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Does Immunity Love Company? · Politix

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SPEAKER_01: You know,
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SPEAKER_01: Congress can enact legislation that says,
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SPEAKER_01: well,
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SPEAKER_01: here's what we here's what we consider the line between official and unofficial
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SPEAKER_01: acts to be.
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SPEAKER_01: And here's the kind of proof that we think courts should be able to hear.
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SPEAKER_01: And here's what we think the burden of proof should be to overcome the presumption.
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SPEAKER_01: And, you know, and put it to the Supreme Court to declare that unconstitutional.
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SPEAKER_00: Hey, everyone, you're listening to a free preview of the Politics Podcast.
0:28
SPEAKER_00: With Matt on vacation this week and the news blowing up,
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SPEAKER_00: I wanted to bring listeners a special conversation about the Supreme Court's
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SPEAKER_00: decision that presidents are immune from prosecution for their official conduct.
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SPEAKER_00: Beyond sparing Donald Trump a criminal trial for trying to overthrow the 2020 election,
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SPEAKER_00: which was presumably the whole point,
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SPEAKER_00: the decision has extremely far-reaching implications for a second Trump term if he wins,
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SPEAKER_00: and in theory,
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SPEAKER_00: for the remainder of Joe Biden's time in office.
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SPEAKER_00: It fundamentally reconceives the presidency in some ways,
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SPEAKER_00: at least in the hands of rule breaking and law breaking presidents,
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SPEAKER_00: if not more generally.
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SPEAKER_00: This week, we'll discuss that decision with Don Verrilli.
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SPEAKER_00: Some of you may remember Don as the Obama administration solicitor general.
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SPEAKER_00: He successfully defended the Affordable Care Act from life or death challenges in
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SPEAKER_00: the Supreme Court multiple times.
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SPEAKER_00: And with a granular understanding of the president's power,
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SPEAKER_00: he can help us understand what the ruling means in the near and short term.
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SPEAKER_00: I hope you enjoy the conversation.
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SPEAKER_00: And if you want to hear the whole thing, you can upgrade your subscription to paid at politics.fm.
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SPEAKER_00: Hey, everyone, welcome to the politics podcast.
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SPEAKER_00: I'm Brian Boyler.
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SPEAKER_00: Matt's on vacation this week, just in time for the news to explode.
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SPEAKER_00: And just days after the first presidential debate,
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SPEAKER_00: which has plunged Democrats into a crisis of confidence,
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SPEAKER_00: the Supreme Court has intervened to declare that presidents have absolute immunity
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SPEAKER_00: from criminal prosecution for any actions they take with their exclusive and
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SPEAKER_00: plenary powers and even presumptive immunity for their other official acts.
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SPEAKER_00: For the last several months,
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SPEAKER_00: we've viewed this case mainly with an eye to its impact on the criminal prosecution
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SPEAKER_00: of Donald Trump for trying to overturn the 2020 election.
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SPEAKER_00: But that's only because we thought the Supreme Court might engage in relatively small mischief.
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SPEAKER_00: They would delay that trial,
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SPEAKER_00: but not really radically alter the balance of power between the branches of government.
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SPEAKER_00: They instead went much, much further.
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SPEAKER_00: So now the fact that there won't be a January 6th trial before the election feels a
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SPEAKER_00: bit like an afterthought and concerns about what Donald Trump might do with his new
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SPEAKER_00: forms of immunity have become front and center.
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SPEAKER_00: But of course, he first has to win the election.
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SPEAKER_00: And unless and until he does,
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SPEAKER_00: the first person to experience the new unbounded presidency will be Joe Biden.
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SPEAKER_00: In remarks at the White House Monday, Biden seemed to disavow these new powers.
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SPEAKER_00: But it may not be as binary as Biden laid out.
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SPEAKER_00: My guest for this episode is Don Verrilli.
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SPEAKER_00: Don worked in the White House Counsel's Office and as Solicitor General in the Obama administration.
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SPEAKER_00: He knows well how the law constrained the president before the immunity decision
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SPEAKER_00: and how it's likely to change the presidency going forward.
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SPEAKER_00: And thus what we can expect when the president is an ethical person like Joe Biden
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SPEAKER_00: or an unethical one like Donald Trump.
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SPEAKER_00: Don, thanks so much for joining me.
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SPEAKER_00: It's a real pleasure to have you on the show.
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SPEAKER_01: Good to be here, Brian.
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SPEAKER_00: So as I just mentioned,
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SPEAKER_00: you had jobs in the Obama White House that were,
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SPEAKER_00: or in the Obama administration,
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SPEAKER_00: I should say,
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SPEAKER_00: that were implicitly and maybe even explicitly influenced by the belief that the
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SPEAKER_00: president could get in trouble for breaking the law.
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SPEAKER_00: Can you put yourself into your former shoes and talk about how the work of senior officials like that
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SPEAKER_00: would have been different if you had any idea that,
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SPEAKER_00: surprise,
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SPEAKER_00: the Constitution says the president can't be prosecuted for official acts?
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SPEAKER_01: Yeah.
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SPEAKER_01: So,
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SPEAKER_01: you know,
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SPEAKER_01: I think in the White House that I worked in and the president I worked with when I
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SPEAKER_01: was Solicitor General wouldn't have made any difference at all.
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SPEAKER_01: And I think that's because if you think of yourself as a responsible steward of the
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SPEAKER_01: constitutional democracy and the constitutional order,
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SPEAKER_01: you're not going to be thinking that way.
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SPEAKER_01: You're going to be thinking, well, I've got to operate within the constraints of the law.
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SPEAKER_01: I may push the boundaries sometimes, but
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SPEAKER_01: but that's how we go about making decisions.
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SPEAKER_01: Can we find a reasonable basis in the laws that exist now to take the step that we want to take?
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SPEAKER_01: And so I think for a presidency like that,
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SPEAKER_01: I don't think that this kind of an immunity,
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SPEAKER_01: and it's just pretty much what President Biden said Monday night,
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SPEAKER_01: that this kind of an immunity ruling is going to make any real difference in the
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SPEAKER_01: way people think.
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SPEAKER_01: Yeah.
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SPEAKER_01: Yeah.
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SPEAKER_01: If you think that responsible stewardship of the Constitution of Democracy is a
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SPEAKER_01: sucker's game,
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SPEAKER_01: then this is going to wildly expand your ballot.
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SPEAKER_01: Because this is just basically,
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SPEAKER_01: at least on my first reading of it,
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SPEAKER_01: pretty much an invitation to urbanism.
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SPEAKER_01: That you can make all kinds of deals and all kinds of demands,
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SPEAKER_01: engage in all kinds of favoritism without really,
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SPEAKER_01: if you're the president,
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SPEAKER_01: without really worrying.
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SPEAKER_01: that you're going to be subsequently able to be convicted for it.
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SPEAKER_01: So I really think the effect of this decision comes down to a question of how you
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SPEAKER_01: view your responsibilities as president.
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SPEAKER_00: Go ahead, please finish your thought.
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SPEAKER_01: Yeah,
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SPEAKER_01: and I was just going to link it up with,
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SPEAKER_01: of course,
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SPEAKER_01: one of the other big developments from this term was the further wrecking ball
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SPEAKER_01: activity of the administrative state in cases like Loper Bright and
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SPEAKER_01: Corner Post and Jarcasey,
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SPEAKER_01: et cetera,
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SPEAKER_01: where the administrative state is being systematically blown apart by actions of
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SPEAKER_01: the Supreme Court.
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SPEAKER_01: And so I think there,
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SPEAKER_01: you know,
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SPEAKER_01: if you kind of put these two things together,
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SPEAKER_01: that's the if you're a responsible steward and you're actually trying to use the
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SPEAKER_01: power of the executive branch to do some good in the world on climate change or
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SPEAKER_01: student loans,
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SPEAKER_01: poverty generally,
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SPEAKER_01: whatever it is.
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SPEAKER_01: you know, you're really being, this is really weakening you.
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SPEAKER_01: But if you're,
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SPEAKER_01: you know,
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SPEAKER_01: if you're in that second category of people who think that all that's a sucker's game,
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SPEAKER_01: you know,
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SPEAKER_01: maybe that's going to affect you a little bit at the margins,
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SPEAKER_01: you know,
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SPEAKER_01: make it a little,
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SPEAKER_01: sometimes some of the things you might want to do,
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SPEAKER_01: like Trump with DACA being struck down by the Supreme Court,
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SPEAKER_01: maybe,
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SPEAKER_01: you know,
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SPEAKER_01: it's going to affect you at the margins,
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SPEAKER_01: but really not going to have that much effect on you because you're not going to be
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SPEAKER_01: using
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SPEAKER_01: the administrative state, the executive power to do very much, very much good anyway.
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SPEAKER_01: So it's like,
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SPEAKER_01: to me,
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SPEAKER_01: it's like that the combination of those two things,
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SPEAKER_01: you know,
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SPEAKER_01: powerfully weakens presidencies that are trying to use the power of the office in
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SPEAKER_01: the way that it should be used and strengthens presidencies that want to abuse the
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SPEAKER_01: powers of the office.
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SPEAKER_00: I want to put a pin in the, in the,
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SPEAKER_00: Regulation question,
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SPEAKER_00: the administrative state question,
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SPEAKER_00: the ambiguity surrounding Chevron deference,
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SPEAKER_00: which is now gone.
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SPEAKER_00: And focus on what you said at first, that in an administration like Obama's or Biden's where there is –
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SPEAKER_00: like a generalized respect for the rule of law and for what the proper boundaries
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SPEAKER_00: on presidential power are,
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SPEAKER_00: that even operating in this new realm wouldn't affect how those administrations
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SPEAKER_00: were run.
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SPEAKER_00: Does that mean that you see the immunity decision as creating a realm of exclusive
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SPEAKER_00: or greenlighting a realm of exclusively unethical and criminal conduct?
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SPEAKER_00: Or is there anything in the decision that would make an ethical lawyer or advisor
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SPEAKER_00: to the president unethical?
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SPEAKER_00: Think, you know, I don't like this ruling.
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SPEAKER_00: It really makes the president into a king.
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SPEAKER_00: But but this actually makes the job easier,
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SPEAKER_00: this aspect of it,
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SPEAKER_00: because now I don't have to worry about dilatory this or bad faith that we can just act.
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SPEAKER_00: Is there any sense in which Biden can use it for for good?
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SPEAKER_01: Well, I don't know if you'll think this is for good.
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SPEAKER_01: I'm not sure I think it's for good, but there are a couple of things.
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SPEAKER_01: For one,
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SPEAKER_01: you know,
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SPEAKER_01: one of the points that the chief justice makes in his opinion is that one thing
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SPEAKER_01: this immunity will do is prevent the enfeebling of the presidency.
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SPEAKER_01: But because presidents won't have to worry that once they leave office,
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SPEAKER_01: that their successor is going to prosecute them right and left.
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SPEAKER_01: And therefore, they'll be able to act more resolutely, more boldly, et cetera.
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SPEAKER_01: So,
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SPEAKER_01: you know,
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SPEAKER_01: if you believe that that he's right about that,
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SPEAKER_01: then I think perhaps you can say that there is something that strengthens the
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SPEAKER_01: exercise of legitimate power.
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SPEAKER_01: And then there are other you know, the other thing is, you know, a good example where this comes up.
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SPEAKER_01: I mean, when I observed it during my time in the government.
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SPEAKER_01: is presidents have to make some really hard decisions,
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SPEAKER_01: for example,
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SPEAKER_01: hard decisions about the use of lethal force abroad against terrorists.
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SPEAKER_01: And there are laws that constrain when that lethal force can be used,
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SPEAKER_01: and some of them have criminal consequences.
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SPEAKER_01: And so you could look at this and say, well, now when the president makes a decision
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SPEAKER_01: to exercise lethal force, they're going to feel less constrained.
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SPEAKER_01: And maybe that's a good thing because maybe these laws were exercising too much constraint.
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SPEAKER_01: Of course,
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SPEAKER_01: the reason I said at the outset that I'm not so sure that's a good thing is that it
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SPEAKER_01: seems to me you
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SPEAKER_01: when they're making decisions that are as consequential as using lethal force abroad against terrorists.
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SPEAKER_01: And so,
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SPEAKER_01: you know,
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SPEAKER_01: I suppose the best you can say is that in those difficult circumstances,
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SPEAKER_01: presidents won't feel the same kind of pressure that they might now feel to be more cautious.
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SPEAKER_01: But again,
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SPEAKER_01: that's a value judgment that maybe you want presidents to be less cautious in those circumstances.
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SPEAKER_01: I'm not sure that's right,
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SPEAKER_01: but that's the best I can do in arguing for what I could see as legitimate benefits.
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SPEAKER_00: Okay, I guess...
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SPEAKER_00: I'm glad you cited that example because there's an example where I think most of
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SPEAKER_00: the people listening would be like,
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SPEAKER_00: we don't really want the president to be just unbound to drone strike whomever,
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SPEAKER_00: whenever abroad.
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SPEAKER_00: Because like so much of the,
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SPEAKER_00: the,
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SPEAKER_00: the discourse since the decision was handed down has centered around these actually
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SPEAKER_00: since the oral argument has centered around these extreme scenarios involving
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SPEAKER_00: presidential authority to kill essentially,
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SPEAKER_00: right?
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SPEAKER_00: Like there's,
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SPEAKER_00: the doom scenarios of SEAL Team 6 assassinations and things like accepting bribes
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SPEAKER_00: in exchange for pardons or offering pardons in exchange for bribes.
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SPEAKER_00: But I'm wondering if there are realms where presidential decisions,
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SPEAKER_00: they aren't either obviously legal or obviously illegal.
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SPEAKER_00: And so we're operating in the gray area and there's criminal penalties attached to
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SPEAKER_00: um, violating the law in this realm.
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SPEAKER_00: Like if,
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SPEAKER_00: if you're in the gray area and you turns out you're on the wrong side of the law,
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SPEAKER_00: you run the risk of a criminal penalty.
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SPEAKER_00: Is it really only things like drone?
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SPEAKER_01: No, I can think of one other thing.
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SPEAKER_01: I'm just sitting here.
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SPEAKER_01: Um,
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SPEAKER_01: spending money that may or may not have been appropriated.
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SPEAKER_01: There's a statute called the Anti-Deficiency Act,
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SPEAKER_01: which has criminal penalties attached to it if the executive branch spends money
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SPEAKER_01: that Congress hasn't appropriated.
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SPEAKER_01: Sometimes there are hard calls about whether you can read a statute as authorizing
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SPEAKER_01: the expenditure of money on a particular federal program.
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SPEAKER_01: And this is the kind of thing that's going to come up in social benefit programs in particular,
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SPEAKER_01: perhaps under the Affordable Care Act,
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SPEAKER_01: under Medicaid,
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SPEAKER_01: et cetera,
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SPEAKER_01: Medicare.
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SPEAKER_01: And so,
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SPEAKER_01: you know,
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SPEAKER_01: maybe you could say in that situation that presidents will have a freer hand to
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SPEAKER_01: make more aggressive decisions than they might otherwise make about spending money.
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SPEAKER_01: You know,
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SPEAKER_01: if they think they've got a plausible legal basis reading the statutes that the
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SPEAKER_01: expenditure of the money has been authorized and they'll go do it.
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SPEAKER_01: So maybe they'll feel freer there to make those kinds of judgments.
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SPEAKER_01: And maybe you could make an argument that that's for the good,
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SPEAKER_01: you know,
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SPEAKER_01: that at least presidents who have the same point of view I do would be out there
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SPEAKER_01: likely spending that kind of money to try to advance social welfare in various ways.
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SPEAKER_01: So maybe you could,
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SPEAKER_01: you know,
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SPEAKER_01: maybe that's a place where we're not talking about drone strikes,
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SPEAKER_01: but the president would have more of a free hand,
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SPEAKER_01: less worry about possible criminal consequences down the line.
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SPEAKER_00: Okay, let's take a quick break here.
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SPEAKER_00: And then the other side talk about how the decision acts with the court's other
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SPEAKER_00: recent jurisprudence,
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SPEAKER_00: which we already kind of alluded to.
13:34
SPEAKER_00: You've been listening to a free preview of the Politics Podcast.
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SPEAKER_00: If you've enjoyed the conversation thus far and want to hear the whole thing,
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