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[0] A federal appeals court shot down Donald Trump's claim of presidential immunity this week.
[1] And now the former president and GOP frontrunner is expected to appeal to the highest court in the land.
[2] The legal actions are part of the Trump team's plan to delay cases until after the November election.
[3] In this episode, we talk with a former federal prosecutor about Trump's latest legal maneuvering and what comes next.
[4] I'm Daily Wire, editor -in -chief John Bickley, with Georgia Howe.
[5] It's Sunday, February 11th, and this is an extra edition of Morning.
[6] Joining us to discuss the latest in Donald Trump's legal battles as former federal prosecutor Andy McCarthy.
[7] Hey, Andy, thank you so much for joining us.
[8] So a U .S. appeals court denied Trump's presidential immunity claim this week.
[9] First, can you break down this decision?
[10] And what do you think of this ruling constitutionally?
[11] I think if there was a way to depart or carve this new ground, and it would be new ground to find that a president had immunity from federal criminal prosecution.
[12] I really think that has to be done by the Supreme Court.
[13] Whether I'm right or wrong about that, the 57 -page ruling by the court is very thorough.
[14] I think it's mostly compelling.
[15] There are some parts I find a little bit more convincing than others.
[16] On the whole, I think looking at what the constitutional considerations were, the textual considerations and the policy considerations.
[17] This simply isn't any credible way to invent a immunity from criminal prosecution for a president out of the text and the original understanding of the Constitution to the extent that the Supreme Court had found that presidents had immunity from civil liability back in 1982.
[18] That was in a much more free -willing judicial era when courts didn't say.
[19] seem, especially the Supreme Court, didn't seem like it was as wedded to the text and the original understanding of the Constitution as it would be today.
[20] There's nothing in Constitution that explicitly says the president has immunity, even from civil liability.
[21] And as we know, there are a lot of cases and a lot of contexts where the courts have found that even though the presidency is obviously the most important office in the country, the interests of the presidency and the president himself or herself have to give way to the demands of the criminal justice system.
[22] So, for example, presidents have been found to be liable to civil suit for private actions that are taken during the presidency actions that don't have anything to do with their official responsibility.
[23] Same thing with criminal liability, again, for things that fall outside the ambit of their executive responsibilities.
[24] And even sitting presidents have been subject to subpoena in connection with criminal investigations.
[25] And while the court has recognized that, for example, the president has executive privilege with respect to communications with his top advisors, that has been broken or pierced in order to produce evidence that was relevant to a criminal case.
[26] So if you add all that up, it really was highly, highly unlikely that a court other than the Supreme Court was going to find that Trump had immunity from prosecution.
[27] And I don't think the Supreme Court will find it either.
[28] Now, you've made the distinction about whether or not he's acting to fulfill his duties as an elected official there.
[29] Is there constitutional immunity when carrying out the duties of your elected position?
[30] Yeah, that actually is, I think, the most interesting part of the court's decision today, because they do recognize, going back to Chief Justice Marshall's observations in Marbury v. Madison, they do recognize that there is an ambit of presidential responsibility that can't be reviewed by the courts.
[31] And that is the president's discretionary actions as president, which they distinguish from ministerial actions.
[32] So to be a little less abstract about that, we all know the president has pardon power.
[33] The president can issue a terrible pardon, one that's not got any justification in rationality, one that seems like it's obviously based on favoritism rather than merit.
[34] Nevertheless, there is no way that any court could review a pardon because that is within the discretionary authority of the president under the Constitution.
[35] On the other hand, there are a number of things that the president has to do because Congress has enacted statutes that give the president's duties and responsibilities.
[36] And the court regards these as ministerial responsibilities.
[37] In other words, the Congress enacts statutes that apply to everyone, and everyone, including the president, is supposed to honor them.
[38] And the court argued, and I think this was compelling, The court argued that because the president is the only official in the government who takes a constitutional oath to execute the laws faithfully, it's very paradoxical that a president could argue that he is above the laws that he's supposed to be executing and that they can't reach him.
[39] It's a contradiction to say that, you know, I have a solemn oath to make sure the laws are faithfully executed, but I can break them.
[40] So the court found that ironic, and I thought that was a pretty persuasive part of the opinion.
[41] What about Trump's double jeopardy claim?
[42] What was the panel's rationale for dismissing that?
[43] I've always thought that was the weakest claim that Trump had.
[44] The strongest claim I thought Trump had was the policy that if you don't give the president immunity, he's got to worry, especially if we now have politicized prosecutions, he has to worry that the actions he takes as president, some of which, which are going to be very edgy actions, could subject him to criminal prosecution if a new administration of the opposition party comes in and decides they want to investigate him, as happened here.
[45] I thought the weakest part of his argument was the double jeopardy claim.
[46] He claimed that because the impeachment clause in the Constitution says that if a president is convicted in an impeachment trial, he is then subject to prosecution in the court.
[47] That provision doesn't mean that if he's acquitted, he's not subject to prosecution in the courts.
[48] What that provision of the Constitution was addressing was not double jeopardy.
[49] It was addressing where the limits of the penalties that the Senate could impose in the impeachment context and the distinction between the American system and the British system.
[50] In the British system, Parliament not only can remove power in impeachment, it can also impose criminal penalties.
[51] In our system, the way the framers designed it, the impeachment is solely a political process.
[52] It's not a judicial process at all.
[53] And the only thing that the Senate can do is strip political power, whereas if there's criminal sanctions to be imposed, that's left to the regular judicial process.
[54] So because double jeopardy is only a protection from a second criminal prosecution after someone has already been in, a first criminal prosecution for the same charge, I didn't see how impeachment had any relevance at all for double jeopardy purposes, because impeachment's not a judicial proceeding or criminal prosecution.
[55] It's a political process.
[56] And the other thing about impeachment, which made Trump's claim pretty spurious, is that double jeopardy is only a protection from being prosecuted a second time for the exact same crime.
[57] And in this instance, what he was impeached for was incitement to insurrection.
[58] And what Jack Smith's four -count indictment charges is not incitement and not insurrection.
[59] It's four different charges entirely.
[60] So even if there were any jeopardy, double jeopardy effect of an impeachment proceeding, which there isn't, they're not the same crime.
[61] So there wouldn't be any double jeopardy protection.
[62] Now, Trump has already issued a statement and says he respectfully disagrees with the ruling and that he will appeal.
[63] What happens next?
[64] Well, this is very interesting because I think, you know, obviously what Trump is trying to do more than anything else is delay things so he can push it beyond election day because if he gets elected as president, then his Justice Department at that point can fire Jack Smith, dismiss the indictment.
[65] if the court gave him a hard time about that, he could always pardon himself.
[66] But he could basically end this case if it doesn't get tried before the election if he wins the election.
[67] So delay has always been a big part of Trump's strategy.
[68] The court obviously knew that.
[69] So I thought as interesting as the 57 -page opinion was a one -page order that the court issued in conjunction with the opinion, where they basically said to Trump, he has until Monday, if he wants to appeal to the Supreme Court, if he does that, then they'll continue to, as the court's parliance puts it, withhold the mandate.
[70] That means the case won't be considered disposed of or finished on appeal, and that would mean Judge Chutkin, who is the trial judge who has the case, will continue not to be able to take any action on it.
[71] She won't be able to have free trial proceedings, oversee discovery, hold hearings, make rulings, et cetera.
[72] The case would continue to be held in advance.
[73] However, the court basically said if Trump, instead of expeditiously appealing to the Supreme Court, decides instead to seek rehearing en banc, which means rehearing by the entire D .C. Circuit, then the court says that is not going to stop the court from issue.
[74] its mandate.
[75] So in other words, if Trump doesn't appeal to the Supreme Court by Monday, the circuit court that made its decision today is going to give the case back to Judge Chutkin so she can begin acting on it again.
[76] So what that means in a nutshell is, while I think Trump probably hoped that he could string this out for another couple of weeks by seeking rehearing on bunk from the full circuit, what he'll probably have to do at this point is forget about going to the full circuit and just appeal to the Supreme Court and hope that he can convince four justices to grant certiorari, which means to accept the case for consideration.
[77] And if they do that, if the court does accept this case, then what does the timeline look like?
[78] Well, see, I don't think you can answer that question just in the context of the immunity litigation because the wild card here or the other moving part that has to be considered is the fact that in a case where Trump is not a party, but one that's of immense importance to him, the Supreme Court has agreed to hear the challenge to the obstruction statute that's been brought by a number of the defendants in the capital riot cases.
[79] And the reason this is so important is because in the four -count indictment against Trump, the weightiest, gravest two charges are obstruction charges under this very same.
[80] statute.
[81] The Supreme Court is not going to hear argument in the obstruction case probably until March.
[82] They haven't even put it on the calendar yet, which means we are highly unlikely to get a decision in that case prior to the end of June when the court wraps up its term.
[83] I don't really see how Judge Chutkin could start trial until she gets the guidance from the Supreme Court on how to construe the obstruction statute.
[84] So to my mind, no matter what happens with the immunity, and I frankly wouldn't be surprised if the Supreme Court decided not to hear the immunity case and just let the D .C. Circuit's ruling stand.
[85] The real important thing to Trump at this point is the obstruction case, and we really won't be able to tell when this case can get scheduled until the court decides what to do with that case.
[86] Because if they issue a ruling that, that blows out of the water the way that the Justice Department prosecutors have been applying the obstruction statute, that may require a big overhaul of Smith's case.
[87] It may not also, but we won't know until they decide it.
[88] And to be clear, you expect that to be probably this summer.
[89] Well, I think the longer we go without it being scheduled for oral argument, the more likely it is on the late end of June.
[90] And then when you could possibly have the case, or the trial would really hinge on what the court did.
[91] So if the court looked at the obstruction statute and the way the Justice Department's been applying it and they're satisfied with it and they decide not to do much with it, Smith may not have to tweak his case at all.
[92] He may just be able to go to trial on the indictment as is.
[93] On the other hand, if the court does major surgery on how prosecutors use the obstruction statute, I actually think Smith's use of the obstruction statute against Trump is more problematic than the Justice Department's use of it against the rioters.
[94] So this could be a problem for Smith, and it would depend on just how big of a problem, meaning how sequential the court's opinion is in terms of how the prosecutors have been using the obstruction statute.
[95] The final question, there's continually more moving parts in all of these cases, but stepping back a little bit, how do you expect this to play?
[96] out over the next few months in terms of the prioritization of some of these cases.
[97] Are any of these cases going to proceed in an expedited way?
[98] Well, the next interesting question, I think, is we now know that the Washington federal election interference case, the case we've been talking about the case where Trump raised this immunity issue, we now know that that had a trial date of March 4th, but the court has taken that off the calendar, and we don't know when the case can be tried.
[99] That's important because the case brought by the Manhattan District Attorney, Alvin Bragg, when he first brought that case about a year ago, the judge assigned to it gave it a trial date of March 25th.
[100] All along, when it looked like the federal case could get tried on March 4th, Alvin Bragg, the District Attorney of Manhattan, has said that he would defer to the federal prosecutor.
[101] So it didn't look like that case would go.
[102] So that case involves the hush money payments that Trump made and Bragg alleges fraudulently booked in his records.
[103] So there's a possibility that case could go in March if it turns out that there's no federal case, although I think Democrats really would not want to start with that case because to me that's a really, I'm tempted to say frivolous, but it's a really bad case.
[104] and I think there's a strong possibility even in Manhattan Trump could beat the case.
[105] It's that cockamamie.
[106] If that case doesn't go, then we're really down to watching what the Supreme Court does with the obstruction statute and how that affects the electric and interference case.
[107] Because as for the other two cases, we have the federal documents case at Mara Lago down in Florida.
[108] That case is not going to get to trial, I don't believe, prior to a law.
[109] election day because it comes under what's known as the Classified Information Procedures Act where you have to work out all the admissibility issues regarding classified information prior to trial.
[110] Those cases are very, very hard to get to trial.
[111] They're complex.
[112] And even if a judge is really pushing hard to get the case to trial, it's still hard to get the case to trial.
[113] And I don't think this judge is trying all that hard to push it along.
[114] And then the other case is the Fulton County RICO case arising out of the 2020 election in Georgia, but that's now mired in scandal and some other legal complexities and there's no trial date on the horizon there.
[115] I highly doubt that that case will go to trial prior to the election.
[116] So I think the two big questions are, will Alvin Bragg's prosecution go in March or sometime close to March and what will happen with the election interference case.
[117] Well, a lot on Trump's docket here.
[118] Andy, thank you so much for coming on.
[119] Yeah, sure.
[120] It's my pleasure.
[121] That was former federal prosecutor, Andy McCarthy, and this has been an extra edition of Morning Wire.