This week the Supreme Court hears oral arguments in Trump v. United States, a case that asks whether the former president is immune from criminal prosecution for conduct that occurred during his tenure in office. In this episode, Professor John Yoo of Berkeley Law School and Smita Ghosh of the Constitutional Accountability Center join Jeffrey Rosen to preview the arguments in the case, review the founders’ views on executive immunity, and discuss how the Court might decide this crucial case.
Please subscribe to We the People and Live at the National Constitution Center on Apple Podcasts, Spotify, or your favorite podcast app.
Today’s episode was produced by Lana Ulrich, Samson Mostashari, and Bill Pollock. It was engineered by Bill Pollock. Research was provided by Samson Mostashari, Cooper Smith, and Yara Daraiseh.
Participants
John Yoo is the Emanuel Heller Professor of Law at the University of California at Berkeley. He is also a Nonresident Senior Fellow at the American Enterprise Institute, and a Visiting Fellow at the Hoover Institution, Stanford University. His tenth book, Defender-in-Chief: Trump’s Fight for Presidential Power, was published by St. Martin’s Press in 2020.
Smita Ghosh is an appellate counsel at the Constitutional Accountability Center. She previously served as a Research Fellow at Georgetown University Law Center and a Supreme Court Fellow at the U.S. Sentencing Commission. Smita joined in writing CAC’s brief filed on behalf of constitutional law scholars in support of the respondent, the United States.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources:
- Trump v. United States (oral argument via C-SPAN; transcript)
- Constitutional Accountability Center, Smita Ghosh, et al, Brief of Scholars of Constitutional Law in Support of Respondents, Trump v. United States
- Smita Ghosh, “The Founding Fathers Didn’t Think Trump Should Get Immunity Either,” Newsweek, Feb 8, 2024
- John Yoo, “The Trump Immunity Case is Weak—But He Doesn’t Need it to Prevail,” Newsweek, Mar 6, 2024
- Nixon v. Fitzgerald (1982)
- Blassingame v. Trump (D.C. Cir. 2023)
Excerpt from Interview: John Yoo argues for the need for a reevaluation of policy-based approaches and questioning the rationale behind granting immunity in light of future presidential accountability.
John Yoo: A lot of the discussion and argument we have had doctrinally and historically has been about whether sitting presidents could be prosecuted. Jeff and I, we cut our teeth in the '90s in Washington DC, I don't know if we should admit that we're that old on the podcast but, right? We remember Ken Starr going after Bill Clinton in the Whitewater investigation and what should be impeachable, right? He's ultimately impeach versus what should be subject to justice department prosecution. And the Justice Department has taken the position, at least since the Nixon years, that a sitting president could not be prosecuted by the federal government, although that's easy to solve because the president is the head of the law enforcement for the Executive branch. He could just order prosecutors not to prosecute him. So you don't really need an immunity provision.
But that's where most of the arguments have been. And, I think I find a lot of the authorities that President Trump draws from are actually about that question, about should the sitting presidents be. And you see, there, I think you can have a very interesting division of opinion, but I think most everyone has said that, but that's about sitting presidents. Once you're out of office, and I think this is Justice Department's opinion too in past memos has been those precedents don't apply to once you're out of office, 'cause all the things you would be worried about, like interfering with the president executing his or her constitutional duties aren't at issue anymore. And that's, I think, also the segue into how to think about the, I would say functional or policy arguments. As you said, Jeff, there are precedents on whether a president can be sued civilly in these cases from Nixon versus Fitzgerald is the leading case.
In those opinions, which are I think very much a part of the Burger, sort of this transition from the Warren to the Burger Courts, the court does not undertake a careful textual or historical analysis. It's almost just the court sort of says, oh, it would be a good idea if presidents were not subject to suit for these three reasons, that it would interfere with the president's duties, presidents would be worried all the time about being sued when they make decisions. It could actually be time consuming. You don't want presidents always being thinking about litigation as they're doing their jobs. I think that approach would not make sense to the current Justices of the court who have said on, not just separation of powers cases where they have said this, but all kinds of other cases where they have said, we start with the text and history.
If you were to say you used the approach to constitutional interpretation which the court set out in Dobbs, for example, you start with the text, the original understanding, and then the historical practice around the time. The court says, has tried to say we're not interested in following this kind of policy-based approach that the Warren and Burger courts followed. So I actually would be surprised if Nixon versus Fitzgerald had been never decided, and you brought that case to the court today, should presidents have absolute immunity from civil lawsuit, they would not write an opinion that looks anything like Nixon versus Fitzgerald, I think, it would be completely different. So, but to the extent these policy arguments are important, what Trump is saying is my criminal immunity should basically match, it should follow the outlines of my civil immunity.
There's no actually sort of functional reason why that ought to be true. You could, there are plenty of cases where civil liability, criminal liability are different. I think the functional arguments that Trump is making are really, I would say, are those that ought to be in the minds of presidents and prosecutors when they decide whether to use their awesome power against former government officials. Which is, are we doing something that would damage the Office of the Presidency so much that it would interfere with, handicap in some way, the ability of future presidents? I think this is a good policy argument in that it's saying, think about the incentives we're creating now with this litigation for the way future presidents do their job. I think what the Trump brief does not answer, which is why is immunity the answer to that problem?
Why isn't it just the current president would worry about that too, and so if they're ever gonna take this step, I mean, I do think it's kind of crossing a Rubicon in terms of practice, is if you're gonna cross a Rubicon and say, we are gonna criminally prosecute a president, then I would think the current president is really gonna worry, what is the effect of that on the future? What is the effect of that on future presidents? Why a court should be able to consider that and think about that when it decides on immunity, that's the thing I think the Trump brief doesn't answer.
Excerpt from Interview: Smita Ghosh argues against immunity for presidents based on historical evidence, noting that the Constitution's text and absence of explicit immunity suggest intentional design by the framers to hold the executive accountable.
Smita Ghosh: There's a lot of great historical evidence to support the argument against immunity. So first, considering the constitutional text, I know we were just talking about the Impeachment Judgment clause as a kind of textual argument that Trump is presenting, but I might even push back on that just because the text of that clause deals with what happens to the party convicted by impeachment. It provides that they, that party can still be subject to prosecution. It doesn't address the party is not convicted, and Trump reads into that a negative implication, because the party's not convicted, then they must not be subject to prosecution. So, and I agree with Professor Yoo's reading that it just doesn't really speak to that because it was meant to emphasize that these are two separate types of proceedings.
And a conviction in one with the limited kind of punishments that a Senate can impose doesn't lead to the same limits in the criminal system. Another thing to point out is that there's no textual grant of immunity for presidents, unlike the grant of immunity to legislators in the Speech or Debate clause. The Constitution specifically provides that legislators are immune from arrest during proceedings and in the history of the drafting of the Constitution, we do know that James Madison at one point suggested that the convention consider what privilege ought to be accorded to the Executive, and then according to Farrand's records, it's just crickets. There's no response. The convention adjourns for the day, and they don't take that up.
So, especially when reading against the explicit protection for legislators, it makes me think that that is somewhat intentional, this was part of the design. And the context for that which we can, you can see through the ratification debates, is that the framers of the Constitution didn't want to create a system where the Executive was inviable. They wanted a leader who was very different from the British King, who could do no wrong and could not be held accountable by law. The framers said, and pamphlets supporting the Constitution and defending this new way of government that the president would be kind of held accountable and subject to, in the words of James Iredell, not exempt from a trial if he should be guilty or suppose guilty. So these are things that the framers were kind of engaging with and a part of the system that they created.
Full Transcript
View Transcript (PDF)
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Stay Connected and Learn More
- Continue the conversation by following us on social media @ConstitutionCtr.
- Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate.
- Subscribe, rate, and review wherever you listen.
- Join us for an upcoming live program or watch recordings on YouTube.
- Support our important work.
