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What to watch for at the Supreme Court presidential immunity arguments


One of Richard Nixon's most famous quotes, right up there with I am not a crook, had to do with presidential immunity. When the president does it, he said, that means that it is not illegal. Well, that idea that you cannot prosecute someone for actions taken as president, the Supreme Court has never actually ruled on it. On Thursday, the justices will take a crack with the federal election interference case against former President Donald Trump hanging in the balance. To preview the case and its implications, I am joined by University of Texas law professor Lee Kovarsky. Professor Kovarsky, welcome.

LEE KOVARSKY: Thank you for having me.

KELLY: So the special prosecutor on this case, Jack Smith, has charged Trump with a number of crimes. They're all related to the effort to overturn the 2020 presidential election. Trump is arguing, can't happen. He cannot be prosecuted. Just lay out - what is his reasoning?

KOVARSKY: Former President Trump is arguing that former presidents have immunity for criminal prosecution from conduct undertaken while they were president. And he's arguing that the conduct alleged within the indictment is conduct within the scope of the presidency, and because of that, he can't be prosecuted or convicted for it.

KELLY: OK. So we will note that the Federal Appeals Court, which ruled on this, did not buy it. They roundly rejected this argument by Trump and his legal team. I will further note that most legal observers believe it is extremely unlikely the Supreme Court will give Trump a complete pass, complete immunity. You argue it is still worth the Supreme Court hearing this case, and I want to know why.

KOVARSKY: Donald Trump and people in Trump world are being pretty explicit about their intent to weaponize the Justice Department and to do so against future presidents. And if we're entering a new political era in which newer presidents prosecute their predecessors, you can't really put the genie back in the bottle, but you can control the downside somewhat with certain kinds of immunity.

KELLY: So, I mean, what kind of precedent do you think it would be useful for the court to establish here?

KOVARSKY: So there are certain things that presidents do that are uniquely assigned to them. The most visible and intuitive ones are things like pursuing national security objectives abroad or engaging in foreign affairs. And in my opinion, those are the sorts of things for which a criminal prosecution immunity might be appropriate. The problem is that Trump is claiming an immunity for a universe of conduct that doesn't go anywhere near a national security or foreign affairs power. And so the challenge for the Supreme Court is whether or not this case is really a good fit for announcing the immunity that might be desirable from a good governance perspective.

KELLY: Let's talk timing because, of course, the election calendar is hanging over this. At a certain level, is the court's decision to hear this case already something of a win for Donald Trump, whatever the eventual ruling, in that it delays the start of a criminal trial?

KOVARSKY: Absolutely. Because if the delay of the trial is sufficient to push it past the election and then Trump wins the election, the case goes away.

KELLY: So give me a little bit of a preview of where this goes next. The court will hear arguments. It will rule. What are the next steps? How quickly could this case proceed?

KOVARSKY: It's hard to say exactly because there's a lot of unknowns. The court could decide the case pretty quickly or it could decide the case on the last day of the term, which is at the very end of June. Judge Chutkan has indicated that she's going to give the parties about three months before trial to prepare.

KELLY: This is the judge on the criminal trial.

KOVARSKY: Yeah. And if that three months runs from the end of June, then that puts us at the beginning of September. There's some time for jury selection, and then trial - let's say eight weeks. I think the most likely outcome if Trump loses is that the trial starts before the election, but might end after it.

KELLY: Which brings us back to the point you made that if he is elected president again, he has the power to make it go away.

KOVARSKY: That's right. He either could find a way to get his Justice Department to get rid of the prosecution while it sits on appeal in some way, or he could just self-pardon.

KELLY: Lee Kovarsky, law professor at the University of Texas, thank you very much.

KOVARSKY: Thank you so much for having me, Mary Louise. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Courtney Dorning has been a Senior Editor for NPR's All Things Considered since November 2018. In that role, she's the lead editor for the daily show. Dorning is responsible for newsmaker interviews, lead news segments and the small, quirky features that are a hallmark of the network's flagship afternoon magazine program.
Mary Louise Kelly is a co-host of All Things Considered, NPR's award-winning afternoon newsmagazine.