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The Supreme Court will consider Trump's immunity from criminal prosecution


Donald Trump has become the first former U.S. president found guilty of felony charges this week, and he is running for reelection as he faces even more court cases. This unfolds during a time when ethics questions are raised at the U.S. Supreme Court as it considers Donald Trump's immunity from criminal charges in connection with the January 6 insurrection at the Capitol. Stephen Vladeck is a professor of law at the University of Texas Austin, and he joins us now. Thanks so much for being with us.

STEPHEN VLADECK: Thank you for having me.

SIMON: There are four criminal cases against Trump - one in D.C. connected to January 6, one in Florida on his refusal to return classified documents. There's the election interference case in Georgia and then the hush money case, which had a conviction this week in New York. Why was the New York case the first and only one to reach trial and verdict?

VLADECK: Yeah, I mean, I think the reasons are multifaceted. I mean, one, with the January 6 case in D.C., we had and are still waiting for the appeal to the U.S. Supreme Court, which knocked the original trial date off of its baseline. Two, in the Florida stolen documents case, the district judge there has been moving remarkably slowly. And then I think the Georgia case is perhaps the most complicated of them. So, you know, in New York, you had a combination of no ability to take pretrial appeals to the Supreme Court, a judge who was not trying to slow things down, and a case that was perhaps not as complicated as the others, all culminating in the verdict that we received this week.

SIMON: Mr. Trump's lawyer says that they will appeal the verdict. Anyone can appeal the case. How do you see the possible grounds?

VLADECK: Most of the arguments that I suspect President Trump's lawyers would gravitate toward are arguments about New York state law. You know, usually, it's the state courts that get the last word on questions of state law. It's hard to see what federal law questions President Trump might get the Supreme Court to eventually weigh in on in this case. And if it remains the purview of the New York State courts, that probably doesn't bode well.

SIMON: Supreme Court is considering two cases that pertain to Donald Trump - there's the obstruction charges that stemmed the events of January 6 brought by federal prosecutors and then immunity, the question of if a former president can stand trial on charges committed while they were president. What are you watching for in these cases?

VLADECK: The first thing to be watching for in these cases is that it's now June, and we don't have them yet. For those who were hoping that the Supreme Court would decide those cases, both of which were argued back in April with any expedition - I think we haven't seen that.

The second is, I think, especially in the immunity case, the big question is going to be if the Supreme Court says, we think that there has to be more analysis of the specific acts that President Trump is being charged with and whether any of those fall on the immunity side of the line.

I think then the real question becomes the timing. You know, can the trial judge resolve those issues relatively quickly for a trial before the election? Or are we going to see this case really get kicked off until after the election?

In the other case called Fischer, you know, I think the reality is the Supreme Court is likely to narrow the scope of the obstruction statute that the government has used in hundreds of the January 6 cases. The irony there is that the way the Supreme Court is most likely to narrow it would be to require that defendants have had some interest in some object of basically distorting the record, of manipulating the evidence that Congress was relying upon when it certified Joe Biden's electoral college victory.

Given that part of the charge against foreign President Trump is his involvement in these fraudulent elector schemes, that actually might be a bar that can be more easily met in Trump's case than in the case of most of the other January 6 defendants.

SIMON: How could you have so many cases that are almost 4 years old, on which the American people are depending for answers, not come to trial?

VLADECK: I think the reality is sort of twofold. First, you know, our system is designed in lots of ways, big and small, to give lots of procedural benefits of the doubt to criminal defendants, whether they are former presidents of the United States or, you know, folks we've never heard of. And I think the second and related part is because, in this case, the criminal defendant is a former president, he has available to him arguments that the typical criminal defendant would not have, and that has the effect of slowing down so many of these cases.

SIMON: We have a Supreme Court that's obviously under scrutiny for some reservations people have about ethics, particularly of two justices. You suggested in your Substack, One First, that Congress could create a position for an inspector general. How would that work? And is there a chance that Congress would vote to do that?

VLADECK: That - I don't think there's much of a chance that this Congress will vote to do it, but I do think it's a conversation worth having because, you know, I think we've lost sight to a large degree of how much Congress has historically regulated the Supreme Court, everything from its budget to its docket to, you know, other officers of the court.

So, you know, I think with an inspector general, this would be a relatively low-hanging fruit where you wouldn't even need to impose new ethics rules or new financial disclosure rules. You would just have someone who was appointed by the court whose job was monitor compliance, to report on noncompliance. I think - would be both a positive incentive for the justices to behave better and a mechanism in the case of a justice who really is behaving badly for informing the public and if necessary, the House of Representatives should it decide to pursue impeachment proceedings.

SIMON: But there's no chance of this happening before November.

VLADECK: Not before November - but I do think that, you know, there's already been more movement on this front than I think folks might realize. The original proposals for an Article 3 Inspector General were actually introduced by Republican members of Congress over the past decade. So, you know, I think the more that we talk about the court as an institution in these sort of procedural and structural terms and the less it's about specific decisions, I actually think there's more opportunity to build consensus among folks who might not otherwise agree about what the Supreme Court's up to that accountability is a good thing, that oversight is a healthy thing, that, you know, even though we have unelected judges in this country to protect against the tyranny of the majority, we also have the democratically elected branches to protect against the tyranny of unelected judges.

SIMON: Stephen Vladeck is a professor of law at the University of Texas. Thank you so much for being with us.

VLADECK: Thank you for having me. Transcript provided by NPR, Copyright NPR.

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Scott Simon
Scott Simon is one of America's most admired writers and broadcasters. He is the host of Weekend Edition Saturday and is one of the hosts of NPR's morning news podcast Up First. He has reported from all fifty states, five continents, and ten wars, from El Salvador to Sarajevo to Afghanistan and Iraq. His books have chronicled character and characters, in war and peace, sports and art, tragedy and comedy.