said below that these kinds of cases were covered. And you’re now saying they’re not. No, I’m not saying that. That’s just my point, Your Honor. Is that. Well, you’re hedging. I mean, Justice Sotomayor is asking you, would this be covered or not? And it was my understanding that the legislature’s witnesses said that these would be covered.

 

Kate Shaw And just the reason these interventions by Alito, by Barrett are not enough to save Idaho’s arguments is because they’re beyond salvation, right? Idaho is giving the answer that Idaho believes is legally correct, which is it can require women to undergo these kinds of harms, and there’s nothing legally preventing them from doing that. So there’s no intervention that could have produced a different result.

 

Leah Litman I was partially gratified to hear Justice Barrett say she was shocked by this because it is shocking, right, that this is actually a state’s position. On the other hand, it isn’t shocking if you have been paying attention to the arc of the anti-abortion movement for the last however many decades, including the years after Dobbs. So I don’t totally understand how she could be surprised by this. And on some level, I wanted to use this as an occasion to remind her that, Amy, the patriarchy is never going to be there for you. Girl, like the patriarchy will not help cool girls either. And that is just like definitional to the patriarchy.

 

Melissa Murray The face eating leopards are also going to eat your face.

 

Leah Litman Yes. Many kind of reminders in this exchange, but just a spirits effort to try and clean this up and get Idaho to actually back down from their actual position only led to an exchange in which Idaho doubled down and indeed threatened to say yes. Physicians could be subject to criminal prosecutions if prosecutors second guess the doctor’s medical judgment. As you can hear in this clip.

 

Clip 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 in that. Your Honor, is the nature of, prosecutorial discretion. And it may result in, a case, I don’t know, put out any.

 

Leah Litman So this exchange was again, like, shocking, but it was additionally shocking to me after the following argument the next day, given that there were no Republican appointees in the case who raised any concerns about prosecutorial overreach, abuse, harassment, overcharging, it seemed like they were saving up all of their sympathies for their would be king, and just completely unconcerned about prosecutorial overreach here.

 

Kate Shaw Protecting coups from prosecutorial abuse, important, protecting bodily integrity and doctors provision of appropriate care to save people.

 

Melissa Murray Save women. That’s the key.

 

Kate Shaw That’s the key to save women from prosecutorial staff. Footnote way less of a problem for a majority on this court. It’s really it was really wild to hear these cases back to back and the selectivity of their concerns about the abuse of the prosecutorial process. But we’re getting ahead of ourselves. We’ll finish pantalla, and then we will spend plenty of time on the immunity arguments. So we have both Alito and Barrett jumping in, pressing the Idaho attorney, you know, maybe with slightly different objectives. But then Coach Kavanaugh entered the chat, decided he had a theory, which I think he thought might be a way to save Idaho’s argument. So this theory was that regardless of the words of the statute that Idaho has passed, and regardless of what the state Supreme Court has said about the meaning of that statute, and regardless of what has been happening on the ground in Idaho, now that the Supreme Court has allowed the statute to go into effect, which has involved patients being denied care and turned away from emergency rooms, obviously Justice Kavanaugh says none of that matters, actually. But actually, Idaho’s exception for abortions necessary to save the mother’s life necessarily does permit abortions in the kinds of cases that Sotomayor was describing that doesn’t remotely describe the real world and what is happening right now. But it is a fiction that Kavanaugh would like to indulge that he thinks would make this conflict go away and thus no harm, no foul.

 

Leah Litman Yeah, they will just gaslight us into taking away emergency care organs, bodily functions and insists like, no, this isn’t actually happening while it plays out right.

 

Kate Shaw Me and not your lying eyes is basically their claim that who you should believe.

 

Leah Litman That’s if you’re allowed to have eyes anymore, like those are organs.

 

Kate Shaw So no, literally, blindness is a thing that I know. In the and that’s I think, what you were alluding to, but completely cavalier disinterest about any of these consequences. But don’t worry, we also had both Idaho and Justice Gorsuch and most importantly, essentially Justice Alito deciding to go full fetal personhood in this argument because obviously YOLO. So let’s play a couple of those clips here.

 

Clip So in Idaho, like 22 other states and even Congress and and EMTALA recognizes that there are two patients to consider in those circumstances. And the two patients scenario is is tough when you have these competing interests. And then what do we do with the definition of individual to include both the woman and as the statute says, the unborn child.

 

Clip We’ve now heard let’s see, an hour and a half of argument on this case. And one potentially very important phrase in and Tyler has hardly been mentioned. Maybe it hasn’t even been mentioned at all. And that is in Tyler’s reference to the woman’s, quote unquote, unborn child. Isn’t that an odd phrase to put in a statute that imposes a mandate to perform abortions? Have you ever seen an abortion statute that uses the phrase unborn child? 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.

 

Kate Shaw Just to take a step back, fetal personhood is this idea that many in the anti-abortion movement have been pushing for decades, which is that a fetus is a person with either all of or most or many of the rights of any other person that governments are bound to respect. In the same way, they’re bound to respect the rights of of anyone else. Well, of, of, you know, throw women in the mix. The way they are bound to respect the rights of other persons.

 

Melissa Murray Of men.  Fetuses and men are equal.

 

Kate Shaw Sort of like top tier, top, top tier person, top tier, and then women.

 

Melissa Murray Because when they are unborn, they could be men. And so yeah, it’s only when they’re born women that you don’t want to give them full rights because there’s the possibility while they’re fetuses.

 

Kate Shaw That’s right. So full rights.

 

Melissa Murray At least while they’re eggs, that’s technically not true. But they don’t know science.

 

Kate Shaw When we’ve ascertained sex and when we’ve ascertained sex. I’m not quite sure how this how this applies, but but I think the general claim that men and fetuses of uncertain sex, those are the privileged class. And then there’s the rest of us.

 

Melissa Murray It’s in the constitution. That’s it’s like they own property. Yeah.

 

Kate Shaw And so that is in the ether. Absolutely. It is underlying many of these post Dobbs efforts and pre Dobbs efforts in many states to enshrine this idea of fetal personhood into the law. It was on display in the Florida Supreme Court in the argument that we played some excerpts from around the ballot initiative in Florida. It was very much on display in the Alabama IVF ruling, which was not only about fetal personhood, but actually embryonic personhood. So personhood extends all the way back to fertilization on the views of many. So what Justice Alito seemed to be saying was, it’s not just efforts in the states, it’s Congress. The federal government has essentially already recognized fetal personhood, or at least he was suggesting this because of the fact that I’m taller, has in it a reference to an unborn child as also potentially requiring stabilizing care.

 

Melissa Murray So can we talk about that for a minute? Like why does the statute have this? Well, because, Leah, do you know the answer? Like I’m going to call on you, Leah.

 

Leah Litman Oh well, yeah, because I can read. So it turns out that, you know, this was added to, EMTALA after a series of cases in which hospitals denied care to individuals when the care was needed, not for the pregnant patient, but for the fetus. So a Solicitor General Prelogar noted instances where, you know, a woman would show up at a hospital and the umbilical cord was, you know, manipulated in such a way where it posed a danger to the fetus and a hospital would turn away care in those instances. So what this provision was doing was not denying the pregnant patient, the woman, the ability to receive care by, you know, denying that she’s an individual and making fetuses individuals. It was instead making clear that if a pregnant patient shows up at a hospital and says, my fetus needs care, hospitals cannot refuse that.

 

Kate Shaw And to say let let’s say one more background fact about EMTALA  is the reason some of the individuals in those circumstances were being turned away was because of inability to pay. Right. Like that’s the background intervention that EMTALA is making is requiring hospitals to provide emergency care when people in crisis present in emergency rooms, regardless of whether they can pull out an insurance card or show that they have the money to pay for the services. Federal law requires the provision, regardless of ability to pay. It’s a really important principle in federal law, and that requirement encompasses a fetus in some kind of distress who also can’t be turned away, like in the womb if the mother is unable to pay. So that’s the reason that that language is included. And yet what Justice Alito would like to do. Is to use that language to essentially suggest that it is primarily, or maybe only, the unborn child who is bound to be respected. And Idaho is certainly able to make that judgment, because you know what installer kind of does, too.

 

Melissa Murray Literally, the only time Textualism actually made an appearance in this argument, because it wasn’t in any of the other provisions of them. EMTALA, that they seem to care about the actual words of the statute only here.

 

Kate Shaw Can I can I say one other thing about another anti textualist sort of moment. Maybe thread throughout, but it really, I thought, was crystallized in this one moment, which is. So that’s the sort of background for why this, you know, reference is in the statute at all. And Justice Alito, kind of at one point sort of waxed nostalgic about not the text of the statute, not the term unborn child, but the kind of good old days, the halcyon days of the Reagan administration when he basically pressed Elizabeth Prelogar on her argument that actually, EMTALA, does require doctors to perform emergency abortions under some narrow set of tragic circumstances where there’s a real crisis and an abortion is necessary. And he’s like, no, no, no, no, no. I remember the Reagan administration. Nobody would have signed off Congress, the white House. You’re saying they set a stat, they passed a statute that might have sometimes allowed an abortion? No, no no, no, no, I was there. Okay. That’s that’s textualism basically.

 

Melissa Murray It’s also shitty history since Ronald Reagan as governor of California, signed into law the most expansive law providing for abortion access to date at that point in time in history. So Ronald Reagan was authorizing abortions well before he was not authorizing abortions. So there we are.

 

Kate Shaw Well, by the time he got into the white House and the sort of ghouls at the, you know, very early federal society sort of had their claws in the Justice Department of the white House. That’s the Ronald Reagan that Alito was interested in. And that guy says Alito would never have allowed this permission.

 

Melissa Murray Except he did. So there we are.

 

Kate Shaw Except that he did.

 

Leah Litman Like no, no real textualism, no real statutory interpretation, no real history, just some vibes about what the Reagan administration was all about. That’s how we do statutory interpretation now.

 

Melissa Murray That’s right. So it was left to Solicitor General Elizabeth Prelogar, to make clear that the women of the United States are not having this. And she was righteously indignant. Was Samuel Alito literally playing in the face of every single person of reproductive age in this country? So let’s hear a couple of clips of her and her righteous, righteous indignation.

 

Clip But to suggest that in doing so, Congress suggested that the woman herself isn’t an individual, that she doesn’t deserve stabilization. I think that that is an erroneous reading of this statute.

 

Clip Nobody’s suggesting that is a woman is not an individual, and she doesn’t, she doesn’t, deserve stabilization.

 

Clip Well, the premise of the question would be that the state of Idaho can declare that she cannot get the stabilizing treatment even if she’s about to die. That is their theory of this case and this statute. And it’s wrong.

 

Melissa Murray And I think at this point, although she’s a repeat player at the Supreme Court and has to see these goblins on a regular basis, I think on this particular day she had it with Sam Alito. So let’s hear that.

 

Clip I don’t know how you can say that in light of that, of those provisions that I’ve just read to you.

 

Clip The statute did nothing to displace the woman herself as an individual with an emergency medical condition when her life is in danger, when her health is in danger. That stabilization obligation equally runs to her and makes clear that the hospital has to give her necessary stabilizing treatment. And in many of the cases you’re thinking about, there is no possible way to to stabilize the unborn child because the fetus is sufficiently before viability that it’s inevitable that the pregnancy is going to be lost. But Idaho would deny women treatment in that circumstance even though it’s senseless.

 

Melissa Murray You can even hear just a tinge of her just exasperation with this nonsense in this clip.

 

Clip So it’s inconsistent with the definition in the of the in the dictionary act?

 

Clip No, not at all. The duty runs to the individual with the emergency medical condition, the statute.

 

Kate Shaw And am I right that Elizabeth Prelogar is from Idaho?

 

Melissa Murray She is.

 

Leah Litman Yeah.

 

Melissa Murray Wasn’t she Miss Idaho at one point?

 

Leah Litman She was Miss Idaho.

 

Kate Shaw Okay.

 

Melissa Murray Miss Idaho would never.

 

Kate Shaw And she she did never. Right. During this argument, it was pretty clear that I don’t know if it was the case. I don’t know if it was Idaho, but.

 

Melissa Murray If it was just. I’m so fucking tired of you, sir.

 

Kate Shaw It’s the end of the term. I have to look at your face for two more days and I will get through it. But this is not easy. Maybe. I’m not sure all of it, but it did feel like there was maybe something to her defending her fellow Idaho women from what the state legislature has wrought and what the Supreme Court is attempting to permit them to do.

 

Melissa Murray Bottom line predictions.

 

Leah Litman So I really thought I heard there were five votes to allow Idaho to enforce a law that is on the ground, leading physicians and hospitals to refuse to treat emergency conditions that risk loss of organs and eventually loss of life, and require patients to be flown out of state, maybe by denying that that is happening. But that’s what it sounded like to me.

 

Melissa Murray Yeah, that’s that seems. Right. Women are expendable, you know. I’m not only do they vote in greater numbers than men, but they’re just generally expendable. Like their parts are expendable.

 

Leah Litman Women are not without political power. If they’re allowed to live.

 

Melissa Murray If they’re locked up. See, this is the key. This is how you stop that. If if they’re allowed.

 

Leah Litman As I said, if they’re.

 

Melissa Murray If they’re allowed to live.

 

Kate Shaw Sotomayor alluded to some of the tragic circumstances that have, you know, resulted from denial of care. As we talked about in our last episode. The Associated Press has reported on this. I mean, the Supreme Court will be signing off on the suffering, the torture of women in emergency rooms. And as Prelogar repeatedly underscored, nothing in I’m taller, you know, for better or worse. I mean obviously for worse in our view touches Idaho’s ability to prohibit abortion in almost all circumstances. The fight against that has to happen in lots of other venues, but it has nothing to do with them. EMTALA and emergency rooms all the federal government is trying to do here is to guarantee, you know, as it is able to do when it spends money all the time, it can impose conditions that track federal policy preferences to the receipt of those funds. So when federal money goes to hospitals, the federal government gets to say, you need to provide basic care. And one of the forms of basic care may be abortions, but it’s a tiny percentage of pregnancies that are ever going to result in presenting in an emergency room. And this conflict arising. And just like the the maximalism and the cruelty of insisting on the prerogative of a state to deny care to women under these circumstances is kind of defies belief and does feel like not only legally wildly wrong on preemption principles, but also like political malpractice, given how savagely cruel it looks. If I think if the Democrats figure out how to actually talk to the public about what the Republican appointed justices and these states are trying to.

 

Melissa Murray Do, so to that point, if the Biden administration and the Democrats do not talk about this case and aren’t playing some of these clips from oral argument on the regular every day until November, and they don’t connect this carnage that’s happening all over the country to this court. What an unforced error. Like, seriously, if you are listening in the Biden administration, like, why aren’t you making this an issue run on the court?

 

Leah Litman I just like to note that me, a simple law professor without any real tech savviness, was able to put together a simple TikTok of this exchange between Justice Sotomayor and the lawyer for Idaho, in which the lawyer for Idaho conceded that yes, they were attempting to prohibit abortions that would be necessary to save a woman’s organs. And if I can do it, you can do it. I got so frustrated because the day of that argument was also the day of the indictment in the Arizona false electors cases, and I was supposed to be on some kind of like, news shows to talk about EMTALA and got bumped because of the Arizona.

 

Melissa Murray For oath breaking Insurrectionists.

 

Leah Litman And I was just like, oh, okay. Does this mean we’re like, not discussing the, like, torture of women? And.

 

Melissa Murray No.

 

Leah Litman I guess that that’s that just.

 

Melissa Murray No.

 

Leah Litman Okay. Okay, fine.

 

Kate Shaw Cutting room floor. Yeah, that is immensely frustrating. And it’s not that anti-democratic moves and responses to them are not important, but the idea that you should just.

 

Melissa Murray This is anti democratic too.

 

Leah Litman They are related.

 

Melissa Murray This is anti-democratic too. EMTALA is a federal law passed by those who represent the majority of this country. And it’s supposed to supersede the state law that was passed by some gerrymandered Idaho legislature.

 

Leah Litman Denying health care to one class of citizens you would think implicates constitutional principles like the Equal Protection Clause, and also what it means to be.

 

Melissa Murray Equal protection clause. Do we have that? We don’t. That’s our safeword. We forgot that was our constitutional safe word that we never use that frequently so that when we do use it, you know, we’ve been taken hostage.

 

Leah Litman Okay, okay. Fair point.

 

Kate Shaw I had a student make a very nice point when we were talking about Dobbs, which is, you know, there’s that couple sentences, it says, like, there’s no equal protection issue to see here. So then why even make the point?

 

Melissa Murray Yeah.

 

Kate Shaw Yeah. Not without political power. Why does it matter that women are political power if there’s nothing to see here from the perspective of equal protection? I thought it was a very well made point, and I’m not sure what Sam Alito would say in response.

 

Leah Litman He’d say, fuck you.

 

Melissa Murray Why isn’t the bar defending me from the student?

 

Leah Litman Exactly. Exactly. I’m being viciously attacked.

 

Melissa Murray By a by a Penn Law student. Why? Why are you not defending us?

 

Leah Litman Order, I demand order!

 

Melissa Murray I mean, he is getting to be a little bit like that character in South Park, right?

 

Leah Litman Cartman.

 

Melissa Murray You will respect my authority.

 

Leah Litman Yes.

 

Melissa Murray Samuel A. Cartman.

 

Melissa Murray [AD]

 

Kate Shaw So that argument contained more than enough rage fodder for an entire term. I mean, we really could go on, but don’t worry, we’re just getting started. Because the court also heard arguments the next day in the Trump immunity case, during which it became clear that, honestly, like the brain worms that have already entirely consumed Sam Alito’s brain have now consumed the brains of at least the male Republican appointees. I mean, that’s, I thought, the big and really scary one of the big and really scary takeaways, which is that to the extent that we thought that there was some shred of sanity, at least in the minds of the Chief Justice and Brett Kavanaugh, I no longer think that. And that is I mean, Leah and Melissa are shaking their head.

 

Melissa Murray Well you’ve lost Kate Shaw fellas.

 

Kate Shaw I’ve been slow to realize this, and yet I that was one of the really terrifying takeaways from that argument. But it seems as though those justices would like to literally restore the monarchy in the name. Wait for it of the Constitution drafted to govern a nation founded to resist a tyrannical monarch. So please, please make it make sense. I’ve been trying for the last two days. Still not happening. I mean, I.

 

Melissa Murray Had a post full monarchy, but only one. Not with Prince Harry and Meghan Markle. Like that’s the only. I mean, I’m not here for this Donald J. Trump monarchy.

 

Leah Litman Well, I think what you might be failing to appreciate, Kate, is that the real danger of monarchy happens when Joe Biden tries to forgive student loans.

 

Melissa Murray Yes.

 

Leah Litman Right.

 

Melissa Murray That’s the Tyranny.

 

Leah Litman That’s the risk of authoritarianism and tyranny and monarchies. But when Donald Trump might, I don’t know, orchestrate an attempted coup that is not a monarchy. That is like preserving the integrity of elections during the post-Civil War South.

 

Kate Shaw I see now.

 

Leah Litman Nailed it.

 

Kate Shaw This sounds like a ridiculous caricature and all of that.

 

Melissa Murray No, it’s actually like.

 

Leah Litman That was me laughing Sam Alito.

 

Melissa Murray So anyway, just so to lay the scene, a reminder for listeners, we are talking about the federal election interference case arising out of January 6th. Donald Trump was charged with obstructing an official proceeding and conspiring to do the same, also conspiring to defraud the United States and violating a reconstruction era law that prohibits interfering with civil rights. The factual basis for these charges were his months long efforts alleged to overturn the results of a validly conducted election, including by allegedly assembling many slates of fraudulent electors that would throw out lawfully cast votes by substituting their prerogatives for those of the validly elected electors. And that’s basically the crux of Jack Smith’s January 6th election interference case. And Donald Trump, of course, has asserted an immunity defense, saying that as a former president, he is completely immune from criminal liability for any of these actions undertaken while he was president. And just going to say these oral arguments were wild AF, right? So very coup forward with a bunch of authoritarian entrepreneurs jumping in on the bench to make this just, I don’t know, a very dictatorial forward kind of intervention. So there are two separate questions in the case, and it’s worthwhile to kind of disaggregate them. The first question is about the merits here, whether Donald Trump is immune from criminal liability, and also when presidents more generally are immune for violations of criminal law. That’s one question. The other question is really more practical. And about this case specifically, like what is the court going to do with this case and specifically the lower court opinion? Here are the opinion of the DC circuit. Will it simply affirm this decision and allow the trial for the January 6th election interference charges to proceed, or will they alternatively send this case back to the lower court judge here, Tanya Chacon, who’s the DC Trial Court judge for additional legal determinations about what can properly be in the scope of this case, which of course would lead to additional delays here, probably even delaying this case so that it is not actually going to trial before the election. So again, Jack Smith and the government are arguing that Donald Trump engaged in election interference, spreading lies, that the election was fraudulent, trying to deploy the Department of Justice to investigate this alleged election fraud, which didn’t happen, and creating slates of fake electors to displace the validly elected electors in the Electoral College certification. None of this, Smith argues, are even plausibly official actions undertaken in the scope of presidential duties. But Trump is arguing that all of these efforts were undertaken in the service of ensuring the integrity of the election and preventing election fraud, which he argues was widespread and rampant. All of this, he argues, is therefore in the scope of his duties as president.

 

Kate Shaw Although, as we will get into when pressed about. Specific aspects of the indictment. His lawyer, importantly, did seem to concede that some of that actually was private and non-official conduct. But we all got there. But just to do a little bit more kind of table setting, I think here is where we think the court is headed on the questions that Melissa just outlined. So first, on the merits, the Supreme Court is not likely to adopt a maximalist theory that if the president does it, it’s necessarily an official act and official acts are entitled to absolute immunity.

 

Melissa Murray That’s the captain obvious line of reasoning because, duh.

 

Kate Shaw I mean, at this point, I wouldn’t put anything past them. So I’m not saying we should be grateful for that breadcrumb, but I’m just saying it’s so obvious it shouldn’t warrant stating. And yet I think in the universe we are in, it somehow does. So I don’t think they’re going to do that, but they are also sort of other end of the spectrum, pretty clearly not going to just straight up affirm the court of Appeals opinion based on one understanding of that opinion, which is that, you know, if the president does something that violates the criminal law that is not entitled to immunity after the president leaves office. So what that means is, you know, there’s a lot of space in between those two outcomes. And I think there is a good possibility that the Supreme Court vacates and remand the D.C. circuit opinion and requires the lower courts to make some additional determinations, such as whether the allegations involve official acts that might be entitled to immunity. So that would effectively immunize Trump in an important respect, which would be it would delay the case by requiring further proceedings and ensuring that the case does not get to a jury before the November 2024 election. Beyond that, beyond Donald Trump and this case, the implications of some version of that finding, to my mind, are beyond chilling. Because if the court does that, it will be saying depends on how it’s written, but it will likely be saying that some or all official presidential acts which still would need to be defined, but maybe including the most violent and undemocratic like ordering assassinations and coups, are entitled to immunity from criminal prosecution. So just let that sink in.

 

Leah Litman And I want to try to explain first here. Probably get into it elsewhere as well. Why that is completely unnecessary. That is why the court does not have to send the case back down to the lower court. And why the court doesn’t even need to use this case to establish some general legal test for what kinds of official acts might be entitled to immunity. Instead, it’s just doing that as political theater, like it’s not needed to decide this case. It’s not good institutional practice. It departs from what they do in a bunch of other cases. So again, just going to try to explain this under no sensible understanding of official acts that might be entitled to immunity. Would this indictment concerned such official acts, like the indictment describes an incumbent unlawfully trying to retain power and refusing to acknowledge the results of a validly conducted election? So during the argument, you know, there were exchanges that disputed, like what the precise legal standard is for determining what an official act is like. Does it mean, you know, something has to reasonably within the scope of a president’s official duties? Does it have to be plausibly within the scope of the president’s official duties? And the point is that just doesn’t matter here. It’s not outcome dispositive under no sensible understanding. Does this indictment concern official acts? And Justice Jackson made that clear in this exchange with the lawyer for the special counsel.

 

Clip All right. And if we if we invite, you know, if we see the question presented as broader than that, and we do say, let’s engage in the core, official versus not core and try to figure out the line. It it is this the right vehicle to hammer out that test? I mean, I understood, that the most, if not all, but most of the allegations here, there’s really no plausible argument that they would fall into core versus not such that they are immune.

 

Clip We don’t think there are any core acts that have been alleged in the indictments. That would be off limits as a matter of article two.

 

Kate Shaw And Justice Sotomayor made the point as well. So how in the world, she’s asking, is it plausible that the president’s creation of a fraudulent slate of electors could be understood as an official act? Let’s play that clip.

 

Clip So apply it to the allegations here. What is plausible about the president insisting and creating a, a fraudulent slate of electoral candidates, assuming you accept the facts of the complaint on their face? Is that plausible that that would be within his right to do?

 

Clip Absolutely. Your Honor, that we have.

 

Clip Even knowing that the slate is fake, knowing that the slate is fake, that they weren’t actually elected, that they weren’t certified by the state. He knows all those things.

 

Clip The indictment itself alleges I dispute that characterization. The indictment affixes the word label to the so-called fraudulent elections pictures the word fraudulent. But that’s a complete mischaracterization.

 

Kate Shaw And we’re not going to play the answer because it would just truly make my head explode. But Trump’s lawyer here, in response to Sotomayor, tries to suggest that Trump’s fraudulent electors efforts were somehow analogous to President Ulysses S Grant’s efforts to prevent disenfranchisement in the reconstruction South. Because that is how this court.

 

Melissa Murray Racial justice this is racial justice.

 

Leah Litman Exactly.

 

Kate Shaw That. That’s what Trump was engaging in to racial justice.

 

Melissa Murray Like disenfranchizing black people is necessary to remedy the historic disenfranchisement of black people back in the 1800s. Checks out.

 

Kate Shaw That’s how you make it make sense.

 

Melissa Murray Yes, checks out.

 

Leah Litman This is literally equating the participants in the January 6th attempted insurrection with black people who were disenfranchized during reconstruction. Like, that is the analogy. And I’m just going to say look a little bit more. This court often does not decide legal questions that aren’t necessary to the resolution of an actual case. You know, think back to the independent state legislature case, Moore versus Harper. There, they declined to announce what precise legal standard would govern federal courts review of state court interpretations of state law, because they just said it’s not necessary to decide this case, given the arguments that were presented to us, or think back to another executive power case, this one involving executive privilege. Nixon versus United States. There, the court said, we don’t have to opine on what the legal standard that determines executive privilege in all cases is. Instead, we just note here are some general principles to guide the inquiry. And it’s clear on the facts of the case that the president cannot quash this subpoena. And that’s all they have to do here. You know, like whatever the legal standard is attempting to overturn the results of a valid election, not an official act of a president, not hard.

 

Melissa Murray I’m also just going to note all of these questions. Executive immunity, executive privilege. None of these are actually explicit in the text of the Constitution. So I would think following Dobbs, that must mean that they don’t exist.

 

Kate Shaw Because Alito, you know, ostentatiously says abortion is not there’s no reference to abortion in the Constitution.

 

Melissa Murray Also not referenced here.

 

Kate Shaw Also true about executive privilege.

 

Leah Litman The constitutions silence swaddles men, though in a very comfortable blanket

 

Melissa Murray Different.

 

Leah Litman Of whatever rights and protections they want.

 

Kate Shaw If we ever have a woman president, though, how does this all cash out?

 

Leah Litman Well, she probably be a Democrat, and Democrats are not allowed to exercise political power.

 

Melissa Murray So that’s that’s how we’ll deal with that when it’s a woman. Is she really president? Probably not. Her husband is probably president for her. Yeah.

 

Kate Shaw There was this moment, Thomas’s first question asked about where in the Constitution this immunity comes from. And obviously I am like a naive fool because for just a split second I was like, Is Thomas in play here? And then the rest of the first 30 seconds of the argument.

 

Melissa Murray Okay. You sweet summer child.

 

Kate Shaw Because he didn’t say, where is it? Of course he’s right. It’s not. I mean, so the lawyer says, yeah, it’s the executive vesting clause because they just decide that the somehow the executive power being vested in the president means a million things that are not explicitly in the Constitution. Unfettered removal power, executive privilege.

 

Melissa Murray So weird that liberty could not also be extravagantly construed to allow women to control their bodies.

 

Kate Shaw Even just have a few. Just even having some substance. So no. So liberty doesn’t have any content. The Ninth.

 

Melissa Murray The 9th Amendment is the last resort of fools.

 

Kate Shaw The Executive power contains multitudes. Yeah, right.

 

Melissa Murray Anyway, another thing that’s not clear here, in addition to where is executive immunity in the Constitution, is whether Donald Trump was actually arguing for this kind of surgical skinny immunity that only applies on an allegation by allegation basis. And it was left to Justice Jackson to make clear that it wasn’t obvious that the defendant was even raising this aspect of immunity. So let’s roll that clip.

 

Clip But I took the petitioner’s argument in this case, not to be inviting us to engage in that kind of analysis. I thought he was arguing that all official acts get immunity. And so I didn’t understand us to be, having to drill down on which official acts do. And so my question is, why isn’t it enough? For the purposes of this case, given what the petitioner has argued, to just answer the question of whether all official acts get immunity.

 

Clip That that is enough. And if the court answers that question the way that the government has submitted that resolves the case.

 

Melissa Murray Silly Ketanji, what is the fact that a litigant failed to actually a certain argument ever stopped the conservative justices from stepping in to lawyer the case on behalf of their. Preferred litigant. Silly. Silly. Silly.

 

Kate Shaw So in a very important colloquy that we alluded to a couple of minutes ago, Justice Barrett got a concession from Trump’s lawyer that some allegations in the complaint are definitely not official acts. And this was really a striking moment because it was, in some ways the moment when we not only the concession or concessions that it elicited, but you actually had Barrett reading the allegations from Jack Smith’s complaint in a way that really, I thought, felt like it resonated in the courtroom and on the audio feed. I wasn’t actually in the courtroom. And I thought that was significant.

 

Melissa Murray This was like when he made that point in the appellate argument below about Seal Team Six, and he was like, well, yes, we’d be fine. And he unless he was impeached for it. I mean, he yeah. I don’t know if this was like the best outing for him either.

 

Leah Litman Oh, but it didn’t have to go right again. The bar wasn’t held for counsel. Yeah, right. And and also, you know, Kate, you noted this was kind of a important exchange for several reasons. This was also a moment where, to me, it was clear that whatever brain worms have infected the male Republican appointees have not yet completely devoured Justice Barrett’s frontal lobe.

 

Melissa Murray Nope nope nope nope nope. She keeps playing in our faces. And I just want to remind you that’s true, because she we thought is a good question. She was not, like, sucked into the whole brain worm. And then she was. So yeah, she does this stuff in oral argument like she’s unpredictable. She’s in the wind. Do not count on her.

 

Leah Litman Yes. No, that that’s very fair. And I think like just gesturing back toward the Ayatollah’s case, like, if I had to bet in that case, she will probably go with, like, a gaslighting approach like Justice Kavanaugh and potentially say, well, I don’t think the Idaho law does what it actually says and is doing on the ground and therefore concluded us and preempted. And it’s very possible she’ll do something similar here.

 

Melissa Murray She’ll also write a coda to her concurrence, in which she chides the three women and dissent about their tone. Like about the tone like, why are you so angry about these women dying? You should smile more.

 

Leah Litman The real danger to our constitutional democracy is not missing women’s bodily organs or allowing, you know, presidents to do coups and not face any accountability. It is instead of criticizing justices for allowing those things.

 

Kate Shaw Yeah, I honestly, I will be very curious to see if she writes something in and along those lines or any other lines, because as we have noted previously, her silence has been deafening. In particular, in Dobbs, she doesn’t write separately. She cast the deciding vote to overrule Roe, and she did write separately to chastise her female colleagues in the Colorado disqualification case. But she hasn’t said one word in any of these cases. I mean, there’s not there’s just been Dobbs, but and any of the abortion cases, and it matters a lot. I think what she thinks.

 

Melissa Murray And I think it especially matters in EMTALA because it has been reported that she’s actually had two miscarriages and a standard practice for miscarriage management is an abortion. So it would be interesting if she were to intervene here to make whatever distinctions she wants to between elective abortions and medically necessary abortions. But again, Kate, I just I, I think she does this and she likes to troll us in oral argument and then she goes off on these frolics with her conservative friends.

 

Kate Shaw Yeah. So we should we’re putting a marker down now. She seemed somewhat potentially in play in EMTALA But I think that Leah, you’re saying and I think this is right, that we shouldn’t count on that.

 

Melissa Murray I’m saying it too.

 

Kate Shaw No. No. But you’re saying but that. But you’re saying that also with immunity. I feel more confident.

 

Melissa Murray I’m just saying as a blanket, do not count on her. Kind of generally like, just as a general matter do not count on her?

 

Kate Shaw Yeah, I think that that’s fair.

 

Leah Litman Until proven otherwise.

 

Kate Shaw Right.

 

Leah Litman Until.

 

Melissa Murray Happy to be wrong Justice Barrett.

 

Leah Litman Yeah.

 

Kate Shaw Yeah. Please prove Melissa wrong.

 

Leah Litman So maybe we can bring it back to the immunity arguments. Yeah. The exchange between Justice Barrett and Trump’s lawyer matters. Because by eliciting the concession that several of the allegations, many of the allegations in the indictment do not concern official acts that would be entitled to immunity. That would mean that the trial can and should be allowed to proceed, because Trump’s lawyer is conceding that these allegations do not concern actions to which Trump is entitled to immunity. So let the case proceed. Right. If Trump’s lawyer is saying conceded no immunity here, obviously that can’t happen. Because that would.

 

Melissa Murray Be democracy forward. Yeah. Accountability forward.

 

Leah Litman Obviously that can happen, right? Democracy forward. It would interfere with their ability, Sam and Clarence’s ability to retire after the 2024 election. Under a King Trump, it would interfere with Donald Trump’s ability to become king. But it was, I think, one of the more important moments of the proceedings. You know, Justice Barrett kind of also asked about the possibility that special counsel Jack Smith would or could drop the allegedly official acts from the proceedings, which could allow the trial to proceed just on the conceded, the private or non-official act.

 

Melissa Murray My colleague and coauthor, Andrew Weisman has talked extensively about this, like certain charges can be dropped out to streamline this. Case so that it can go to trial. But again, a lot depends on the court.

 

Leah Litman Yeah, because you would need a fifth vote right to to bless that and assuming you had it. That is one way this case could at least proceed. Even if I remain shook about what, they might still insulate under the guise of official acts. Yeah. Yeah.

 

Kate Shaw Yeah, that was I thought that was one potentially promising path that the argument gesture toward. But for reasons I’m not sure I totally understand, maybe I kind of misread this exchange, but Dreeben, the lawyer for Jack Smith’s team for the federal government, seemed kind of to be resisting this because he said, well, yeah, I mean, even if a court said that some of these were official acts, that couldn’t be the basis for criminal liability, we would proceed on the rest of the non-official conduct. But, official acts evidence would still be relevant to motive and intent. And, you know, so we wouldn’t want to totally swear off relying in some form on that other evidence. And I just I don’t know that the special counsel’s team wants to take that position, because it would seem then, that sorting out how purported official acts could be used in an evidentiary way would also require delay and briefing to work out details on things like, you know, evidence, admission and instructions to the jury and things like that. And so I that does not seem to me to be a path to an actual trial, even if the court were inclined to allow some really slimmed down version of these allegations that are clearly not official to proceed.

 

Melissa Murray [AD]

 

Kate Shaw All of this. Just remind everyone of the kind of timing background here. The delay where we are on the clock is a problem of Scotus own making. They declined to take the case up before the D.C. circuit ruled. That was back in December. It is now so crystal clear. They were always more so. You were saying this from the beginning. They were always going to take this case. They always wanted to have the final word on it. There was never a chance they were going to let the D.C. circuit opinion stand. And it just looks absolutely unconscionable that knowing that, then I’m sure they did. They did not take the case up. So we would be in, you know, February with these arguments as opposed to the end of April with these arguments and having waited for the D.C. circuit to rule, it’s, you know, doubly indefensible for them to have said this crazy seven week briefing schedule so that we are only now having this conversation at the end of April.

 

Melissa Murray And it wasn’t just that it seemed apparent that all of their craziness around this case seemed intent on delaying the prospect of a trial here. It also seemed, as the course of this oral argument unfolded, that they were also trying to inject some other questions into the case. So, you know, for more layers. You know, we had Brett Kavanaugh suggesting the possibility of a clear statement roll. So, you know, maybe a rule that there are some zones of absolute immunity for the president, but also even in circumstances where there isn’t absolute immunity, maybe generally applicable laws don’t apply to the president, absent some clear statement from Congress that they are intended to. And as Katie Jay rightly pointed out, the question wasn’t part of the appeal. And since this appeal is interlocutory, the only issue really is about immunity, not about these other sort of ancillary questions that the court kept trying to interject. So it seems here that they might also go off the trail to announce a rule that official acts are immune, but courts need to conduct some kind of inquiry that looks to both the act and the intent to determine whether the challenged conduct was actually official. And there the court could wind up using some kind of objective test. Probably not, but rather a more subjective test that will depend on whether the president is a man or a Republican or, you know, all other things.

 

Kate Shaw Those are objective facts, Melissa.

 

Melissa Murray But they’re subjective preferences. But again, it was just a lot here, given they had already sort of shaped the question presented to favor Donald Trump in a lot of ways. And then they kept layering on what other questions were at issue here. And yeah, I mean, I just felt like poor Justice Jackson was just like, seriously, we’re doing this. I guess we’re doing this.

 

Leah Litman Yeah, I realize this episode is going to be long, but there is just a lot to say about how this argument unfolded. And I think it’s important to understand, like how the justices were actually engaging with this, including some of what came out on the merits issue, when and whether presidents are entitled to immunity for violating criminal laws. So in some respects, I found this entire case to be potentially amazing performance art about how to normalize authoritarianism like we are now debating. Right. And the Supreme Court justices are acting like it is a serious question whether presidents can be immune for violating criminal laws, including for assassinating political rivals.

 

Melissa Murray Seriously normalizing authoritarianism.

 

Leah Litman And you might think that entertaining and engaging these questions and acting like this is, you know, on a terrain at which we should be having this legal debate, you might think that this could be how democracies die. You could dictatorships arise. So let’s just tick through some of the aspects of the argument that were, I think, pretty explicit about this. So one was Trump’s lawyers opening argument, which we’re not going to play. I floated the possibility of prosecuting Joe Biden for his policies at the border.

 

Kate Shaw And setting aside what possible criminal law could underlie such a prosecution. That was like one of the many moments in the argument that took my breath away, because it was such an ominous threat, like, we will get back in power, grant us immunity now, or we will prosecute Joe Biden for his border policies and anything else we can manufacture. Like it was almost explicit.

 

Melissa Murray I mean, also in the context of the impeachment of Secretary Mayorkas, all of these efforts to impeach Secretary and make your case. I mean, it wasn’t an idle threat. They’re already weaponizing existing procedures to do that.

 

Leah Litman And the justices, I thought were normalizing this by just banding about the prospect that, of course, incoming presidents are going to prosecute their political rivals, as if that should be our expectation. And Justice Sotomayor brought up the hypothetical that arose in the DC circuit about a president assassinating a political rival. And same response. So let’s play that clip here.

 

Clip Now, I think what and your, answer, below, I’m going to give you a chance to say, if you stay by it, if the president decides that his rival is a corrupt person and he orders the military. Or order someone to assassinate him. Is that within his official acts that for which he can get immunity?

 

Clip It would depend on the hypothetical that we can see. That could well be an official.

 

Melissa Murray You would think he would have a better answer since January 9th for this question.

 

Kate Shaw Nope. This is the answer.

 

Leah Litman Why bother? Right?

 

Melissa Murray Project 2025.

 

Leah Litman This is their position. And Justice Kagan decided to, you know, vary the hypo a little bit. And this is what she came up with.

 

Clip How about if a president, orders the military to stage a coup?

 

Clip I think that, as the Chief Justice pointed out earlier, where there is a whole series of, you know, sort of guidelines against that, so to speak, like the UCMJ prohibits the military from following a plainly unlawful act. If one adopted Justice Alito’s task, that would fall outside. Now, if one adopts, for example, the Fitzgerald test that we advanced, that may well be an official action. He would have to be, as I’ll say in response to all these kinds of hypotheticals, has to be impeached and convicted before he can be criminally prosecuted. But I emphasize to the court.

 

Clip Well, he’s gone, let’s say this president who ordered the military to stage a coup, he’s no longer president. He wasn’t impeached. He couldn’t be impeached. But but he ordered the military to stage a coup. And you’re saying that’s an official act?

 

Clip I think it would be. That’s immune. I think it would depend on the circumstances, whether it was an official act. I mean, that.

 

Clip Answer sounds to me as though it’s like, yeah, under my test, it’s an official act, but that sure sounds bad, doesn’t it?

 

Melissa Murray Still the same answer.

 

Leah Litman Sure sounds bad, doesn’t it? Light touch. But but yes.

 

Melissa Murray I mean, it wasn’t even just that. The justices seemed to be normalizing the prospect of the president using executive power to do all of these things in the very near future. Some justices seem to really lean into the idea that, as a matter of executive power in good government, we have routinely authorized the launching of various coups. And indeed, the court’s leading historian, Justice Clarence Thomas, tried to suggest that presidents orchestrating coups has been a long standing part of the history and tradition of this country. So let’s hear that clip.

 

Clip Over a and not so distant past. The presidents or certain presidents have engaged in, various, activity coups or, operations like Operation Mongoose when I was a teenager. And yet there were no prosecutions. Why, if if what you’re saying is right, it would seem that that would have been ripe for, criminal prosecution of someone.

 

Melissa Murray And just for our listeners, Operation Mongoose, to which Justice Thomas referred, was the unsuccessful 1961 effort by the Kennedy administration to depose Fidel Castro in Cuba. And as Justice Thomas notes, no one prosecuted JFK for this failed coup attempt, although it is perhaps worth noting that maybe that prosecution did not arise, in part because John F Kennedy was tragically assassinated in 1963. So history.

 

Kate Shaw Can I just say one thing in addition to just like the obvious efforts to normalize, you know, the prospect of prosecution of political rivals, you know, political violence like all of this, it just felt to me like there was an obvious answer to all of these bad faith examples. So not just the example of JFK, but George W Bush and the Iraq war, Obama and drones, this ridiculous Biden and border policies. There were a bunch of hypos or a bunch of questions along the lines of, well, won’t we be opening the door to the prosecution of every president for all this kind of conduct that we’ve seen historically? And the answer is obviously, to me at least, that some of that could, in theory, have been criminally prosecuted because there is no rule unless this court makes one up, that you can’t ever prosecute a former president. But even in the absence of such a prohibition, there have not been prosecutions of former presidents for this kind of conduct. And that’s because there are many checks in place. And those checks means that no one is cavalierly prosecuting former presidents. So history, I think, entirely refutes this complete gangster logic of like, everyone’s going to prosecute their predecessors unless we court put a stop to it, because the court did nothing to put a stop to those non-prosecution episodes. And it worked just fine. So the court’s like insistence that it is this savior or protector of the president and former presidents is in addition to the many, many other problems with the court’s position, I think, just ridiculous in light of the history, which, again, I think does exactly the opposite work of what these justices think it does.

 

Leah Litman Can I add one thing to that, which is if they truly think that there will just be this endless cycle of constant attempted prosecutions of outgoing presidents, then there’s no need to opine in this case about what the exact legal standard is for presidential immunity, because that next case is going to be at your door very shortly.

 

Kate Shaw Yes. Great point. And yet I think it’s lost on them. And then one other thing in terms of the the justices completely manufactured parade of horribles. If we allow this prosecution to proceed, every future president is going to be subject to prosecution immediately upon leaving office. I mean, it was so outrageous to observe the court’s completely one sided sensitivity to questions of risk and consequences. Right. Like they focused only on these manufactured risks of the prosecution of ex-presidents. The burdens that those things would impose on presidents and ex-presidents, and also the possibility of, like tit for tat prosecutions, but seem to have no. Concern about the risks posed by a no criminal prosecution regime. What that would embolden on the part of sitting presidents, including the facts of this very case. And it was so striking how disinterested the conservatives, apart from Justice Barrett, were in talking about the specific facts of this case. So Alito like refusing like expressly saying we’re not going to talk about the facts of this case. Let’s play that clip here.

 

Clip You know, I’m as I said, I’m not discussing that particular facts of this case, but it applies to any, fraud that interferes seriously with any government operation. Right.

 

Kate Shaw Kavanaugh. Similar approach.

 

Clip Like Justice Gorsuch. I’m not focused on the here and now of this case. I’m very concerned about the future.

 

Kate Shaw Gorsuch, too.

 

Clip And I guess I’m wondering and I’m not concerned about this case so much as future ones too.

 

Melissa Murray Also interesting was Justice Alito refusing to talk about the actual facts of this case, but also perhaps suggesting that in the past, we have offered presidents broad discretion because it’s very easy as president to make a booboo, or, if you will, cuckoo and just inadvertently slip into authoritarianism by inadvertently orchestrating a coup. So let’s hear that clip.

 

Clip Council. Dreeben. Do you really? I mean, presidents have to make a lot of tough decisions about enforcing the law, and they have to make decisions about questions that are unsettled, and they have to make decisions based on the information that’s available directly. Did I understand you to say, well, you know, if he makes a mistake, he makes a mistake. He’s subject to the criminal laws just like anybody else. You don’t think he’s in a special a peculiarly precarious position.

 

Melissa Murray To continue on that thrust, it did seem like the liberal justices were very concerned with the specifics of this case and the prospect of immunizing this particular defendant, while the conservatives seemed more concerned with the prospect of hamstringing any future president by putting criminal liability on the table. Weirdly, none of the conservatives relied on the history and tradition of this country to note that until Donald Trump, no other president had committed such egregious acts that would make the prospect of criminal liability a real one. And the liberal justices who also studied history and maybe read history more closely, noted that Gerald Ford’s pardon of Nixon for egregious acts, but probably not for orchestrating an actual coup, would suggest that liability for crimes has always been on the table, otherwise a presidential pardon would not have been necessary.

 

Leah Litman It was just as a treat, right? Here’s a little pardon as a treat a part do you any good not necessary.

 

Melissa Murray Like a swag bag.

 

Kate Shaw Sometimes you give, you give like a little like crystal thank you for your service to your predecessor.

 

Melissa Murray Your disgraced predecessor. A swag bag that includes a presidential pardon for all crimes.

 

Kate Shaw Yeah, but Kavanaugh, of course, took the opportunity to again draw exactly the opposite lesson from that episode. Then it actually lends itself to which is he sort of observes that everyone thinks it’s a good idea that Ford pardoned Nixon, which, no, they actually don’t. But but then he went on to suggest.

 

Leah Litman What are your fucking dinner parties and cocktail parties like? Who are you talking to?

 

Kate Shaw I wish I had seen Dreeben’s face during that exchange because I couldn’t. I was just listening. But he didn’t even ask a question. He said, I think we’re all in agreement. That was that was one of the best things a president ever did.

 

Melissa Murray Just needed to move on. So why not.

 

Kate Shaw Exactly. Now when you can say, like some people think that was actually good for the health of a democracy, but we all are huge fans of that party. Again, his dinner party companions, I don’t want to know.

 

Leah Litman Like every year on the day that Ford pardoned Nixon is actually a national holiday where we all commemorate like what a great act of justice it was.

 

Kate Shaw But in any event. So he then, after that claim went on to suggest that if Trump wins in this case, then a future Ford wouldn’t do his righteous pardon because he’d be afraid he’d be prosecuted for it. Like again. What?

 

Leah Litman If everyone loves it they’re not going to prosecute you for it.

 

Kate Shaw Boom. But, you know, really, truly the opposite of the actual relevance of the four pardoned for this case, but Kavanaugh was always good for one of those.

 

Melissa Murray Do you think, like they go back to conference and they’re just like, maybe next time, just like, keep it, keep it to yourself. Like not everything needs to be said.

 

Leah Litman No no no no no. Neil totally high fived him for that and was like, great point Brett. Great point.

 

Kate Shaw Please invite your next Pardon Day celebration. I’ve been angling for an invite since high school, and maybe now I finally have my chance.

 

Leah Litman Yeah, but continuing on with the brain worms. So one of the other, male Republican appointees, Sam Alito, floated a another real Galaxy brand proposition that immunity from criminal liability is actually necessary to ensure the peaceful transition of presidential power. I’m sorry, I’m laughing, but, here is that clip.

 

Clip All right, let me end with just a question about. What is required for the functioning of a stable, democratic society, which is something that we all want. I’m sure you would agree with me that a stable democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully if that candidate is the incumbent. Of course. All right. Now, if a an incumbent who loses a very close, hotly contested election knows that a real possibility, after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent. Will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?

 

Leah Litman I just want to try to explain why this is ludicrous. That is this fucking KSM. Like you had a president attempt to interfere with a peaceful transition of power. And the question is, are you cool with that? I don’t understand why he is concerned about the incentives for some future hypothetical presidents when you are faced with these facts right now, this scheme and this person who could be president again, like the idea that Donald Trump would not have engaged in this monthslong effort if he had been told, great news, Donald, if you do this, you’re not going to face criminal liability is deranged. It is so delulu I want to call a wellness check on Sam Alito. Like we’ve reached that point. I this this might be one of his best performances at an oral argument, because.

 

Kate Shaw I think we need a new name, but it’s honestly like it defies names. It wasn’t. It’s not just trolling. It is. It is an exponentially crazy.

 

Leah Litman DeLuLu Lito. Delulu Lito.

 

Melissa Murray Delito

 

Kate Shaw Dualito

 

Leah Litman DuaLito

 

Kate Shaw DeluLito. That’s good.

 

Leah Litman I don’t know, just. Just floating some. Listeners we do accept suggestions.

 

Kate Shaw We were worked on these for a little while, so. Yeah, but I DeuLito. I’m I think I like it.

 

Leah Litman Thank you. This was such a bad faith proposition, Justice Sotomayor had to issue this rejoinder to him directly.

 

Clip The stable democratic society needs the good faith of its public officials, correct?

 

Clip Absolutely.

 

Clip And that good faith assumes that they will follow the law. Correct.

 

Kate Shaw Doubt it landed. Doubt it landed.

 

Melissa Murray One of the consequences of the court’s post-Covid Syria autumn questioning custom is that the most junior justices get to have the last word in all of these arguments. And Justice Jackson used her pole position as the last questioner to counteract these arguments that immunity is, in fact, very democracy forward. And she chose to focus instead on the risks that a lack of criminal accountability might pose to the prospect of democracy. So let’s hear her.

 

Clip And I would also say, I think and ask you to comment on, you know, presidents are concerned about being investigated, invaded and prosecuted. And it chills to some extent their, you know, ability to do what they want in office. And that’s a concern on one side. But can you comment on the concern about having a president unbounded while in office, a president who knows that he does not have to ultimately, follow the law because there is really nothing more than, say, political accountability in terms of of impeachment. I mean, we have amicus briefs here from Professor Lederman, for example, who says, you know, a president would not be prohibited by statute from perjuring himself under oath about official matters from corruptly altering, destroying, or concealing documents to prevent them from being used in an official proceeding from suborned others to commit perjury, from bribing witnesses or public officials. And he goes on and on and on about the things that a president in office, with the knowledge that they have no criminal accountability, would do. I see that is a concern that is at least equal to the president being worried, so worried about criminal prosecution that he, you know, is a little bit limited in his ability to function. So can you talk about those competing concerns?

 

Clip So, Justice Jackson, I think it would be a sea change to announce a sweeping rule of immunity that no president has had or has needed. I think we have also had a perfectly functioning system that has seen occasional episodes of presidential misconduct. The Nixon era is the paradigmatic one. The indictment in this case alleges another. For the most part, I believe that the legal regime and the constitutional regime that we have works and to alter it poses more risks. Thank you.

 

Kate Shaw And here is her also talking about some possible consequences of Trump’s position.

 

Clip It’s right now the fact that we’re having this debate, because a while she has said that presidents might be prosecuted. Presidents from the beginning of time have understood that that’s a possibility. That might be what has kept this office from turning into the kind of, crime center that I’m envisioning.

 

Melissa Murray Yes. Turning the Oval Office into the border, being, as it were.

 

Leah Litman And it’s like, yes, that is actually their plan.

 

Melissa Murray Yeah. Yep. It’ll be great with a big pole right in the middle of the Resolute Desk. Anyway, sorry, I’ve been watching a lot of The Sopranos. Anyway, some other highlights from this two hour clown show. There was much more evidence that many of the conservative justices are actively longing for that imaginary time when Robert Bork was not a failed Supreme Court nominee, but in fact, the chief justice of the United States. So here’s Donald Trump’s lawyer invoking the great man and again, to a lot of resonant nods from this conservative majority.

 

Clip So why is the president different when the impeachment clause doesn’t say so?

 

Clip Someone very important has made the opposite suggestion as to the president himself, which is Solicitor General Bork, which is reaffirmed in the LLC. Opinions on this where the where solicitor General Bork in 1973. As to the issue, the vice president reviewed the historical materials and he said the sequence is mandatory only adds to the president.

 

Melissa Murray Neil M. Gorsuch also intervened to ask about the 1512 C charges. So those were the charges at issue in Fisher versus United States, which the court had earlier heard. And this question basically focused on whether the theory in this case around immunity was really like saying a president of the United States could be charged with leading a, quote unquote, civil rights protest, as January 6th was. Let’s hear that.

 

Clip Okay, so why couldn’t he be prosecuted for leading a civil rights protest in front of the Capitol, that the delays a vote on a piece of important legislation?

 

Melissa Murray What to say.

 

Leah Litman Again, again. Brain worms just going down the line. You know, the justices, in clips we are not going to play showed a very strange hostility toward prosecutors and the criminal legal system in. General, in this case with the idea that prosecutors are just out there charging every case, abusing criminal defendants, forcing them to stand trials, which, of course, is an intolerable injustice that they never managed to show in other cases, including the until the case argued the day before.

 

Kate Shaw Also, can we just take a beat to talk about Kavanaugh doing a dramatic reading of Scalia’s dissent in Morrison versus Olson? Now, we’re not going to subject you to playing. It’s like a full page of the transcript. But basically, Kavanaugh does this dramatic reading and then seem to basically say, look, Scalia was right in his lone dissent. He was right that having independent prosecutors investigating the president is constitutionally intolerable. And that was a moment, another moment of many in this argument that really made my head explode because one like, as Dreeben patiently noted, Jack Smith was not appointed under the independent counsel statute Scalia was talking about. That statute has lapsed, but maybe more important, on the head exploding front. Right. Brett Kavanaugh was a henchman to Ken Starr, who was probably the best object lesson in some of the good points Scalia made, which was the danger of a vendetta wielding prosecutor. So Kavanaugh, like, does know where of he speaks when we’re talking about the danger of prosecutorial overreach in this context. And Kavanaugh has, at other moments, suggested that he’s had a change of heart about the independent counsel statute. So he wasn’t making news on this front, but it was still so rich to hear him say about the independent counsel statute. Basically, this kind of stuff can be abused and like, trust me, I know I did it.

 

Melissa Murray I was a goon to Ken Star so I know of what I speak.

 

Kate Shaw Exactly. And so we have to announce this rule of absolute immunity. And presidents get to COO with impunity because that’s the price of liberty. It doesn’t even remotely follow. Like we repealed the statute. There’s lots of protections in place that keep this special counsel from even looking constitutionally like the independent counsel. But that’s not enough. We also have to announce this absolute immunity rule.

 

Leah Litman Like if the lesson is that we need to eliminate offices and positions that Brett Kavanaugh abuses. I have some ideas about the Supreme Court. So I just want to put that out there.

 

Melissa Murray I love this point, Kate, because again, if we’re going to start invoking Justice Scalia’s greatest hits, and I think this dissent and Morrison and Olson is a banger the most.

 

Kate Shaw It’s a bop, as the kids would say.

 

Melissa Murray It is a bop. And the most evocative line in that bop is when Justice Scalia notes that this wolf comes as a wolf. Right. And here we have a former president running for president who says that his next term is going to be one long, four year, grievance fueled use of executive power to prosecute my enemies. And Brett Kavanaugh is like, you know, Justice Scalia might have been right. Yes, bitch. He might have been right. He might have been right. I mean, and again, to paraphrase Justice Scalia, it takes real cheek to invoke Morrison versus Olson for this proposition. So, yeah, I got nothing for this guy. Pay him in dust.

 

Kate Shaw No, Donald Trump is not dressed. And as a grandmother here like he is not saying like, oh.

 

Leah Litman I’ll be nice the next time around.

 

Kate Shaw Right.

 

Kate Shaw No he is.

 

Leah Litman I’ve learned my lesson, Susan.

 

Kate Shaw Exactly. You know, he is saying I want to do all the things I was constrained by these, like, you know, rule of law types around me from doing in my first term.

 

Melissa Murray I’m going to get a better attorney general, one who doesn’t give a fuck about the law.

 

Kate Shaw And other high ranking officials and, you know, places like the military, potentially, and the white House. And I am going to go into office with this Supreme Court, having blessed a legal rule that says, because they explicitly talked about this, that you can’t be prosecuted for cooking and assassinating, like that’s what the stakes are. I don’t think we’re being remotely histrionic when we say like, this is genuinely terrifying, but that’s what we’re facing.

 

Leah Litman Not going to be histrionic if they take our uteruses from us. But you know, Kate, you’re making some good points about why the reading of the Scalia dissent, you know, might not have been necessary. A silver lining take is that it did give me confidence that Brett Kavanaugh knows how to read. So holding out hope for the future.

 

Kate Shaw Plausable that they commit the descent to memory and training school. So it might have just, like.

 

Leah Litman Gave me hope.

 

Melissa Murray Just like the chip in your brain that plays nothing but Scalia bops.

 

Kate Shaw Oh yeah, or just this dissent, because they’ve obviously disavowed lots of Scalia.

 

Melissa Murray Like Bork is the preferred.

 

Kate Shaw That’s right. On his on the stars on the rise. I know I wonder whether Kavanaugh felt like he needed to do a little bit of rehabilitation. He was like, Scalia is being overshadowed by Bork in this argument. So let me, let me, let me bring back a classic.

 

Melissa Murray So Tldr this was fucking grim. And we are literally slouching towards Gilead and possibly fascism. So definitely fascism.

 

Kate Shaw Yeah.

 

Leah Litman Yeah.

 

Melissa Murray Yup

 

Kate Shaw So we don’t have an uplifting note to end on.

 

Melissa Murray I would say this is what a conservative 6-3 super majority gets you. So.

 

Leah Litman So next week is our annual listener Grab bag episode where we will be answering your questions. So that is what is next in the pipeline.

 

Melissa Murray Guess what new York, we’re coming for you. We’ve got big. Big news. We are very excited to announce that there will be a Strict Scrutiny live show as part of the Tribeca Film Festival on June 13th, so you can check us out while we are hobnobbing with our boy Bobby D, aka Robert De Niro, at the Tribeca Film Festival, because tickets go on sale on Tuesday, April 30th at 11 a.m. Eastern Time. And as you know, June is a wild time where this Goblin Court decides that it’s going to make a whole lot of bad decisions. So we are going to have lots and lots to discuss so you can learn more and get your tickets at Tribeca film.com/strict, and we’ll have links to all of that in the show notes. So we hope to see you there.

 

Kate Shaw We are also excited to announce that we finally have our own Strict Scrutiny YouTube channel.

 

Melissa Murray And we’re ready for our close ups.

 

Kate Shaw Well, this is the thing. We launched a podcast. It was like you really could do it in your yoga pants and unshowered.

 

Melissa Murray Not anymore.

 

Kate Shaw We can still do it in yoga pants because this is like a shoulder up operation. But have to shower. And if we have to shower, you at least have to watch us on YouTube. I think that’s a fair trade. You don’t have to. I think your earholes are still a great way to get a podcast. But if your eyeballs want to get in on the action too, subscribe. Type Strict Scrutiny into your nearest YouTube search bar and tune in for new episodes.

 

Leah Litman You can check out some of my office backdrop.

 

Kate Shaw Office backdrop, occasional dog cameos. Oh, nice. Is that the actual record?

 

Leah Litman Yeah, this is the Tortured Poets Department. This is a cross stitch that has lyrics from All Too Well. This is a portrait of my dog Stevie dressed as a queen.

 

Kate Shaw Wow. Yeah, there’s like a little bit of glare, so I don’t think we’re seeing in all their glory. Your amazing bookshelf materials.

 

Melissa Murray Ten out of ten I like your bobbleheads on the desk.

 

Leah Litman Thank you.

 

Kate Shaw I got to work on my background.

 

Melissa Murray My girls.

 

Kate Shaw Melissa. Always a ten out of ten. But I do have some, like, lighting behind.

 

Leah Litman Your background is amazing.

 

Kate Shaw It’s getting there. Again. I need I need better stuff on the bookshelf. Melissa, we’re supposed to have a separate consult about, like what? What tchotchkes I can put up there.

 

Melissa Murray I’m going to come out and help you.

 

Kate Shaw Actually will you come over?

 

Melissa Murray Yeah. Not today. Later.

 

Kate Shaw Fabulous. All right. No, but at some point. All right. Well, so YouTube viewers, you have all that to look forward to. Type Strict Scrutiny and your nearest YouTube search bar or tune in. New episodes will drop every Monday.

 

Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman. Me, Melissa Murray and Kate Shaw were produced and edited by Melody Rowell with help from Bill Pollack, audio support from Kyle Seglin and Charlotte Landes, and music by Eddie Cooper, production support from Madeline Herringer and Ari Schwartz. And if you haven’t already, be sure to subscribe to Strict Scrutiny and your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please do it now. Before we become an authoritarian dystopia, it would really help.

 

Kate Shaw It’ll help with warding off the dystopia. How?

 

Leah Litman Unclear. Unclear. But I appreciated it.

 

Kate Shaw We’ll feel better as it all descends.

 

Melissa Murray If we have five star ratings, maybe it’ll make not being a citizen okay.

 

Kate Shaw It’ll take the edge off.

 

Melissa Murray Thanks.

 

Leah Litman Five star ratings for second tier citizens.

 

Melissa Murray Love that.

 

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