Joining me now is the retired former federal judge J
Michael Ludic.
He previously served on the 4th Circuit Court of Appeals.
Crucially, he helped this country avoid a constitutional crisis when
on January
5th, 2021, he advised then Vice President Mike Pence that
he did not have the authority to to not certify
Joe Biden's victory,
contrary to what Donald Trump was pressuring Mike Pence to
do.
Judge, it's good to see you this morning.
Thank you for joining us.
Good morning, Allie. Thank you for having me on with
you this morning.
Judge. As you posted on social media after the hearing
the Supreme Court hearing oral arguments on Thursday,
one of your takeaways was that quote.
The court and the parties discussed everything but the specific
question presented.
End Quote. I want to understand what you believe the
specific question that the Court should have been considering is
and why it didn't succeed in addressing it.
Ali. The Supreme Court has now fiddled while Rome has
almost burned to the ground
all the trivializing the existential threat to to
America's democracy and the rule of law facing the country.
America's democracy and the rule of law are the heart
and soul of the nation.
It's our democracy and rule of law that have made
America the beacon of freedom for the world for almost
250 years. Donald Trump's attempt to overturn the 2020 presidential
election
did drive a stake through America's democracy and the rule
of law.
His efforts to overturn the election both disqualified him from
the presidency under the 14th Amendment,
and it rendered him subject to prosecution for his offences
against the United States.
Yet 3 1/2 years later,
the former president has remained
unapologetically defiant. This week he argued,
as you said, to a receptive Supreme Court
that he is absolutely immune from prosecution for his offenses.
Indeed, and that all presidents
must be absolutely immune from prosecution for the crimes they
commit while in office,
in order that he and all future presidents
will be free to faithfully execute the laws
without fear that they will be held accountable for the
crimes they commit while
in office. That this absurd argument is even being made
before the Supreme Court is an embarrassment to the Constitution
and to our country.
This said, the Supreme Court seriously entertained the former president's
argument earlier this week,
clearly telegraphing that it was tempted by this preposterous argument,
all the while barely even mentioning the narrow and only
question presented to the court for decision,
namely whether the former President may be prosecuted for these
specific offences he committed in attempting to overturn the 2020
election and remain in power against the will of the
American people. Allie, there's not even an argument
under the Constitution that a president of the United States
is immune from prosecution
for attempting to overturn an American election,
remain in office and cling to power and defiance of
the will of the American people.
The argument itself makes a mockery out of the Constitution,
our democracy, and our rule of law.
If a president can't be held accountable under the Constitution
for this gravest of offenses against the country,
then presidents can be held accountable for no crime that
they commit
while they hold the office of the President of the
United States.
So, Judge, we often have you here as somebody who
understands the law and the Constitution and electoral politics.
You're an expert on that.
But I want to just ask you now,
as a judge, if you're a judge considering a case,
how do you draw the line?
If you're one of the Supreme Court justices,
how do you draw the line between trying to use
hypotheticals to establish the boundaries of what the Trump team
is arguing versus discussing the very specific things that you're
talking about? Donald Trump is accused of doing XY and
Z.
We can talk all we want about the hypotheticals of
what a president should or should not be allowed to
do.
But as you state, he is accused of these things,
that in itself is disqualifying.
And the conversation about what presidents can do for all
of maternity might be a different discussion
ally. It's fundamental to the judicial process
that that a court decide
only the issue that's before it
and no other issue. In this case,
there is a pristine clear
issue of constitutional law before the Supreme Court of the
United States.
That is the the, the question or the issue that
that that I just framed for for your audience,
the Supreme Court that this past week barely discussed that
straightforward, clear question. It discussed everything but that question.
So it was it resembled a,
you know, a law Class,
A conversation in a law class about all of the
possible crimes that a president commit could commit while in
office
and what would be the consequences of prosecuting
that president for those offenses.
Again, almost never discussing the single
issue in front of the court.
Now, how does a court decide the issue before it?
It applies the Constitution and laws of the United States
to that specific question and that specific question only,
without regard to the political or other consequences of the
Court's decision
here, the Supreme Court. United States should have
spent its entire 2 1/2 hour argument on whether
the former President is immune from prosecution for having committed
the grave offense of attempting to overturn the 2020 presidential
election
and remain in power, notwithstanding the votes of the American
people instead.
Of course, we never know what the Court will do,
but it seems evident to all that the Court will
end up
remanding the case to the lower lower courts,
either the Court of Appeals in the first instance,
or more likely the Federal District Court who's going to
to
sit and preside over the trial.
If it does that, it is will most likely ask
that Court to
determine which of the President former presidents
acts criminal acts constitute acts in his official capacity as
President of the United States,
and which constitute acts in his personal,
private, or candidate status, if you will.
These are decisions, frankly, that the Supreme Court
should have made should make itself
in the first instance when it has the case before
it.
But again, it appears that the Court will almost certainly
remand the case to the lower courts for that fundamental
constitutional decision.
The result, I believe, is that
the former president will not only
not be tried before the election in November,
it's likely he will never be tried for
the offenses for which he's been charged.
That's the question I was going to ask you about
what what this does to the timing.
One of the most talked about portions of the hearing
on Thursday was Justice Alito's question regarding
a stable democracy. Let's let's listen to both of these.
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 1,
leave office peacefully if that candidate is 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?
So, Judge, this is one of those hypotheticals that doesn't
address what's actually happening here,
because the basis of Justice Alito's questioning ignores the fact
that we're actually dealing with the case of the only
former president in the history of this country who thwarted
the peaceful transfer of power.
So the the case Alito's making the hypothetical is interesting,
and I'd love to hear legal opinions and discussions on
that.
But that's not what Donald Trump is actually facing.
Well, Ali, I'm not so sure that's correct.
That was a hypothetical question,
but it was unmistakenly
A hypo, A hypothetical question
directed at at the current issue before the court.
So I was astonished by that question,
as were many others.
But. But I reason from that question this
that at least some members of of the court
are
their argument. Their argument assumes
that the prosecution of the former president is politically corrupt,
and it seeks then a rule
that would prevent all future presidents
from prosecuting their predecessors
for like crimes or even lesser crimes.
The problem with that
argument, if you will, is that
that would yield a rule that would immunize all future
presidents
from all crimes committed against the United States while in
office.
That simply can never be
the law.
But this Supreme Court is exploring
exactly that possibility.
Judge, it's always enlightening to talk to you,
Sir. Thank you for being with us.
Judge Michael Ludig is a former federal judge on the
US Court of Appeals for the 4th Circuit.