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April 26, 2024 - Sean Hannity Show
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Jarrett and Schoen - April 25th, Hour 2
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A lot of legal stuff, as we've been telling you, going on all day.
The issue of absolute versus a limited immunity and the Supreme Court arguments today got very interesting on a lot of fronts.
And then, of course, the Trump witch hunt trial in New York with a biased judge who donated to Donald Trump's opponent.
That would be Joe Biden.
Possible conflict, statute of limitations, eight years later.
I mean, you just can't make this up.
But anyway, here to help us sort through all of this.
We have Greg Jarrett, Fox News legal analyst, best-selling author, David Schoen, civil rights attorney, previously represented President Trump.
Let's start with the Trump Immunity Supreme Court oral arguments that took place today.
Greg, let's get your take.
Well, it went exactly as I've discussed and predicted with you.
Presidents already have immunity from civil lawsuits as long as their actions fall within the outer perimeter of official duties.
And it looks as though the justices will extend that civil immunity protection to criminal prosecutions because as the discussion and the arguments revealed, the same reasoning applies.
Without some kind of immunity, the chilling effect on presidential decision-making would trigger paralysis.
You know, instead of a chief executive, America would be ruled by a committee of lawyers afraid to do anything out of fear of future prosecutions.
So, you know, it appears that there are at least four justices who want to send this back to the lower courts.
It's called remanding the case to sort of figure it out.
And one of two things will happen.
The Supreme Court will either give them guidance to do that along the lines of the immunity in civil cases, or the Supreme Court will just outright say we hereby extend the same official duties protection that was identified in the Nixon versus Fitzgerald case in 1982.
But this is, I mean, it's going to have to, one way or another, go back to the lower court, which means, you know, hearings and briefs, and there's no way that this case would be tried before the election.
I think that's a part of this.
One of the big arguments that I think came out here, and going into this, David Schoen, I thought that maybe the better argument would be limited immunity because they keep bringing up these absurd hypotheticals.
You know, well, if a president decides that their opponent in an official act is a danger to the country and orders their assassination, are you saying that they would be immune from that?
That's why I think you would have an argument for limited immunity, but criminal immunity and civil immunity, as Greg is talking about.
I think you're right, and I think you and Greg are saying the same thing, actually.
I think that in this case, they're going to do something they should do.
Look, I'm not in the prediction business, but what's clearly, oh, what clearly ought to be the result here, and what the arguments indicate, as Greg said, and as you've indicated, Sean, is something like Nixon versus Fitzgerald, the 1982 case that says a president must enjoy immunity for actions taken within the outer perimeter of his official authority, official acts.
I've said it before, you know, I hate to say it, but President Trump's going to win this one in spite of his lawyers.
The positions they take and took again today at the Supreme Court are just wrong.
They were asked today, for example, what if a president ordered a coup?
Would that be considered an official act?
And the lawyer said it depends.
It doesn't depend.
That's not an official act, nor is having SEAL Team 6 hit your opponent.
That would not be an official act.
And that's why it's a relatively easy case.
We must give presidents immunity to act within their official acts, or we would have prosecuted Abraham Lincoln and Obama and Bill Clinton and many others along the line.
But they have to be able to act in the appropriate manner when it comes to an official act for national security, for the integrity of an election, or otherwise.
I thought that Sam Alito kind of blew the one big argument in terms of the case against President Trump's arguments.
And he's asking the attorney.
He goes, if the president gets advice from an attorney general that something is lawful, is that an absolute defense?
The answer, yes.
Well, wouldn't the president just pick an AG who will let him do whatever he wants?
I mean, the guy seems stunned just listening to this.
According to our court observers, he looks stunned.
And apparently the AG can provide absolute immunity, but the president who is the boss can't.
I mean, that kind of is obscene, isn't it?
It is obscene.
It's absurd.
I thought some of the most important questions came from Brett Kavanaugh and Neil Gorsuch.
Kavanaugh asked a very potent question.
What's to stop a creative prosecutor from using a vague statute to prosecute a president, especially a prosecutor from the opposing party?
And the answer, of course, is nothing.
That's exactly what D.A. Alvin Bragg is doing in New York, Fulton County, D.A. Fanny Willis in Georgia, and, of course, special counsel Jack Smith in both Washington and Florida.
And then Neil Gorsuch is sort of chimed in.
And he said, you know, I worry about the misuse of the criminal law to target political opponents based on accusations about their motives.
Now, that really goes to the heart of all four of the criminal indictments against Donald Trump and the Alvin Bragg case ongoing right now in Manhattan is the most egregious example of this nightmare scenario, a politically motivated case conjured up by unscrupulous prosecutor to fulfill a campaign promise to get Trump.
And Bragg is not just using vague statutes, but expired ones that do not support the conduct charge.
And yet, so far, he's getting away with it.
And again, now you're back to the point where a president will then, in the future, only appoint an attorney general that's going to say yes to anything that they want them to say yes to.
When in reality, they're supposed to be independent, but we know people like Merrick Garland and Eric Holder are not.
Yeah.
The other undercurrent, by the way, in this case is, remember, the Supreme Court just took up the question of whether the obstruction of justice subsection that was applied to the January 6th demonstrators applies in this case, can be applied.
One of the charges that President Trump is facing.
And so the undercurrent during the argument was, well, it seemed to imply, at least, that they're going to go in the defendant's direction on that question.
But listen, at the end of the day, there's an important win for the law.
The question is, ultimately, does President Trump win it?
If they send it back to Judge Chutkin, if it comes out something like Nixon versus Fitzgerald, you can be just about sure, I think, dollars to donuts, that she's going to find, well, this was not within the outer perimeters of official acts.
And then it'll go back up to the D.C. Circuit on that factual question.
Or they could say, well, we're going to present this to a jury, the factual question.
That's more problematic.
I think that's a lot more problematic.
But I tend to think I agree with Craig on this, that they're going to come down and they're going to offer guidance on this in a specific way, knowing that ultimately it would end up back in front of them.
Wouldn't that be the case, Craig?
Yeah, I think that's absolutely right.
And, you know, the other interesting part is these justices did talk about all of the other comparable situations in which former presidents have made controversial decisions that arguably could have produced prosecutions after they left office.
George Bush, you know, could he have been charged for obstructing an official proceeding when he allegedly lied to Congress over the reasons for the Iraq invasion?
Could Obama be charged with murdering U.S. citizens in a drone strike?
Could Biden someday be charged with unlawfully inducing immigrants to enter the country illegally?
You know, what all of these four indictments have done is opened a can of worms that threatens the future presidency.
And the Supreme Court has finally, after sort of avoiding the issue of immunity for decades, is now confronted with addressing it because of the Trump prosecutions.
And if you listen to the conservative justices' questions, they don't worry about Donald Trump.
They worry about future presidents being handcuffed by the concern over future criminal prosecutions.
You're absolutely right because you're basically quoting Kavanaugh saying, I'm not focused on the here and now of this case.
I'm concerned about the future.
He actually used your words.
Yeah, he said our decision is a decision for the ages, which means to me also they're going to take their time on this.
Now, they'll probably have a vote on Friday as they normally do.
But, you know, they realize the historic nature of this, and they are going to carefully craft their ruling in this case.
All right, quick break.
We'll come right back more with David Schoen.
Greg Jarrett on the other side.
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That's why we started Normally, a podcast for people who are over the hysteria and just want clarity.
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We continue with attorneys David Schoen and Greg Jarrett are with us.
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And there's certainly skepticism on the part of some of the justices.
Sotomayor say, well, we would be creating a situation in which we'd be saying, is this what you're asking us to say, which is that a president is entitled not to make a mistake, but more than that, a president is entitled for a total person, personal gain to use the trappings of his office that you're trying to get us to hold without facing criminal liability.
I'm having a hard time, she said, thinking of creating false documents, that submitting false documents, that ordering the assassination of a rival, which again, I just hate the whole analogy because I think it's absurd, you know, that accepting a bribe and countless laws could be broken for personal gain.
David, your take on that part.
Well, no, I mean, but I think, again, I think the formula from Nixon versus Fitzgerald that I think they're likely to send it back with the guidance for really deals with that.
Each one has an answer.
It's not an official act.
It may be the person's holding office at the time, but it's not within what we think of as official acts.
Something like ensuring the integrity of an election when you have advice about that election that you believe needs to be acted on to ensure its integrity would be within the official act doctrine.
But something like, you know, doing something for personal gain or what we saw in the case of Bill Clinton with the Paula Jones situation and so on.
These are outside the realm and certainly the hit SEAL Team 6 kind of thing.
And by the way, I know everyone was offended by the hypothetical, but that's kind of hypothetical.
A lawyer has to be prepared to answer to fit within your formula.
But he had a different take on it.
His take is, no, you have to be impeached first and convicted, and then you can only be tried.
And they cited to Judge Kavan on that, but Justice Kavanaugh actually wrote the exact opposite.
He said that when a person's out of office, then if you first presented it to Congress and they didn't do anything with it, when the person's out of office, they could be prosecuted if it were the right kind of act to prosecute.
What's your take on what's going on in this New York City kangaroo court where you have a judge that donated to Joe Biden presiding and then potential family conflicts, and it's eight years later and the statute of limitations have passed.
But what is your take on the testimony of this guy, David Pecker, who is with the National Inquirer.
Greg?
Well, you know, Pecker's testimony is immaterial and incompetent.
He knows nothing about the 34 criminal charges of falsifying business records.
But, you know, no matter to Alvin Bragg, because his objective is to tie Trump to the sort of sleazy dealings of a notorious tabloid.
It's really filth by association here.
Look, the entire case is a farce.
It's a sham.
Any fair and impartial judge knowledgeable in the law would have long ago dismissed Bragg's sham charges.
Instead, you know, this case went to Judge Juan Rurshon, whose anti-Trump bias is on conspicuous display whenever he takes the bench.
His unconstitutional gag order on the leading candidate for president is one in a string of sort of head-banging pronouncements.
So, you know, I worry about a hyper-biased judge and also a venue in which the jurors were selected from the pool.
That's a pool that hates Donald Trump.
And so it undermines to me the Bill of Rights, an impartial jury.
It could have been moved elsewhere, should have been moved elsewhere.
Mershon wouldn't do it.
Yeah, it's going to be interesting.
Your take.
How's this going to play out?
30 seconds, David Schoen.
Well, Greg's 100% right again.
So are you.
And this judge should not be sitting on the case.
They've got teed up issues for appeal.
I don't love the way they raised some of them, but I still think the record's clear enough.
There are many cases saying this judge had to be disqualified and that it's reversible error.
They haven't ever identified the target charge.
We saw that even in the opening.
We saw it in the judge's denial of the motion to dismiss.
It's a farce, and it's going to just send President Trump up higher and higher in the polls because unfortunately everyone sees it for what it is.
If we can hang on to you guys, I just have too much that I want to ask both of you, and I think a lot of people want to have a deeper understanding of this.
We'll continue with David Schoen and with Greg Jarrett on the other side.
We'll get to your calls coming up straight ahead as well.
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All right, 25 down to the top of the hour.
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All right, let's go to a couple of moments that took place in oral arguments before the Supreme Court today.
I want to start with Neil Gorsuch.
You know, he's getting exasperated at the lawyer for the special prosecutor.
His name is Michael Draben.
And anyway, over the semantics over the word immunity, and I want to get reaction from David Schoen and Greg Jarrett, who continue with us.
But listen to this exchange.
Did you agree that there are some core functions of the executive that present conduct that Congress cannot criminalize?
Yes.
Is that a form?
I mean, we can call it immunity or you can call it they can't do it, but what's the difference?
We call it an as-applied Article II challenge.
Okay.
Okay.
We call it immunity just for shorthand's sake.
So I think we are kind of narrowing the ground of dispute here.
It seems to me there is some area you concede that an official acts that Congress cannot criminalize.
And now we're just talking about the scope.
Well, I don't think it's a just, but I think it's a very significant gap between any official act and the small core of exclusive official acts.
I thought that was a checkmate moment.
David Schoen, what do you think?
Yeah, I think so.
And I also think Mr. Drieben is not accurately relaying what Nixon versus Fitzgerald held.
By the way, it's not such a narrow exception.
By the way, why don't you explain for people, Nixon and Fitzgerald, because we've been talking about it all day.
Yep, Nixon versus Fitzgerald's a 1982 case was brought against President Nixon after he was out of office, a claim that he made an unfair, inappropriate, illegal employment decision.
And the court said that we're not going to subject a president, even out of office, to civil liability.
He or she is going to have immunity for actions taken within the outer perimeters of his official authority as president.
And so we refer to, you know, as an official acts immunity.
And it's quite broad.
That's why they said the outer perimeter.
Many examples are given, but essentially, you know, official act has been defined in McDonald versus U.S., a 2016 case, to say any official act, any matter that's pending before a public official and includes the president using his official position to exert pressure on another official, knowing or intending such advice will form the basis for an official act of another official.
And so, in my view, at least, it puts what happened here squarely within the official act.
It's not a narrow exception.
President stands apart from every other official.
And by the way, other officials have immunity too, judges, prosecutors in their realm.
Yeah, what's your take on that, Greg?
Because I think David nailed it.
Yeah, it's always a mistake to try to bicker over semantics with the Supreme Court justice and Drebin.
Yeah, by the way, that should be 101 in terms of being dumb.
You know, when you get a justice exasperated like that, can we just say immunity because that's what you're saying?
Yeah.
And they're trying to come up with a creative way to get out of the immunity that he's basically being forced into a corner to acknowledge.
Yeah, but Drebin is strident.
And he won't give an inch.
And part of the problem here is both sides are guilty of that.
You know, Dribin and the special counsel argued there should be no immunity whatsoever.
And of course, the other side, on behalf of Donald Trump, argued, wrongfully, I think, that there should be absolute immunity for everything.
Part of the problem arises from the Nixon versus Fitzgerald case, in which the Supreme Court, in their ruling, referred to absolute immunity, and then they set conditions, as David described, within the outer perimeter of official acts.
So it wasn't absolute immunity at all.
They immediately contradicted themselves.
It's really limited immunity, or let's call it immunity with conditions.
And, you know, I'll reiterate that listening to these arguments today, that's where the Supreme Court majority is heading here, to simply adopt the Fitzgerald principles and apply them to a criminal case because it makes sense.
I mean, you've got to offer some sort of immunity.
And, you know, this was a very different court in 1982, but it was a smart court.
And the justices there had spent a lot of time trying to figure it out, and they came up with a immunity solution that has stood the test of time civilly.
It should now be extended criminally.
I mean, that's the fascinating part of this.
Let's stay with Gorsuch.
And he's asking the same attorney for the special prosecutor if a president can be prosecuted after leaving office for leading a protest that would delay Congress, which kind of goes to the heart of a lot of the arguments that the special counsel is making.
Listen.
For example, let's say a president leads a mostly peaceful protest sit-in in front of Congress because he objects to a piece of legislation that's going through.
And it, in fact, delays the proceedings in Congress.
Now, under 1512 C2, that might be corruptly impeding an official proceeding.
Is that core and therefore immunized or whatever word, euphemism you want to use for that?
Is that not core and therefore prosecutable?
Without a clear statement that applies to the president.
It's not core.
The core kinds of activities that the court has acknowledged are the things that I would run through the Youngstown analysis.
And it's a pretty small set, but things like the pardon power, the power to recognize foreign nations, the power to veto legislation, the power to make appointments.
These are things that the Constitution specifically allocates to the president.
Once you get- A president then could be prosecuted for the conduct I described after he leaves office?
Probably not, but I want to explain the framework of why I don't think that that would be a prosecution that would be valid.
Your reaction, Greg Jarrett.
You know, this is really getting into the weeds, into the Youngstown case and so forth.
But this was really one of the...
By the way, you say the Youngstown case, people don't know what you're saying.
Oh, well.
Well, I don't remember the Youngstown case.
Well, remember that.
I mean, you do study a lot of cases at law school.
I'm sure you know Marlbury versus Madison and Brown versus Board of Education and all the important ones.
I'm not expecting you to remember every one.
Thank you.
I appreciate it.
But this was one of the few times in which they actually drew an analogy that is very close to their own case, the J6 Trump case, which of course led to the immunity claim, which they're now trying to decide.
Some of the other analogies I thought were quite instructive and useful in going forth with an immunity protection of some sort.
And, you know, this was one that was both direct to the Trump case, but a little bit in the weeds legally.
Your take, David Schoen.
Yeah, I mean, first of all, Greg will remember the Youngstown case in a second, Youngstown Sheet from 2 versus Sawyer, 1952 case.
Truman seized plans during the Korean War.
There's a question.
It was illegal because it probably violated a statute when you can seize private property under very narrow circumstances, but they didn't prosecute was a point.
Some people suggest it's one of the best Supreme Court written decisions ever and so on, but it lays out factors on when it's appropriate prosecution and that sort of thing.
But anyway, yeah, I just think that what Gorsuch and others are getting to is very reminiscent of the argument the other day on the obstruction statute.
And in fact, it's very cute and clever, I think, some of the examples they're using.
The other day, they said, well, what if a congressman, for example, pulled a fire alarm falsely on his way to a vote to obstruct that vote?
Is that something we can prosecute under the obstruction statute?
And they had the same kind of thing going during the reparte today, actually.
All right, quick break.
Our final moments with Greg Jarrett.
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