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Federal Court Rules Trump Has No Presidential Immunity. Aired 11-11:30a ET

Aired February 06, 2024 - 11:00   ET



ANNOUNCER: This is CNN breaking news.

JOHN BERMAN, CNN HOST: All right, the breaking news: A three-judge federal appeals panel unanimously ruled, just for releasing this ruling, 57 pages, that Donald Trump is not immune from criminal prosecution for his actions surrounding January 6.

The judges rejected Trump's claim that he cannot be prosecuted for charges that he plotted to overturn the 2020 election. They write -- quote -- "It would be a striking paradox if the president, who alone is vested with the constitutional duty to take care that the laws be faithfully executed, were the sole officer capable of defying those laws with impunity."

With us, chief legal affairs correspondent Paula Reid, senior Supreme Court analyst Joan Biskupic, also a team of the best lawyers on Earth.


BERMAN: First to Paula Reid.

Paula, tell us what the judges said here.

PAULA REID, CNN SENIOR LEGAL AFFAIRS CORRESPONDENT: So, here the D.C. Circuit Court rejecting former President Trump's argument that presidential immunity should shield him from the federal election subversion case.

Now, this outcome was very much expected. He lost on this issue at the trial court. And a month ago, when they held oral arguments on this question, the three judges hearing the case appeared quite skeptical of Trump's lawyers arguments that their client enjoyed near-absolute immunity for anything that he did while in office.

Let's listen to this quote now from today's opinion.

They say -- quote -- "For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as president no longer protects him against this prosecution."

Pretty clear there on what they think of his claims of presidential immunity. But this is also very much about timing. The Trump legal strategy, while they are litigating some legitimate constitutional questions, they are also trying to do anything they can to delay these federal cases until after the November 2024 election.

If Trump is reelected, he could through his attorney general likely make both of these cases go away. That is part of why they want to delay these. And this appeals court heard this case on an expedited schedule, but it still took them a month to issue this opinion.

But now they are making up for lost time, because they're saying that they're going to send this whole case back down to the trial court next week, unless the Supreme Court intervenes. Now, if the Supreme Court does not opt to intervene here, if this does go back to the trial court next week, that means that it is likely that this case could go to trial before November.

SARA SIDNER, CNN HOST: All right, I just -- this is happening very quickly, what they're asking for, the response very quickly.

What is going to happen next? In other words, how quickly might a case go forward, Jack Smith's case, in particular, go forward?

REID: So, first, we know that the Trump team is going to appeal. They issued a statement to our colleagues. They're saying they're going to appeal.

What's not clear is if they're going to take a sort of a midway step, which is to ask the full Circuit Court of Appeals to have a hearing en banc. So, all the judges in the circuit would hear the case.

Now, many people opt not to do that, because, if you lost with three judges, unlikely many times that you're going to win with the full circuit. But here again, it's about anything to delay. So they may try that. These three judges have laid out instructions if the Trump team does that, or they will appeal to the Supreme Court.

And they have set this deadline of February 12. If the Supreme Court does not intervene by February 12, the circuit is going to send this back down to the trial court. Now, after that, when can this find a place on the calendar? Well, possibly April. I mean, they're going to do a little time to prepare.

The case has been on hold. The judge has frozen all the filings and things that they need to do to prepare, but it could absolutely go this spring, possibly the summer if it goes back to Judge Tanya Chutkan next week.

BERMAN: All right, Paula, stand by.

I want to bring in our senior Supreme Court analyst, Joan Biskupic.

The Supreme Court now has to decide by February 12 whether they even want to take this up. What are the considerations here, Joan?

JOAN BISKUPIC, CNN SENIOR SUPREME COURT ANALYST: Well, first of all, I don't -- isn't that the deadline for when Donald Trump has to appeal? Because they can't really put a deadline on the Supreme Court itself.

The Supreme Court is going to...

BERMAN: Paula, can you clear that up?

REID: Yes. Yes.

BERMAN: Can you clear that up, Paula? Because the panel said, if they don't hear for the Supreme Court by February 12, they will kick this back down to the district court. Isn't that correct?

REID: You have given me some -- I'm going to pull up the exact language and we will just read it on air. So give me a second. I'm going to pull it actually out of their opinion.


As you look for that, Joan, the considerations that this court will make when deciding whether to rule here or whether even to hear arguments.



First of all, the law is on Jack Smith's side. The precedent on whether a president can be absolutely immune from criminal prosecution after leaving office, the general precedent is on his side. This lower court opinion is very forcefully written.


It was unanimous by three judges who embody everyone back from a George H.W. Bush appointee to two recent Biden appointees. So, it's a very solid opinion, as I said, very robustly written. So it could stand. The justices could say, we don't want part of it.

But the justices also -- and I -- as I like to remind people, it only takes four of the nine votes to grant a case. They could decide that this is a question that's so important they want to weigh in, or there might be some incentive to at least take some time to decide whether to weigh in. That's why I said it's important to know, is that February 12 deadline for Donald Trump or for the court?

I would think it's more for Donald Trump, but I don't know, because I hadn't seen that part of the order yet. But the justices could decide to back away. Look, they already have a very politically charged case that they're going to hear on Thursday involving Donald Trump and whether the 14th Amendment would bar him from being on state ballots because of an insurrectionist provision in that amendment.

So they're going to be in a very politically charged situation already. They don't like to be involved in any kind of election cases. And their past cases with Donald Trump have all been fraught and very difficult to resolve. Quite a challenge behind the scenes for Chief Justice John Roberts. But, in this case, they could decide this lower court opinion will

just stand or they could decide we're going to hear this case. And if they decide to hear this case, John and Sara, it could take several more weeks, if not months.

SIDNER: All right, Joan, you brought up the cases that they are going to take up, one of which has to do with whether he can be on the ballot.

But in those cases, there have been different opinions all over the place, which is natural for the Supreme Court to bring up.

Paula, I want to go back to you. Have you determined, looking through this document, whether or not this is a deadline on Donald Trump's attorney team and Donald Trump or whether it's a deadline on the Supreme Court that in six days there has to be a decision or a filing?

REID: Well, as we indicated, this is, of course, a deadline for former President Trump. This is a guard against him waiting three, four, five, six, maybe weeks, maybe even months...

SIDNER: Right.

REID: ... to file that appeal. And then, of course, the Supreme Court does what it wants when it wants. I was going to read the instructions from the circuit court, but it's pretty deep legalese. I'm going to spare our audience that.


REID: But the translation is, former President Trump has until next week to notify the court that he's appealed to the Supreme Court. If he does that, well, then they will just wait to see what the Supreme Court does.

And as I have said, the sources close to the Trump legal team said they would be surprised if the Supreme Court takes up this issue.

BERMAN: Go ahead, Joan.

BISKUPIC: Well, what will happen, though, there will be a little bit of time first, because the court will probably want to hear what Jack Smith says.

It's not that the court will immediately on February 12 give us an answer. What they will do, as Paula said, is, they will hear from Donald Trump, presumably by February 12, so that he can meet that deadline. And then, typically, what happens when the court is faced with this kind of petition or emergency action is ask the other side, what do you think? What do you think, Jack Smith?

And, presumably, Jack Smith is going to say, no, stay out. You have got a very sound, forcefully written decision from the D.C. Circuit. It hits all the key points of law. You do not have to intervene. But that process, in and of itself, is not going to take just a matter of hours or even days. That could that could take a week or two itself. BERMAN: Excellent.

All right. Paula Reid, Joan Biskupic, thank you both for explaining that so well.

With us now, Laura Coates, CNN anchor and chief legal analyst, Elie Honig, CNN senior legal analyst, and Tim Heaphy, former lead investigator for the January 6 Committee.

Laura, at a basic level here, this appeals panel has decided something very, very important, the line between what can be considered presidential actions and outside the scope of the presidency or, frankly, any official job. Why is that so important?

LAURA COATES, CNN SENIOR LEGAL ANALYST: Because it goes to the very heart of separation of powers and our system of checks and balances.

We do not want any particular actor to have carte blanche, this blank check to do whatever he or she wants to do and never be held to account. One must answer for their criminal behavior, particularly if one is in a position like a president, like a member of Congress. You can go down the line.

They took very good care in this opinion, though, to talk about, yes, we would like there to be immunity in certain instances as it relates to one's official behavior. They talked about judges for a great deal in terms of what their conduct is and how they could be answering for criminal behavior or allegations.

But, fundamentally, the question that Trump's team was asking and asking the court to find was that there was absolute immunity for conduct that occurred while in office, without the guardrails, without the parameters. And that would uproot our discussions about checks and balances.


This is a very striking opinion that goes to the very heart of how we view our democracy, which is why there are questions, as our colleagues have talked about, whether the Supreme Court will take it up or not. There is the law that is on the side of Jack Smith, but more importantly on the side of checks and balances.

And if we were to follow that thread, John, that suggests that a president has absolute immunity or could simply wait out the impeachment process, where, if they're not convicted and removed, would get away scot-free for whatever behavior, that would really upend our notion of our checks and our balances.

SIDNER: All right, Laura Coates, thank you for bringing us through that and these important points.

I want to look at the case as a whole. There are three main arguments that Donald Trump's team has put forward and they have just been one after the other eviscerated by this court.

Can you give us what those arguments are and what the response of this court is?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: This is a remarkably forceful ruling. I don't know if there's a good word in here for Donald Trump in 57 pages.

So the court takes down Donald Trump's argument in three parts. First of all, they say there is no absolute immunity for the president. It is not and cannot be that a president or former president can never be charged for anything he did from January 20 at noon when he took office to four years later when he left office. That would leave us in a state of lawlessness.

So they reject absolute immunity. Number two, they reject Donald Trump's argument that, well, even if there's limited immunity, I was within the boundaries. They say, oh, no, you were not. Not only do they say you were outside the boundaries. They say -- essentially, they say in this ruling, what you did was criminal.

SIDNER: Outside the boundaries of the job of president.


HONIG: Exactly, the boundaries of the job of president.

Trump's argument is, well, I was doing things. I was calling other public officials. I was coordinating election oversight. That's part of the president's job. What Jack Smith and this Court of Appeals panel say is, oh, no, what you were doing was well over that line, well out of bounds and indeed potentially arguably criminal.

The third argument that they reject is Donald Trump's sort of, let's say, inventive argument that a former president or president can only be indicted once he's been impeached by the House of Representatives and then convicted by the U.S. Senate. Only then can he be criminally indicted.

That was a creative construction that doesn't work for a lot of obvious reasons. I mean, this is why if you think back to the oral argument, when you had these bizarre scenarios. What if a president ordered the assassination of his rival?

SIDNER: Right.

HONIG: And the answer from Trump's team was a very unconvincing, only if he's been impeached first. So this court has rejected that.

And I just want to read the sentence that jumps out to me that I think really captures the tenor of this opinion. Here's what the court writes, the Court of Appeals -- quote -- "At bottom, former President Trump's stance would collapse our system of separated powers by placing the president beyond the reach of all three branches."

I mean, collapse our system of separation of powers is very strong language.

BERMAN: That is powerful language. Tim Heaphy, you worked with the January 6 Committee, which, in some

ways, was a year ahead of the entire legal prosecution process here. But be that as it may, this appeals court panel ruling saying that what Donald Trump did or is accused of doing, those actions are outside the scope of the presidency, outside official duties, how does that align with what you found as part of that committee and the recommendation, the prosecution recommendations, that you all made?


The Select Committee found that there's evidence of the violations of federal criminal statutes and recommended that the Department of Justice evaluate them. They did that and brought those charges, and have only developed more evidence beyond that which was available to us.

So it's not a surprise. It's, frankly, consistent with the facts and consistent with the Select Committee's view of the law, really, really thorough opinion.

I mean, I -- just looking at it quickly, it goes through every argument that the former president and his team raised and the policy behind those arguments, rejects them on the law and the broader policy, essentially rejects the president's, former president's argument that it would impede decision-making and deliberations of future presidents if he or she were subject to criminal liability and upholds the interest and accountability above that.

Very, very strong and forceful, from what I can tell in 57 pages, entirely consistent with the Select Committee's argument.

SIDNER: I do want to -- thank you, because, listening to -- we all watched the January 6 Committee hearings. And it is interesting going through this, because some of the language almost matches the way in which the arguments were made. But I do want to read something that's on page 40 of the 57 pages.


It says: "We cannot accept former President Trump's claim that a president has unbound authority to commit crimes. That would neutralize the most fundamental check on executive power."

Those are strong. I mean, they can't be any more clear, can they?

HONIG: They say to commit crimes. I mean, that's pretty darn close to the Court of Appeals saying he committed crimes. I mean, they say, we don't accept Trump's claim that he has unbounded authority to commit crimes.

Trump's not saying, I have unbounded authority to commit crimes. He's saying, what I did was not a crime. But, yes, that's a really stark...

BERMAN: He's actually saying both, though, isn't he?

HONIG: I guess you're right. He is saying both. He's saying, even if...


SIDNER: Even if I committed a crime...


HONIG: But, in any event, what I did was not a crime.

SIDNER: Right.

HONIG: But, I mean, again, there's no ambiguity in this ruling.

There's no, well, we can see it either way, or it'll be up to a finder of fact whether this is a crime, or another thing that the Court of Appeals could have done here, but did not do, and this would have been a big problem for Jack Smith, they could have remanded, sent this back down to the district court and say, hey, district court, you need to decide, was this inside or outside the scope of the job of the president?

Because that's a fact-intensive inquiry. That would have really sidetracked this. The Court of Appeals did not do that. They said, absolutely not. You were well outside the bounds and you don't have the authority to do what you did.

BERMAN: So, Laura Coates, we have this decision. We're poring through it. We're analyzing different aspects of it.

But once you have done that, what matters most next is whether or not the Supreme Court takes this up. And what will they base that decision on?

COATES: Right.

BERMAN: Or what should they base that decision on? I guess we never know what happens behind closed doors.



COATES: I was going to say, you want me to define the prerogative that they exercise, the Supreme Court? They will do what they'd like to do. And they do not want to weigh into political matters, as you can imagine.

But this really isn't a political matter. It is a question of presidential power and checks and balances. It really goes to the heart. Remember when we talked about the actual oral argument in the hearing? They talked a lot about Marbury v. Madison. Eyes probably glazed over. Others probably tried to Google what they were talking about.

All it really meant is that the Supreme Court has every right to weigh in and have judicial review of what they want to review. And that precisely could be this case. Why? Because it's asking a very novel question. Does absolute immunity apply to a president for all conduct that occurred while they were in office?

And we have never had a president who's been indicted in the past. And so this is really a matter of first impression. If the Supreme Court were to take up this case, they would have to look at the constraints and limitations of what means -- what it means to have an official act.

Because Trump will talk about this, and he has talked about this issue, in terms of what he has done leading up to January 6 and beyond as a matter of official duty. It was all because he's the president. Remember, the role of the president, as the head executive branch, is to enforce the laws as written.

If he believes that the laws were being violated somehow, he is suggesting that he was just trying to enforce them and ensure that the voter fraud laws, that laws relating to a free and fair election, were not actually violated.

The Supreme Court has looked at issues around official duties and actions in the past. Remember the Virginia governor in terms of whether he interacting with people about whether there were lobbyists or watches given or meetings that were set up, they had to first look at what it means to have official powers and duties.

They will likely look at those issues as well here. But I do think, at the end of the day, a Supreme Court is hard-pressed to find that there is no way to hold accountable an official for criminal behavior. That falls outside of the duty of one's official conduct that goes into the campaigning and the election side, which is no longer a part of a presidential duty.

But at the end of the day, this Supreme Court will have a lot to decide. And you asked the question earlier whether this Thursday's oral argument about the 14th Amendment and about Colorado might meander to that. I bet the Trump team will try. They want to have some kind of indication. Should I try? Do you want to hear from me?

Remember, February 12 is Monday. It's not a distant date in the future.

SIDNER: Right.

COATES: It is Monday.

SIDNER: Six days.

COATES: They will want some inkling.

SIDNER: Yes. Laura Coates, thank you so much for that.

As we're talking about the Supreme Court and what they may or may not do, you have got nine justices there, right? And if you tick down, because, Elie, I'm putting you on the spot -- if you take a look at these nine justices and you look across the board, can you tell us who you think may -- because you only need four, right, to take up a case.

HONIG: Right.

SIDNER: Who may be the four that take this case up, if they do it?

HONIG: Let's do a little head-counting here.


HONIG: Because that is the magic number, is four to take a case. I think Thomas and Alito, Justices Thomas and Alito, are the most likely to want to take this case.


I think the three liberal justices, Sotomayor, Kagan, and Justice Jackson, are unlikely to want to take this case. So the question is, are there two more who might join with Thomas and Alito in this scenario out of Justices Gorsuch, Kavanaugh, and the chief justice, John Roberts?

So it's going to be a play for who can get two of those three on their side in order to take this case? It's interesting to see how the consensus has evolved, my own view included. If you had asked me four months ago, I'm sure you did ask me four months ago, will the Supreme Court take this case, I think all of us would say they have to, of course. This is heavy-duty constitutional questions.

This is large. There's no Supreme Court precedent on it. But I think as the opinions have come back one by one, including today's, and they have been so clear-cut and so unambiguous, I think I'd move that percentage down to a Biskupician 50-50, where it could go really either way.


HONIG: And, by the way, if the Supreme Court does take this case, that could all but erase the chances of this getting tried before the election as a practical matter.


BERMAN: Tim Heaphy, you are still with us here. And I don't want to lose sight of what this is all about. This is about the federal charges against Donald Trump for attempting to interfere with the election.

Talk to us about what you think, what charge you think is the most likely to get a conviction. If this does get to court, what do you think has the best chance?

HEAPHY: Yes, to be clear, all this Supreme -- this D.C. Circuit opinion does is move it to trial, where the government has to prove beyond a reasonable doubt, has to convince 12 people beyond a reasonable doubt that the president, former president, specifically intended to obstruct, interfere with, or impede an official proceeding, the joint session.

The 1512(c) count, obstruction of an official proceeding, has always, to me, been the strongest, the one most clearly implicated by the conduct. That was the one that the Select Committee highlighted in our criminal referral. It's a very high standard in any criminal case, as it should be.

The Court of Appeals goes to great lengths to say those factual findings as to whether the elements of the crime have been satisfied will be up to a jury. They don't weigh in on the facts. Appellate courts generally do not.

Look, the evidence is there. We believed, the Select Committee believed that it was sufficient to merit the referral. The special counsel has gotten additional evidence that makes that potential showing even stronger. It's impossible to predict in a criminal trial, but there's certainly evidence that would sustain beyond a reasonable doubt a finding of guilt on that obstruction of an official proceeding statute.

BERMAN: All right, Tim Heaphy, Laura Coates, Elie Honig, all of you, please don't go too far, obviously a lot going on today that really could have a huge impact.

SIDNER: A huge impact.

More on the breaking news, of course, for you. And we will just reiterate, a D.C. Appeals Court has rejected forcefully former President Trump's claim of presidential immunity.

Coming up, how he is responding this morning -- and, yes, there has been a response -- and the political implications to this late- breaking ruling.



SIDNER: We begin with our breaking news at this half-hour mark, a huge loss for Donald Trump and his legal arguments that he is immune from criminal prosecution as a president.

A D.C. Appeals Court has unanimously ruled that Donald Trump isn't immune from criminal prosecution for his actions surrounding January 6.

CNN's Kristen Holmes is joining us now from Washington, D.C.

You have gotten some information from the Trump team just coming out as we got this 57-page ruling from the D.C. Appeals Court. What are they saying?

KRISTEN HOLMES, CNN NATIONAL CORRESPONDENT: Yes, Sara, the highlight here is that they are going to plan to appeal, which isn't that surprising. I'm going to read you part of the statement here and then we can kind

of go through it, writes: "If immunity is not granted to a president, every future president who leaves office will be immediately indicted by the opposing party. Without complete immunity, a president of the United States would not be able to properly function. Deranged Jack Smith's prosecution of President Trump for his presidential official acts is unconstitutional under the doctrine of presidential immunity and the separation of powers.

"Prosecuting a president for official acts violates the Constitution and threatens the bedrock of a republic. President Trump respectfully disagrees with the D.C. Circuit's decision and will appeal it in order to safeguard the presidency and the Constitution."

Now, our colleague Katelyn Polantz points out that the appeals court actually addresses this in their ruling, saying at one point that it was clear that future -- excuse me -- former presidents were aware that they could be charged, saying past presidents have understood themselves to be subject to impeachment and criminal liability.

So, clearly, they actually addressed this because, because this has been in long term an argument of Donald Trump's. The other thing to point out here is, you noted that this is a loss. It is a legal loss, but it's also a political loss as well.

Remember, last week, Judge Chutkan took this case, the trial, the January 6 case off of the calendar. That was a huge win for Donald Trump and their team. Their strategy here has been to delay, delay, delay to push these cases hopefully beyond the 2024 election in November.

Now, because of this and because of the tight turnaround that they were given by the court, which is February 12, that could put that trial back on the calendar. So they are going to -- we're not sure exactly what their appeal process is going to look like, but they're going to do whatever they can to try and stay this, to try and delay this.