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Special Counsel's Lawyer: Trump Is Not Immune From Prosecution; Supreme Court Case May Not Resolve Trump Immunity Once And For All. Aired 11:30a-12p ET

Aired April 25, 2024 - 11:30   ET




MICHAEL DREEBEN, ATTORNEY DR SPECIAL COUNSEL JACK SMITH: The joint session certifies the vote. And the president doesn't have an official role in that proceeding. So, it's difficult for me to understand how there could be a serious constitutional question about saying, you can't use fraud to defeat that function. You can't obstruct it through deception. You can't deprive millions of voters of their right to have their vote counted for the candidate they chose.

UNIDENTIFIED MALE: Thank you, Counsel. Justice Thomas? Justice Alito?

SAMUEL ALITO, U.S. SUPREME COURT ASSOCIATE JUSTICE: Can we just briefly review the layers of protection that you think exist? And I'm going to start with what the D.C. Circuit said. So, the first layer of protection is that attorneys general and other Justice Department attorneys can be trusted to act in a professional and ethical manner, right?


ALITO: How robust is that protection? I mean most of the -- the vast majority of attorneys general and Justice Department attorneys, and we both served in the Justice Department for a long time, our honorable people, and they take their professional ethical responsibilities seriously. But there had been exemptions, right, both among attorneys general and among federal prosecutors?

DREEBEN: There have been rare exceptions, Justice Alito. But when we're talking about layers of protection, I do think this is the starting point. And if the court has concerns about the robustness of it, I would suggest looking at the charges in this case. They --

ALITO: Well, I'm going to talk about this in the abstract because what is before us, of course, does involve this particular case, which is immensely important. But whatever we decide is going to apply to all future presidents. So, as for attorneys general, there have been two who were convicted of criminal offenses while in office. There were others. A. Mitchell Palmer is one that comes to mind, who is widely regarded as having abused the power of his office. Would you agree with that? DREEBEN: I would, but they are two officials in a long line of attorneys generals who did not -- and in Departments of Justice that are staffed by multiple people who do adhere to their office. And, Justice Alito, if I could just -- the point that I wanted to make about this case does go to the general proposition. The allegations about the misuse of the Department of Justice to perpetuate an election fraud show exactly how the Department of Justice functions in the way that it is supposed to. The petitioner is alleged to have tried to get the Department of Justice to send fraudulent letters to the states to get them to reverse electoral results.

ALITO: Yes, I understand --

DREEBEN: The Department of Justice pushed --

ALITO: I understand -- I understand that, Mr. Dreeben. But as I said, this case will have effects that go far beyond this particular prosecution. So, moving on to the second level of protection that the D.C. Circuit cited, federal grand juries will shield former presidents from unwarranted indictments. How much protection is that?

DREEBEN: Well, it affords two levels of protection. One is the probable cause finding, which requires evidence. I think some of the fears about groundless prosecutions aren't supported by evidence, and they're not going to get out of the starting game.

ALITO: I mean, there are -- there's the old saw about indicting a ham sandwich --

DREEBEN: Yes, but I think, Justice Alito --

ALITO: I mean, you had a lot of experience in the Justice Department. You come across a lot of cases where the U.S. attorney or another federal prosecutor really wanted to indict a case, and the grand jury refused to do so.

DREEBEN: There are such cases.

ALITO: Yes, there are -- you know.

DREEBEN: Yes. But I think that the other --

ALITO: Every once in a while, there's an eclipse too.

DREEBEN: Well, I think that that's -- for the most reason is prosecutors have no incentive to bring a case to a grand jury and secure an indictment where they don't have evidence to prove guilt beyond a reasonable doubt. It's self-defeating.

ALITO: All right, then the third level was that former presidents enjoy all the protections afforded all criminal defendants, right? We've discussed that. And that may be true at the end of the day, but a lot can happen between the time when an indictment has returned and the time when the former president finally gets a vindication, perhaps on appeal. Isn't that correct? DREEBEN: It is correct, Justice Alito. But I think that we should also consider the history of this country. As members of the court have observed, it's baked into the Constitution that any president knows that they are exposed to potential criminal prosecution.

My friend says after impeachment and conviction, we don't read the impeachment judgment clause that way, but we are -- it's common ground that all former presidents have known that they could be indicted and convicted. And Watergate cemented that understanding. The Watergate smoking gun tape involved President Nixon and H.R. Halderman talking about and then deciding to use the CIA to give a bogus story to the FBI to shut down a criminal investigation.


ALITO: I mean, Mr. Sauer and others have identified events in the past where presidents have engaged in conduct that might have been charged as a federal crime. And you say, well, no, that's not really true. This is page 42 of your brief. So, what about President Franklin D. Roosevelt's decision to intern Japanese Americans during World War Two? Couldn't that have been charged under 18 U.S.C. 241, conspiracy against civil rights?

DREEBEN: Today? Yes, given this court's decision in Trump versus the United States in which the -- you know, Trump versus Hawaii, excuse me, where the court said Korematsu was overruled. And President Roosevelt made that decision with the advice of his attorney general, that's a layer --

ALITO: Is that really true? I thought -- I thought Attorney General Bedell thought that there was really no threat of sabotage as to J. Edgar Hoover.

DREEBEN: So, I think that there is a lot of historical controversy, but it underscores that that occurred during wartime. It implicates potential commander-in-chief concerns. Concerns about the exigencies of national defense that might provide, an as-applied article to challenge at the time, I'm not suggesting today. But the idea that a decision that was made and ultimately endorsed by this court, perhaps wrongly in the Korematsu case, would support criminal prosecution under 241, which requires under United States v. Linear that the right had been made specific so that there is notice to the president. I don't think that would have been satisfied.

ALITO: All right. Well, we could go through other historical examples. I won't do that. Let me just touch briefly on a couple of other things. One is the relevance of advice of counsel, and I wasn't clear what your answer is. So, if the president gets advice from the attorney general that something is lawful, is that an absolute defense?

DREEBEN: Yes. I think that it is under the principle of entrapment by estoppel. This is a due process doctrine that we referred to in our brief, or reply brief in Garland v. Cargill, this term on page 19, where we cited the authority of this court that if an authorized government representative tells you that what you're about to do is lawful, it would be a root violation of due process to prosecute few for that.

ALITO: I mean, will not -- won't that give presidents an incentive to be sure to pick an attorney general, who can -- will -- who will reliably tell the president that it is lawful to do whatever the president wants to do if there's any possibly conceivable argument in favor of it?

DREEBEN: So, I think a constitutional structure protects against that risk. The president nominates the attorney general, and the Senate provides advice and consent. And these are the sorts of structural checks that have operated for 200 years to prevent the kind of abuses that my friend fears going forward as a result of this once-in-history prosecution.

ALITO: On the question of whether a president has the authority to pardon himself, which came up earlier in the argument, what's the answer to that question?

DREEBEN: I don't believe the Department of Justice has taken a position. The only authority that I'm aware of is a member of the Office of Legal Counsel wrote in a memorandum that there is no self- pardon authority. As far as I know, the department has not addressed it further. And of course, this Court had not addressed it either.

ALITO: Well, when you address that question before us, are you speaking in your capacity solely as a member of the special counsel's team or are you speaking on behalf of the Justice Department, which has special institutional responsibilities?

DREEBEN: I am speaking on behalf of the Justice Department. We're representing the United States.

ALITO: Now, how -- don't you think we need to know the answer to -- at least to the Justice Department's position on that issue in order to decide this case? Because the president has the authority to pardon himself before leaving office, and the D.C. Circuit is right that there is no immunity from prosecution. Won't the predictable result be that presidents on the last couple of days of office are going to pardon themselves from anything that they might have been conceivably charged with committing?

DREEBEN: I really doubt that, Justice Alito. And you know, sort of presupposes a regime that we have never had except for President Nixon and as alleged in the indictment here, presidents who were conscious of having engaged in wrongdoing and seeking to shield themselves. I think the political consequences of a president who asserted a right of self-pardon, that has never been recognized, that seems to contradict a bedrock principle of our law that no person shall be the judge in their own case, those are adequate deterrence, I think, so that this kind of dystopian regime is not going to evolve.


ALITO: All right. Let me end with just a question about what is required for the functioning of a stable democratic society, which is something that we all want. I'm sure you would agree with me that a stable democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully if that candidate is the incumbent.

DREEBEN: Of course.

ALITO: All right. Now, if a -- an incumbent who loses a very close hotly contested election knows that a real possibility, after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy? And we can look around the world and find countries where we have seen this process where the loser gets thrown in jail.

DREEBEN: So, I think it's exactly the opposite, Justice Alito. There are lawful mechanisms to contest the results in an election. And outside the record, but I think of public knowledge, a petitioner and his allies filed dozens of electoral challenges.

And in my understanding is lost all but one that was not outcome determinative in any respect. There were judges that said in order to sustain substantial claims of fraud that would overturn an election result that's certified by a state, you need evidence, you need proof. And none of those things were manifested.

So, there was an appropriate way to challenge things through the courts with evidence. If you lose, you accept the results. That has been the nation's experience. I think the court is well familiar with that.

ALITO: Sure. Thank you.

UNIDENTIFIED MALE: Justice Sotomayor?

SONIA SOTOMAYOR, U.S. SUPREME COURT ASSOCIATE JUSTICE: A stable democratic society needs the good faith of its public officials, correct?

DREEBEN: Absolutely.

SOTOMAYOR: And that good faith assumes that they will follow the law.

DREEBEN: Correct.

SOTOMAYOR: Now, putting that aside, there is no failsafe system of government. Meaning, we have a judicial system that has layers and layers and layers of protection for accused defendants in the hopes that the innocent will go free. We fail routinely. But we succeed, more often than not.

In the vast majority of cases, the innocent do go free. Sometimes, they don't. And we have some post-conviction remedies for that. But we still fail. We've executed innocent people.

Having said that, Justice Alito went through step by step all of the mechanisms that could potentially fail. In the end, if it fails completely, it's because we've destroyed our democracy on our own, isn't it?

DREEBEN: It is, Justice Sotomayor. And I also think that there are additional checks in the system. Of course, the constitutional framers designed a separate power system in order to limit abuses.

I think one of the ways in which abuses are limited is accountability under the Criminal Law for criminal violations. But the ultimate check is the goodwill and faith in democracy. And crimes that are alleged in this case that are the antithesis of democracy that subverted --

SOTOMAYOR: An encouragement --

DREEBEN: Undermine that.

SOTOMAYOR: An encouragement to believe words that have been somewhat put into suspicion here that no man is above the law, either in his official or private acts.

DREEBEN: I think that is an assumption of the Constitution.


ELENA KAGAN, U.S. SUPREME COURT ASSOCIATE JUSTICE: Mr. Dreeben, I want to go through your framework and make sure I understand it. So, first, on this small category of things that you say have absolute protection --


KAGAN: That they are core executive functions.


KAGAN: What are those small categories?

DREEBEN: Pardon power --

KAGAN: Pardon? Veto?

DREEBEN: Veto, foreign recognition, appointments, Congress cannot say you can't appoint a federal judge who hasn't received, you know, a certain diploma or it hasn't achieved a certain age. There are a few other powers --


KAGAN: Is commander in chief?

DREEBEN: Commander in chief is on the list, but I want to add to my answer on that, that Congress has substantial authority in the national security realm. Congress declares war, it raises armies that has power over the purse. That's more of a --

KAGAN: So, that may be viewed as not really in that core set of functions, which nobody has any power, but the president over? DREEBEN: Yes. I think that there may be some aspects like directing troops on the field in which the president's power is completely unreviewable.

KAGAN: OK. Now, in the next category, where -- you -- we're -- we've left the core set behind --


KAGAN: But we're still in the world of official actions. And that's where you say there are various statutory construction rules that might come into play.

DREEBEN: Correct.

KAGAN: But you have characterized those as something different from just saying, look, the statute doesn't say the president, therefore, it doesn't apply to the president.

DREEBEN: That is right.

KAGAN: So, I wanted to give you an opportunity to say, you know, how that would look. How that analysis would look in a given case. And in the course of responding to that, you know, I'm sort of thinking of something like the O.L.C. opinion, which says, bribery. The president can be tried and convicted of bribery, even in the part of the bribery statutes that do not say the president. Why is that true?

DREEBEN: That is true because there's no serious constitutional question that the president needs to engage in bribery in order to carry out his constitutional functions. And the Office of Legal Counsel pointed out that bribery is enumerated in the impeachment clause. So, it falls outside of anything that could be viewed as inherent in the need for Article Two to function.

KAGAN: Do you think the premise of that O.L.C. opinion was that the bribery was simply not official?


KAGAN: Or is the premise that the bribery was official, and still the president could be prosecuted for it?

DREEBEN: I think that -- bribery is the kind of hybrid that illustrates the abuse of public office for private gain that we think is paradigmatic of the kinds of things that should be -- not held to be immune. In a bribery case, the public official cannot extract the bribe without the official power to offer as the quid or the pro -- I guess the quo, actually. So, it really is a crime that can only be committed by public officials who misuse their power. And it was one of the things that was most mistrusted. Many of the acts that are charged in this indictment or that would violate federal criminal law, similarly involve the misuse of official power for private gain.

KAGAN: So, if you were to say what the line is in this category, like when it is that the statute should be understood as precluded presidential prosecution, and when it is that the statute should be understood as allowing it, what general principles should guide?

DREEBEN: So, the general principles, I think, kind of emerged from looking at what the Office of Legal Counsel has done. So, for example, with respect to a federal statute that prohibited appointments to courts of people within certain degrees of consanguinity. The Office of Legal Counsel said this infringes on a very important appointment power of the president, the power to appoint federal judges. It cannot be presumed that Congress intended to do that because it would raise a very serious constitutional question. The president is out.

Then, there are categories of statutes where the president is in. Like, for example, the grassroots lobbying statute, that the Office of Legal Counsel wrote an opinion about that. And it said, for the president or other public officials to go out into the world and to promote their programs, that can't be what Congress intended to prohibit.

What it did intend to prohibit was using federal funds to gin up -- gin up an artificial grassroots campaign that gave the appearance of emerging from the people, but it was really top-down. And the Office of Legal Counsel said the precedent and officials who carry out the president's mandates are subject to that statute. So, that's a more nuanced one.

And the third example that I will give you is the statute that would pro -- permit prosecution for contempt of Congress. The Office of Legal Counsel concluded that a good faith assertion of executive privilege as a reason for not providing information to Congress would preclude prosecution because Congress cannot be deemed to have altered the separation of powers in such a manner. I think, O.L.C. probably would have gone on to say, if Congress tried to do it, it would be deemed unconstitutional.

But again, this was a statute that did not specifically name the president. There are only two that do that. So, the entire corpus of federal criminal law, including bribery offenses, sedition, murder, would all be off limits if it were taken to the -- to the -- to the extent that some of the questions have suggested.


And for the general principle, does it raise a serious constitutional question? And if so, to what extent? Kind of be carved out individually? And there may be some instances where the statutes here could be carved out and a particular act could be found to be protected. Or does the statute across the board in such a wide range of applications, somewhat analogous to overbreadth analysis of infringe on the president's power so that we're going to say that the president is just out?

KAGAN: Now, that set of issues, they seem important and may occasionally be difficult. They also seem not really before us in the way Justice Jackson suggested earlier. What do you suggest -- I mean, do you think they are before us, we should just clear it up?

Here it is. We have a case. What else could we do? How should we deal with this, that there are these --


KAGAN: Lingering issues --


KAGAN: That go beyond the question of whether there's the kind of absolute immunity that the former president is invoking.

DREEBEN: So, I think the court has the discretion to reach that issue, even though Justice Jackson is totally right, it was not raised in the District Court, and it was not raised in the Court of Appeals. And the analysis that I would use to get there is a fusion of a couple of principles.

One is the court has often resolved threshold questions that are a prerequisite to an intelligent resolution of the question presented. So, in a case like United States v. Grubbs, for example, the court reached out to decide what -- whether anticipatory warrants are valid under the Fourth Amendment before turning to the question of whether the triggering condition for an anticipatory warrant had to be in the warrant. So, that's one principle.

And then a precedent that bears some analogy to this is Vermont Natural Resources Agency v. United States ex rel. Stevens was a key tam case. And the first question was whether a state agency was a person within the meaning of the False Claims Act.

And the second question was whether if the state agency had 11th Amendment immunity kicked in. And the court wrote an analysis of why it could reach both questions. The reaching the person question didn't expand the court's jurisdiction. And it made sense as a matter of constitutional avoidance to do that.

There are some considerations that cut against this. And I want to be clear that for overall government equities, we are not wild about parties who raise an immunity case that can be presented to a court on an interlocutory appeal, and then smuggling in other issues. So, we would want to guide the court not to have an expansive approach to that issue.

But the final thing that I would say about this is part of our submission to this court is that the Article One branch and the Article Two branches are aligned in believing that this prosecution is an appropriate way to enforce the law. Congress, by making the law. The current executive, by deciding to bring it. And -- since a building block of that submission is that Congress actually did apply these criminal laws to official conduct. The court may wish to exercise its discretion to resolve that issue.

KAGAN: OK. I have one last set of questions, which has to do with the official and unofficial lines.

DREEBEN: Yes. KAGAN: And you heard Mr. Sauer's responses to both Justice Barrett's questions and my questions about what he thinks counts as official here and what he thinks counts as unofficial here. And I'm just wondering what you took from his responses, and also how you would characterize what is official and what is not official in this indictment.

DREEBEN: So, I think the petitioner conceded that there are acts that are not official that are alleged in the indictment, and we agree with him on all of that. I think I disagree with him on everything else that he said about what is official and what is not. Organizing fraudulent slates of electors, creating false documentation that says, I'm an elector, I was appointed properly, I'm going to send a vote off to Congress that reflects that Petitioner one rather than the candidate that actually got the most votes and who was ascertained by the governor and whose electors were appointed to cast votes, that is not an official conduct. That is campaign conduct.

And I think that the D.C. Circuit in the Blassingame case did draw an appropriate distinction. A first-term president who's running for reelection can act in the capacity as office seeker or office holder. And when working with private lawyers and private-public relations advise her to gin up fraudulent slates of electors, that is not any part of a president's job. So --


KAGAN: There's -- I'm sorry. There's an allegation in the indictment that has to do with the removal of a Justice Department official. Would -- is that core protected conduct?

DREEBEN: We don't think that that's core protected conduct. I don't think that I would characterize that episode quite that way. We do agree that the Department of Justice allegations were a use of the president's official power.

In many ways, we think that aggravates the nature of this offense. Seeking as a candidate to oust the lawful winner of the election and have won self-certified with private actors is a private scheme to achieve a private end. And many of the co-conspirators alleged in the indictment are private. But for an incumbent president to then use his presidential powers to try to enhance the likelihood that it succeeds, makes the crime in our view worse.

KAGAN: And --

DREEBEN: So, in the Department of Justice episode is -- carves very late in the election cycle after many other schemes had failed. And at that point, the petitioner is alleged to have tried to pressure the Department of Justice to send false letters to the states, claiming that there were serious election irregularities and that they should investigate who they certified as a president. None of this was true.

The Department of Justice officials all said this is not true. We are not going to do that. And at that point, petitioner is alleged to have threatened to remove the Department of Justice officials who are standing by their oath and replace them with another person who would carry it out.

We're not seeking to impose criminal liability on the president for exercising or talking about exercising the appointment and removal power. No. Well, what we're seeking to impose criminal liability for is a conspiracy to use fraud to subvert the election, one means of which was to try to get the Justice Department to be complicit in this. The case would have been no different if petitioner were successful, and he had actually exercised the appointment and removal power, and then gone through, and those fraudulent letters were sent, it would have made the scheme more dangerous, but it would not have changed the crime.

KAGAN: And how do we think about things like conversations with the vice president? In other words, things that if you say it that way, it's clear that they would fall under executive privilege. But how does that relate to the question that we're asking here?

DREEBEN: So, this is one of the most difficult questions for the Department of Justice. And I want to explain why that is. If we are operating under a Fitzgerald v. Nixon lens and looking at this the way that we look at things when there is a private lawsuit filed against the president, we take a very broad view of what the outer perimeter of official presidential action is, in order to be as protective of the president against private lawsuits that as this court explained in Nixon v. Fitzgerald, can be very deleterious to the president's conduct of business.

So, if we were putting this under a Fitzgerald lens, we would then have to answer to the question, was he acting in the capacity as office seeker or was he acting in the capacity as office holder? And if you run through the indictment, you can find support for those two characterizations. And the Department of Justice has not yet had to come to grips with how we would analyze that set of interactions.

KAGAN: Thank you.


NEIL GORSUCH, U.S. SUPREME COURT ASSOCIATE JUSTICE: If you did, though, I just wanted to confirm I thought I heard you thought that the Blassingame framework was the appropriate one. Is that why --

DREEBEN: Largely, yes, Justice Gorsuch. We agree with the idea of the distinction between office holder and office seeker. We also agree that if it's objectively reasonable to view the activities as those of the office holder, then the Fitzgerald immunity kicks in. I think we would look more at the content of the actual interaction in order to make that determination than Blassingame suggested at least on the facts of that case might be appropriate.

GORSUCH: Can you give me an example of what you have in mind? I'm just trying to understand what nuance here suggests.

DREEBEN: So, Blassingame adopted, a generally very favorable pro- government framework that we endorse.

GORSUCH: I would have thought.



DREEBEN: OK. Not here because we don't think that Fitzgerald applies in the criminal conduct.

GORSUCH: I understand that. But --


GORSUCH: But putting that aside, the distinction between official act and private office seeker --


GORSUCH: Their test is you think good enough for government work?

DREEBEN: I -- on this one, the department hasn't taken a next step since the Blassingame decision. But let me offer a few thoughts that just scours, which I think might clarify it.