Joining us now, MSNBC legal correspondent Lisa Rubin,
former FBI general counsel and former senior member of the
Mueller probe Andrew Weissman,
and former US Attorney and senior FBI official Chuck Rosenberg.
Alright, I know not everybody is in agreement at this
table,
and I think that's what makes this a really interesting
conversation.
I read through the whole
opinion myself and as I said at top it,
it felt circular in in the arguments that the Constitution,
the majority argues, implies. It doesn't say so in the
Constitution,
but they argue it implies that a president has to
have immunity to be energetic and to make decisions,
that he needs it in order to do the job
of the presidency and that you can't question it
even when he is trying to use that same power
to violate the Constitution.
As you read through this,
as I said, it was hard to look toward the
future.
And it felt more like an an opinion that was
squared,
focus squared solely on the present and the present case
and the present press or the
present candidate for the GOP nomination who's running for office
again,
Donald Trump.
So, you know, at the oral argument,
there was a lot of discussion about essentially a policy
debate that seemed to be going on where you had
the conservative justices saying they're worried about the Department of
Justice and prosecutors and grand jurors going after presidents one
after the other,
that that's the thing that they're worried about.
And you had Justice Jackson and others saying,
that's not what I'm worried about.
We don't have a history of that.
What we do have is a
former president who's under 4 indictments who's saying that when
he retakes the presidency,
he wants to go after people.
And you also do have a history of presidents who
arguably have abused their powers,
namely let's just take Richard Nixon.
So you do have, on one hand,
that's the thing to worry about.
And so I think you see that
in this opinion where they're basically saying,
no, we're going to against no historical record.
This is what we're going to protect the president from
without really thinking about that.
You have someone running for
it seems like they're using as,
as I said, the Trump case is an academic one,
that they're saying that Donald Trump's actions here,
it's a good moment for us to be able to
define where presidential immunity lies.
And they're not treating it as the special counsels argued
and as Democrats argue and as a lot of folks
saw what happened
after the election in 2020 as an existential issue that
needs to be addressed.
I would agree with that.
And I would also say they seem to be concerned
about this unending cycle of prosecution.
So again, I know that Chuck's view of this is
that the opinion puts a thumb on the scale not
for former President Trump,
but for the executive. And there are certainly shades of
that.
I mean, viewed generously, you can read the section about,
for example, the president's interaction with the Justice Department as
precluding prosecution,
for example, of former President Biden and even the attorney
general for having brought about some of these prosecutions in
the first place.
And maybe that's good news.
On the other hand, it's hard to see how in
considering this moment,
they were not more swayed by the existential crisis of
the person before us who is the reason that this
case was brought.
The reason that we don't have prosecutions in our
234 year history is not because,
as John Sauer argued, there was a presumption against prosecuting
presidents.
It's because we never had elected a person who would
have done the things that this president is alleged to
have done in the indictment.
And the court's failure to to grapple with that more
transparently,
I think is a failure.
Chuck, pushback, what are your thoughts?
Well, look, I, I don't wholly disagree with anything that
Lisa or Andrew said.
And by the way, I do think there are some
problems with the opinion.
Justice Brown Jackson touched on it.
There are indeterminate standards that are going to make it
hard not just for the prosecutors,
but for the District Court judge to figure out what's
in and what's out and how they go forward.
And, you know, and all of that could be appealed.
That said, I do think,
as Lisa said, that this has more to do with
a thumb on the scale for the executive and less
to do with Trump.
I take the Supreme Court,
and maybe I'm a fool at their word when they
say they're writing for the ages.
I know that there is nothing in the Constitution that
specifically says the president has immunity,
but it is implied and some level of immunity.
Both sides agree that oral argument was appropriate.
You don't think it
really fuzzies up the separation of powers?
Well, that's already pretty well fuzzed up.
Katie has been for a long time.
So what? What authority does anybody have over the executive?
I mean, this gives him even more immunity.
What authority is there to push back on the executive,
given this opinion, seemingly less,
or to hold the executive accountable?
Seemingly less and less. I mean,
there has been a shift,
I think anyone, any presidential historian,
I would tell you, over the last several decades of
authority from the Congress,
which has largely abdicated its role
to the executive. It's much easier to be a president,
you're only one than a member of a of a
legislature where you're 1 of
535. That shift is ongoing.
And this is a fairly dramatic illustration of it,
Katie. But I don't think it's the end of the
world.
I do think it makes life much more difficult for
the prosecutors because not only do they have to go
down to a trial court and figure out again what's
in and what's out, what's official and what's unofficial,
but they're going to lose at least
part of their case. Sonia Sotomayor was,
as I mentioned at the top,
pretty scaling in her dissent and she and she lays
out some very disturbing scenarios that that she believes would
be fine.
Now she calls she calls Donald Trump's actions treasonous.
And then she goes on to say this new officials
Act immunity lies about like a loaded weapon for any
president that wishes to place his own interests,
his own political survival or his own financial gain above
the interests of the nation.
The president of the United States is the most powerful
person in the country and possibly the world.
When he uses his official powers in any way under
the majorities reasoning,
he now will be insulated from criminal prosecution.
Orders the Navy SEAL Team 6 to assassinate a political
rival.
Immune. Organizes a military coup to hold on to power.
Immune. Takes a bribe in exchange for a pardon.
Immune, immune, immune, immune. Let the president violate the law.
Let him exploit the trappings of his office for personal
gain.
Let him use his official power for evil ends.
Because if he knew that he may one day face
liability for breaking the law,
he might not be as bold and fearless as we
would like him to be.
That is the majority's message today.
There's never been a moment in history before where this
line has needed to be drawn in this way.
Presidents have. They have the Office of Legal Counsel,
they have lawyers on site advising them where the lines
are.
Why does the Supreme Court need to get into this?
I think one of the most remarkable things in the
majority opinion is that they do not address
those hypotheticals. So the concern going in was the hypothetical
of the Court of Appeals,
which was Seal Team 6:00.
What if the president orders the assassination of his political
adversary and Justice Sotomayor is saying,
what about that? Your test,
how does it work? Your the argument is going to
be made that that is official conduct.
And I mean, if it's a case by case basis,
say that happens, does that then just get litigated?
Does it have to go?
And it's does there have to be an evidentiary hearing
first before it's brought to a full trial?
I mean, what is what is the process by which
a,
a person who uses Seal Team 6 to assassinate a
political rival,
how are they held accountable?
Can I give you another example which there won't be
a hearing is someone
who's president says to the attorney general,
I want you to bring a bogus prosecution against my
political adversary.
So not death prosecution. This decision says communications between the
president and the attorney general are absolutely immune.
Can't even bring them up as evidence.
Can't. They're absolutely immune, and you can't.
And you can't even use it as evidence.
Yes. There's no discussion about whether that's official or unofficial.
The court takes that fully off the table.
They say it's a core constitutional function that control over
investigations and prosecutions fall into the core executive powers of
the president,
for which we don't even get into the land of
evidentiary hearings.
And as Andrew says, that's a very frightening prospect that
any president can use.
Forget about SEAL Team 6,
having the Department of Justice at your disposal to,
to use their favorite word,
weaponize it is an extraordinary thing.
Under this opinion, there is still the case that Jack
Smith has.
It does still exist. It will go back to Judge
Chutkin.
The conversations that Donald Trump had with with his Department
of Justice seem to be off the table now.
But there is a question about conversations he had with
Mike Pence.
Those are presumptively immune, but it's up for debate.
And then there are the fake set of electors,
etcetera. So if you are Jack Smith and you read
this today,
what are you seizing on?
Well, I'm not having a great day if I'm Jack
Smith and I'm reading this right now.
But I think there are glimmers of hope,
or at least things he can grab onto and argue.
For instance, in the January 6th indictment,
Katie, there are allegations that Mister Trump consulted with private
lawyers and private consultants,
people outside of the executive branch,
outside of government to perpetuate his fraud.
I would argue that that is not immunized and wholly
within the ambit of the prosecutors.
To your point about conversations with Mike Pence,
presumptively off limits, but that presumption is rebuttable.
And that's what. And that's hard.
I don't mean to suggest it's easy or they're going
to prevail,
but I think the prosecutors have arguments below
and the devil's in the details.
And I hate that cliche.
And I've used it 17 times today,
but it is. And so we have to see what
Judge Chutkin does with this and whether she can figure
out the indeterminate standards that Justice
Katanji Brown Jackson warned of.
There's there's chapters to be written.
One problem, though, Katie, is that these chapters aren't going
to be written for quite some time.
And if Mr. Trump becomes president,
Perhaps not at all.