Constitutional law experts John Yoo and Smita Ghosh discuss President Trump's immunity from prosecution, exploring historical precedents, legal arguments, obstruction charges, Sarbanes-Oxley implications, and the impact on January sixth cases. They highlight the need for timely resolution in legal cases to avoid influencing election outcomes.
Presidential criminal immunity lacks legal basis and contrasts with legislative immunity.
Impeachment's historical intent focused on removal, not exempting criminal prosecution post-office.
Legal integrity demands aligning interpretations with constitutional text to ensure presidential accountability.
Deep dives
President Trump's Arguments for Presidential Immunity
President Trump argues for absolute immunity from federal criminal prosecution based on constitutional text, claiming presidents already have civil immunity. His functional argument questions the stability of the country if presidents could be prosecuted after their term. However, experts like John Yu find these arguments rely more on policy than legal foundations.
Text and History of the Impeachment Clause
The discussion delves into the impeachment clause, analyzing the text's stance on post-office indictment. John Yu argues against absolute immunity based on historical context and Federalist Papers, suggesting that impeachment aimed solely at removal without impacting potential criminal prosecution.
Scholars' Rejection of Broad Presidential Immunity
Scholars reject the broad claim of presidential criminal immunity based on historical evidence and constitutional interpretation. There is no explicit immunity grant for presidents in the Constitution, contrasting the immunity provided to legislators. The Constitutional Accountability Center's brief underscores that the framers aimed to ensure presidential accountability amid a system avoiding monarchical powers.
Inadequacy of Policy Arguments for Immunity
Policy arguments for immunity face scrutiny, as courts and scholars question the functional reasons behind broad presidential immunity. The focus shifts towards the necessity of aligning legal interpretations with constitutional text and historical context, rather than policy-driven approaches. The discussion emphasizes the importance of upholding presidential accountability and avoiding unchecked executive powers.
Interpreting the Sarbanes-Oxley Obstruction Provision
The Sarbanes-Oxley obstruction provision becomes a focal point, with the debate centering on a broad versus narrow interpretation. The potential impact on January 6 prosecutions and President Trump's defense strategies are evaluated, hinting at the court's leaning towards narrowing white-collar criminal law interpretations.
Chief Justice Roberts and the court may opt to reject absolute immunity claims but defer substantive legal issues for future cases. This approach allows for deeper scrutiny of charges and legal interpretations without prematurely influencing political landscapes. The emphasis remains on maintaining legal integrity while avoiding hasty decisions with far-reaching repercussions.
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.
