Conservatives Talk Presidential Power: Disqualification & Contempt

[Music]

 

Emily Manning:  Hello, everyone, and welcome to this Federalist Society virtual event. My name is Emily Manning, and I’m an Associate Director of Practice Groups with The Federalist Society. Today, we’re excited to host a discussion titled “Conservatives Talk Presidential Power: Disqualification and Contempt.”

 

We’re joined today by John G. Malcolm, Vice President for the Institute for Constitutional Government and Director of the Meese Center for Legal and Judicial Studies and Senior Legal Fellow at the Heritage foundation and Professor John C. Yoo, Emanuel S. Heller Professor of Law at the University of California at Berkeley, Nonresident Senior Fellow at the American Enterprise Institute, and Visiting Fellow at the Hoover Institution. If you’d like to learn more about today’s speakers, their full bios can be viewed on our website, fedsoc.org.

 

After our speakers give their opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we will do our best to answer as many as we can. Finally, I’ll note that, as always, all expressions of opinion today are those of our guest speakers, not The Federalist Society. With that, thank you for joining us today. And, gentlemen, the floor is yours.

 

Prof. John C. Yoo:  Thank you, Emily. This is John Yoo, and hi, John Malcolm. How are you doing?

 

John G. Malcolm:  I’m doing great, John. Happy New Year.

 

Prof. John C. Yoo:  Yeah, Happy New Year to you, too. So let’s ring in 2024 with -- gosh. We had a lot of trouble in the last two weeks figuring out what not to talk about. So many things have happened in the subject matter of this podcast.

 

So just yesterday, we had oral arguments at the D.C. Circuit on the special counsel prosecution of Donald Trump for the events related to January 6 on an interlocutory motion on whether President Trump has immunity from criminal -- federal criminal prosecution. So we’ll talk about that first.

 

Then we have had activity—to say the least—on the Colorado Supreme Court decision to disqualify President Trump under the Fourteenth Amendment. Since our last podcast, the Supreme Court has granted cert and has scheduled oral arguments for just under a month from now in early February. We’ll talk about that next.

 

And then lastly, we’ll return to the real subject matter expertise of John Malcolm, which is all things related to Atlanta, Georgia, because there have been important developments in the Fani Willis—the DA of Fulton County—and her prosecution of President Trump and many of the leaders of his “Stop the Steal” campaign for running a gigantic racketeering enterprise. So hopefully, we’ll get to that last issue before we have questions and answers.

 

John, what did you think of the oral arguments yesterday? Do you think that any of the judges on the D.C. Circuit sounded open to President Trump’s immunity claim? How do you think -- I mean, of course, this is -- it’s hard to predict just from oral argument. But if you had to, how do you think the case is going to come out now at the D.C. Circuit?

 

John G. Malcolm:  I was thinking about all the things that have happened in the last two or three weeks since we last got together: Claudine Gay resigning from Harvard, 225,000 immigrant encounters at the border, additional indictments against Bob Menendez. You could go on contempt citations being considered today for Hunter Biden. He shows up with his attorney.

 

So, yes. Yesterday, there were oral arguments before the D.C. Circuit on an expedited basis for Trump’s immunity claim. He showed up in the courtroom and glowered at the judges. And I don’t think -- it didn’t sound like he is going to prevail. So the panel was Karen Henderson, who’s a George H. W. Bush appointee, and then two Biden appointees, Florence Pan and Michelle Childs, and they seemed very, very skeptical of the very broad claims being made by Trump’s attorneys.

 

Essentially, what Trump’s attorney, John Sauer, ended up saying was, “Look, he should be immune from anything that he did in office, with the sole exception being that if he was impeached by the House and convicted by the Senate.” And he pretty much said that if you don’t do this, that it’s going to be open season on former prosecutors. And I think he was met with a great deal of skepticism.

 

Florence Pan ran through a whole series of hypotheticals: what if the president ordered SEAL Team 6 to come in and assassinate his political opponent—hypotheticals like that. And Trump’s attorney did not budge. And then the special counsel’s attorney got up there and said, “Look, this isn’t going to be open season on former presidents. This is the first time this has ever happened because of particularly egregious conduct that does not speak of a future of every former president being indicted.”

 

And they said, basically -- what’s the word? She said it would be an extraordinarily frightening future if this immunity claim, broad immunity claim, were adopted because then presidents who were supposed to have the obligation to take care that the laws be faithfully executed could with wild abandonment criminal violations, and probably nothing could be done about it.

 

So I don’t think that Donald Trump had a good day before the D.C. Circuit. I expect that they’ll rule very quickly. And so the Supreme Court may have another opportunity to consider another Trump case in the not-too-distant future.

 

Prof. John C. Yoo:  Yeah, I forgot to mention that, John. Yeah. President Trump showed up in the oral argument. And I don’t know if his lawyers informed him how oral arguments in the D.C. Circuit work, but clients generally don’t get to say anything, and there’s no cameras in there, if he has been using, which I think he has been doing, particularly with the New York fraud case that we’ve talked about before.

 

He’s sort of using these criminal cases as a campaign platform to draw attention and to be able to make statements about how he’s being unjustly persecuted. An appellate argument in the D.C. Circuit is not the best platform to use. And I agree with you, John. Listening to the oral argument, it did sound like President Trump is going to lose. I did not hear really any questions that were all that sympathetic to the claim of this sort of broad claim of immunity.

 

If you look at the merits personally, to me, I don’t think the claim that the president is immune from prosecution after office, unless it’s for something the president has been impeached and convicted by the Senate for, works. I just don’t think that’s consistent with the Founding history of the impeachment clause, which was supposed to be noncriminal. The whole point of the impeachment is that it doesn’t contain criminal punishment and it’s not a setting of precedent, for example, for whatever happens in the criminal case. So you don’t get double jeopardy, for example, with an impeachment proceeding. Go ahead.

 

John G. Malcolm:  I’m sorry. Go ahead.

 

Prof. John C. Yoo:  Well, then the other point -- I was going to address the other point you made about the -- about immunity is I think that there is a different way of understanding the case, which I think President Trump’s lawyers have been arguing the case too broadly. So arguing for broad immunity is one thing.

 

I think that’s different than saying -- which they could, which is to say Congress can’t pass criminal laws which violate the president’s constitutional authorities. That’s not immunity. Or immunity from prosecution is, “You can’t prosecute me no matter what just because of my status.”

 

But suppose, as Congress did, make it a crime, made it illegal to fire -- for a president to fire cabinet officers, right? This is the Tenure in Office Act, which led to the impeachment of President Johnson, and is actually the statute that Chief Justice Taft struck down in Myers. That’s clearly unconstitutional, it seems to me.

 

So Congress, I would say, can’t use its criminal law, either as written or an application, in a way that infringes on a valid presidential power. But that’s not immunity. That’s something you get to after you’ve decided there’s no immunity. So I think this initial claim that President Trump has made, even though it’s a loser, there are actually more important to me and valid constitutional claims he can make later on, which are similar to the logic of his immunity claim.

 

Last point about John’s point about this starting an unending cycle of retribution in the future and the special counsel saying, “No, that would never happen,” well, President Trump has promised it’s going to happen because he’s already said that, “If you do this and I win the presidency, it’s open season on the Bidens,” right? So, I mean, the special counsel is just wrong about that as a factual matter. But, John, go ahead. Sorry.

 

John G. Malcolm:  First of all, I think that means that there are going to be lots of these podcasts in our future. So I guess two things come to mind. One is in terms of President Trump having to sit quietly in the courtroom yesterday. He may get to make up for that tomorrow. It’s the closing arguments in his New York civil fraud trial.

 

The attorney general, by the way, has upped the ante. She was originally seeking $250 million and having him barred from doing business in New York. Now, she’s seeking $370 million. Donald Trump has requested permission from Judge Engoron to do part of his team’s closing argument, and the judge has granted that request. So he will be in a New York courtroom tomorrow, and I’m sure he will have plenty to say.

 

The other thing I was going to say about the immunity case is I think that what also might be influence -- might influence the D.C. Circuit’s opinion was in an unrelated case. So recently, the Eleventh Circuit took up a denial of a removal petition by Mark Meadows. And Mark Meadows argued that he -- there’s a statute that allows for removal when you challenge officials -- federal officials based on their actions in state court.

 

And the opinion, which was written by Chief Judge Bill Pryor, said two things. It said, one, that the statute does not apply to former federal officials. It only applies to current federal officials. So that is certainly not involved here. But he said that even if the statute did apply to former officials, we would still rule against Mark Meadows because, basically, a lot of the activities that he engaged in on Donald Trump’s behalf—same kinds of things that Donald Trump did—were really outside of the duties of the chief of staff of the White House and, by analogy, would be outside the duties of the president and would be really campaign activities on behalf of Donald Trump seeking reelection.

 

And I can see the D.C. Circuit looking at Chief Judge Pryor’s opinion and adopting some of that reasoning—perhaps even citing that opinion in its own opinion, which it’s going to issue within a week or two.

 

Prof. John C. Yoo:  Yeah. Actually, this brings to mind a possibility where you could maybe see the D.C. Circuit avoid a broad rejection of the Trump position. And it’s in part based on your reading of the prior opinion and the other case that’s relevant that isn’t getting a lot of attention, actually, which is the Blassingame case, which was a D.C. Circuit’s decision on President Trump’s civil immunity from a private lawsuit but for the exact same events.

 

And if you remember, in the D.C. Circuit case in Blassingame, the chief judge -- actually, I think they’re unanimous, even though it has Greg Katsas—a D.C. Circuit judge appointed by President Trump on the panel. But he unanimously said, “Okay. The president has absolute immunity from civil lawsuits from things that he did in his official capacity as president.” You could almost read the Trump argument as saying, “That should also be the same rule for criminal prosecution, too.”

 

But then the D.C. Circuit said, as you just said, John, “But many of the things that happened on January 6 and preceding January 6, President Trump may have been acting as a candidate for office and not as president.” And they said, “Candidate-for-office activity is by definition not official action because it would be a violation to use the power of the presidency to aid your reelection campaign.”

 

So the D.C. Circuit there remanded to the trial court and said, “You can allow the lawsuit to go forward after you have a hearing to figure out what President Trump’s actions on January 6 were.” You could see the D.C. Circuit—if it wanted to get out of having to make a major decision—it could go along these lines, too.

 

They could say, “Look, whether there’s absolute criminal immunity for a president or not, it doesn’t actually matter because on the facts of this case—which we’ll send back to Judge Chutkan to have a hearing—everything Trump did had nothing to do with his presidential actions. He was acting as a candidate for reelection.” And so no matter what immunity exists or doesn’t exist, this prosecution can still go forward.

 

John G. Malcolm:  While that would be a loss for Donald Trump, it would in part be a win because it kicks the can down the road. It was Jack Smith who sought expedited review before the Supreme Court. And if they’re booting it back to the trial court for additional fact finding, there’s no way the D.C. Circuit en banc or the Supreme Court is going to take up that case until that -- those matters are considered by Judge Chutkan, which creates a very strange possibility.

 

So this case was scheduled—still is scheduled—for March 4 trial dates. Highly, highly, highly unlikely that that is going to stick, which means that there is at least a possibility that the first one of these cases to go to trial will be Alvin Bragg’s case in New York, which was on a trial calendar for March 25. Judge Merchan had said that he would keep an open mind and be flexible assuming the case before Judge Chutkan went forward. But if that case gets, might end up being in a New York courtroom again on Alvin Bragg’s charges.

 

There’s vulnerability for Donald Trump, of course, because in New York City, he’s not terribly popular. But my assessment—I think yours, too—of the four cases, that is the weakest one. And so if Donald Trump can manage to get an acquittal in that case, I think it will increase his odds of being able to persuade even more people that this is all just a witch hunt.

 

Prof. John C. Yoo:  Yeah. And that case of all four of the other -- that compared to the special counsel investigation in the Georgia case, has nothing to do with Trump’s activities as president. So if what the Trump campaign is and should be worried about is being convicted of a felony for participating in insurrection or running some racketeering scheme or obstructing the electoral count in violation of federal law, the New York DA case doesn’t touch on any of that.

 

John G. Malcolm:  Right.

 

Prof. John C. Yoo:  So I agree. The timing is interesting. Suppose that the D.C. Circuit instead here decides that just there is no criminal immunity for presidents from federal criminal prosecution and they decide that President Biden is the president, he gets any kind of immunities that exist, and he can decide for the good of the country whether to go after a past present because Biden is the one who’s deciding on the power of the office now while he’s there, how fast do you think this case can get up to the Supreme Court and decided in time for trial proceedings that you mentioned in early March? When is the earliest that those could probably start?

 

John G. Malcolm:  I can’t imagine that March 4 trial date sticking. So let’s assume that the panel comes out with an opinion on Wednesday -- on Friday or early next week.

 

Prof. John C. Yoo:  Yeah. That would be impossible.

 

John G. Malcolm:  So then you’re going to get an immediate appeal to the Supreme Court.

 

Prof. John C. Yoo:  To the D.C. Circuit en banc, you’re skipping a step to delay even further.

 

John G. Malcolm:  Yeah. No, no. You could go to the D.C. -- that’s right. You could go to the D.C. Circuit en banc. They would never take up that case. I suppose that they could delay it if one of the other judges wanted to write a dissent from denial of rehearing en banc. But then it gets up to the Supreme Court. They’re going to require briefings that can be done on an expedited basis.

 

There’s one other interesting thing about the Supreme Court, which is that -- and then they could conceivably hear oral argument sometime in late February. So they’re hearing the case we’re going to talk about next on February 8, late February. But there’s no way they’d get a March 4 trial date.

 

The other interesting thing that occurs to me, we briefly mentioned -- you briefly mentioned at the end of our last call about a brief that was filed in the Supreme Court. This is before they turned down having expedited review. It was a brief filed by Schaerr Jaffe on behalf of former Attorney General Ed Meese and law professor Steve Calabresi and Gary Lawson challenging whether or not Jack Smith had been constitutionally appointed.

 

They argued that he was a private citizen when he was appointed and that this violates the Appointments Clause. When the Supreme Court decided not to hear this case on an expedited basis, the D.C. Circuit had -- did consider that issue in a challenge to Bob Mueller and rejected that argument. So the D.C. Circuit is not going to change its mind on that. But I suppose it’s also possible that if the case -- this case gets back up to the Supreme Court, the Supreme Court could ask Jack Smith to respond to that argument, which would delay things even more and complicate things even more, if that was at all possible.

 

Prof. John C. Yoo:  So let’s say suppose your objective in this—as President Trump’s lawyers—is just to get the case past the election. The last thing you want is a verdict saying President Trump is a convicted felon several weeks before the election or a month or two before the election.

 

So if you play this out, then say the D.C. Circuit issues an opinion—maybe it’ll be a week—that would be incredibly fast. Even if you look at the appellate court arguments and briefing and opinions in the federal system, a year is pretty good, right? So to do it all that fast would be incredible. Then if you’re Trump, you would, I think, wait until the last possible day to petition for rehearing, and then that’s going to kick it about a month or so.

 

And then maybe some D.C. Circuit judges want to have a discussion. You have dueling opinions on whether to grant en banc. That could extend it another few weeks, and you’re talking about March. So the trial date is already gone before you even get to the Supreme Court. Then you could take time, petition for cert. And then suppose the Supreme Court asks for briefing on cert from the government, that’s another few weeks.

 

They could hear the case, get briefed, hear the case in about a month. That’s what we’re going to talk about in a minute—the Colorado case. The case was granted last week, I guess, and you’ve got an oral -- briefing and oral argument will take place in about a month. That’s incredibly fast. And you actually would worry whether the Supreme Court would get the benefit of good briefing in that shorter period of time.

 

So maybe this case could get on the Supreme Court oral argument calendar at the very end of the term—maybe, maybe. Then they’ve got to write opinions in one of the most important presidential power cases in the history of the country and get it all done in just a few weeks. Maybe you get an opinion by the end of the term, if you’re lucky, sometime in end of May or June. But then you could have a trial restart, right?

 

If you run it out that way, it seems you could still have the trial starting in the summer right before -- right after the end of the primaries and maybe in the middle of the national nominating conventions. That could be even worse for Trump.

 

John G. Malcolm:  I think it could happen faster than that, but the timeline you laid out is very plausible. And look, I’m not sure that the Court will -- I mean, I think they had to take the case that they have now taken—the ballot disqualification case. I’m not sure they have to take the immunity case. They could wait to see if there’s a trial and what happened. But you are right. These are all delays, and it is a very important issue. So they would probably take it, but I could see them turning it down, saying, “If he gets convicted, then we’ll take up this issue.”

 

Prof. John C. Yoo:  And this will tie in now with the Colorado case we’re about to discuss. But the other thing the Court could do that no one’s talking about is they could grant the case and then order regular briefing, which would mean briefing and oral argument wouldn’t be until the fall and would guarantee that this case would not actually get resolved before the election, which is kind of at odds with what’s happening in Colorado but not at the end result, I would say, which we’ll talk about a second.

 

So I think you’re not surprised—I think I wasn’t surprised—that the court granted cert last week in the Colorado disqualification case. Everyone who’s listening, I’m sure, needs no extensive reminder. But this is the case where the Colorado Supreme Court said that under Section 3 of the Fourteenth Amendment, President Trump, as an officer of the United States, had violated his oath by participating in some way in an insurrection or giving aid and comfort to those who participated and so was forbidden from running for election to an office of the United States here—the presidency.

 

And remember, we talked about it on the podcast earlier. It was a close decision. The Supreme Court has ordered briefs—I think are due next week—for President Trump and then the week and a half after and then oral argument, I think, is scheduled for February 8. I should make a disclosure that I am likely to file an amicus brief in the case because I’ve written a little bit about this issue already. So take that for what it’s worth with regard to my comments, but I don’t think that actually changes my comments at all.

 

So, John, what do you think the Supreme -- do you think that this cert grant and rapid briefing means it’s almost foreordained that the court will reverse Colorado? And then if they do, what ground do you think it’ll be upon?

 

John G. Malcolm:  Look, I think they had to take the case because it was right on the heels of Colorado. The secretary of state in Maine, Shenna Bellows, said, “Ah, see? I agree with that” and disqualified him from the ballot there. And there were a dozen more of these cases pending—several of them in blue states. A lower court today in one of those cases—I think it was Virginia—rejected the argument on standing grounds for the person who had asserted the challenge.

 

I would be shocked if the Supreme Court affirmed what the Colorado court did. That would basically say, “Okay. Trump was an insurrectionist, and he is disqualified not only in Colorado. He’s disqualified on every ballot.” It’s a little bit ironic that Joe Biden is running around giving speeches, talking about threats to democracy, when it’s his supporters that are trying to eliminate his chief political rival from the ballot in every state.

 

So I think that it is highly likely that the Court is going to rule in Trump’s favor. I don’t think they’re going to do it on the very narrow ground of whatever the rule is with respect to Section 3. The Colorado process deprived Donald Trump of due process because that would kick the can back for some other state to have a more fulsome procedure.

 

They could do it on any number of grounds. They could do it by saying that this was a riot and not an insurrection or a rebellion. There’s been some interesting exchange in the legal press between Steve Calabresi and Ilya Somin on that issue. I think it’s more likely that they’ll do it on either, saying that this is not a self-executing provision and that while at one time—back in the 1800s—Congress had a procedure for determining disqualification, that procedure was repealed a long, long time ago, and that, currently, there is no procedure set out by Congress.

 

The closest analogy to it is Title 18, United States Code Section 2383, which would charge somebody with participating in an insurrection. But Donald Trump has been charged with a lot of things, but the special counsel has not charged him with that. And in fact, he was acquitted of that charge by the Senate in his impeachment proceedings.

 

So I think that they could say that this is not a self-executing provision and that it’s up to Congress to come up with a procedure, essentially saying this is a political question. Or the equally strong—if not stronger—grounds is they could sit there and say, “Well, this provision does not apply to Donald Trump because he is not an officer of the United States under the Constitution, and it simply does not apply to presidents and vice presidents.”

 

All the other officers that are cited in that section are either appointed officials—those are the officers of the United States—or they are locally elected officials: senators, congressmen, state presidential electors.

 

And you could see that at the time—particularly in the aftermath of the Civil War—in which the south was trying to reappoint many former confederate officers back to judgeships and make them all congressmen sit there and say, “Well, you could see a state wanting to elect an insurrectionist, but you couldn’t conceive that the entire nation would want to elect an insurrectionist, particularly if you disqualified any presidential electors who had themselves participated in an insurrection.”

 

So I think the Court is going to adopt that ground. I don’t think they’re going to say that, as my colleague Hans von Spakovsky has argued, that Section 3 is no longer applicable because of the amnesty provisions that Congress passed in the 1800s.

 

To me, the more interesting question is -- well, is going to be, “Is this going to be a unanimous opinion or not?” I think they’ll try to get a unanimous opinion by picking a narrow ground. It’s certainly the most important election case that the Supreme Court has heard since Bush v. Gore.

 

And I guess if you’re the Democrats, you get a win -- a bit of a win-win situation if it ends up being a 6-3 decision because either the Supreme Court affirms what the Colorado Supreme Court did and bounces Trump from the ballot, or it ends up being a 6-3 decision, and they can continue their effort to delegitimize the Supreme Court by saying that the conservative justices are nothing but politicians and roads.

 

Prof. John C. Yoo:  So I agree with much of what you say on the point of the Court granting the case quickly, asking for a quick briefing because I think it’s highly likely the Court will intervene here and say, “The Fourteenth Amendment doesn’t apply in this case for a variety of reasons.” I think the Court doesn’t like seeing what you mentioned, this sort of disorder in the lower courts now, where you’ve got some states—Maine, Colorado—disqualifying the president, other states saying President Trump can run for office.

 

And the main point is what the Supreme Court’s role is: interpreting federal law differently throughout the country. And so that’s the main purpose of the Supreme Court is to maintain uniformity of federal law -- uniformity of interpretation of federal law.

 

I think it’s a very close legal question. Even though I think we both agree that the Court’s likely to reverse, we shouldn’t understate that. Baude and Paulsen have put together a strong argument about the possibility that the Fourteenth Amendment does require disqualification of people engaged or participating in some kind of insurrection, even those after -- well after the Civil War. And they make strong arguments about why this provision should be self-executing.

 

Although I agree with you, John. I think those ultimately don’t succeed. But I would say their main pieces of evidence -- one in the Colorado Court -- Supreme Court gave, which I think is kind of weak. It’s just, “Oh, the Fourteenth Amendment is self-executing,” because it also has a Due Process Clause in it and the Equal Protection Clause in it. And so you can execute those in federal court, although you usually do it when you’re a defendant and you’re claiming the government is doing something to you, and it’s a shield, not a sword, as it’s being used here.

 

The other argument they make is, “Well, if you look at the period right after the civil war, you didn’t need to have judges going around finding that Jefferson Davis was an insurrectionist, or you need a criminal statute from Congress listing everybody who was an insurrectionist.” People could just tell at that time that you didn’t need this implementation -- implementing statute.

 

But I think you’re right, John. I think that argument runs into the problem. First, you have this case that was issued by Chief Justice Chase as a circuit judge—the Griffith case—where he said he thought there needed to be further congressional implementation. And this is a decision that’s issued one year after the ratification of the Fourteenth Amendment.

 

Even if you say Congress might have done it in the insurrection statute, maybe there is -- some people are saying now, “Well, Congress did implement Section 3 when they enacted the federal insurrection criminal statute 2383. But as you say, John, the special counsel hasn’t charged Trump with that. So how can any of these state courts say, “We know for a fact that President Trump committed insurrection” when the federal statute on point has not been used and there is no definitive federal finding that, as you said, the only federal finding that exists is a Senate’s acquittal of President Trump in the second impeachment trial?

 

So I think all of those adds up to in this case, I think, to the Supreme Court issuing a quick decision by late February saying that President Trump cannot be disqualified by states under the Fourteenth Amendment. But I’m not sure either. I agree that I’m not sure whether it’s unanimous either. The Colorado Supreme Court case wasn’t unanimous. Obviously, the state supreme courts throughout the country are not unanimous on this. I could easily see a division continuing.

 

But the reason I earlier raised as a counterpoint with the Jack Smith immunity issue that we were just talking about is it’s interesting. Here, Trump wants a quick, fast decision. He’s been pressing for expedited appeals and briefing and so on. And he has gotten the issue up to the Supreme Court very fast in the immunity prosecution issue [inaudible 33:30].

 

He wants to delay things as much as possible. He wants a court to -- take his time. “Don’t expedite any briefing, Supreme Court. Take your time. Think about it hard”—somewhat in conflict with each other, these approaches.

 

But I think the underlying thing—and this is what I could see the Supreme Court thinking maybe—is the end result of both of those approaches is to just leave Trump on a ballot so that people can vote for him or not in the November elections. And so I could see that maybe the Supreme Court, maybe they say, “Okay. Trump can’t be dismissed from the ballot under the Fourteenth Amendment argument, and we’re going to slow down the immunity case and all those proceedings so that Trump will still be on the ballot and will be a viable candidate in November. And then we hope he loses because then democracy will have had its say, and the courts will not have interfered in the ability of the people to make that choice.”

 

John G. Malcolm:  Well, they would still have to take up the -- potentially the immunity argument because then he would be prosecuted. But that immunity argument would remain. Look, I think they had to expedite this because you were going to have ballots printed and people voting, and what would you do?

 

So the Iowa caucus is to start next week, and then there’s the New Hampshire primary and then the South Carolina primary. What would you do then if Trump won all of those and then, all of a sudden, it’s determined that he’s disqualified from the ballot? What do you do with all of the people who voted for him? Do you do overs in those states? I think in order to have any kind of an orderly process, they had to take it up quickly.

 

And the one thing you say, we say, “Well, the Colorado Supreme Court wasn’t unanimous.” And you’re right. It was a 4-3 decision. To me, what was surprising about that is that it wasn’t unanimous. I mean, all seven of those justices were appointed by liberal Democratic governors. And in the past, on sensitive political issues, they had often ruled 7-0. This was 4-3 with three powerful dissents—one in particular by Justice Samour, who hung his hat on the self-execution argument. So I think that was an indication that even liberal-leaning justices—three of them at least—couldn’t swallow where the majority wanted to go.

 

Prof. John C. Yoo:  So let’s turn to the last issue. And here, John is going to educate all of us on the secret inner workings of the Georgia courthouses, Atlanta legal practice, how fast things work there, how important these kinds of arguments will be with the state judges there. But this immunity argument is now being made by President Trump in the state Georgia racketeering charges brought against President Trump and many other people by DA Fani Willis. So, John, take us away on that.

 

John G. Malcolm:  It’s not the immunity argument that I want to talk about. Donald Trump has indeed filed a motion to dismiss that indictment, asserting the same immunity argument that he has in the D.C. Court. But there was a bombshell motion that was filed within the last couple of days by the attorneys for another defendant in that case, Michael Roman.

 

Michael Roman was a former campaign -- Trump campaign official. And they filed a 127-page pleading that includes exhibits, a motion to dismiss the indictment. They say it’s unconstitutional. I’m not sure that’s right. But the argument that they have made is that Fani Willis, the district attorney, hired a special prosecutor—a guy named Nathan Wade—who has been paid since January of 2022, so for two years. He’s been paid about $654,000.

 

Prof. John C. Yoo:  Wow.

 

John G. Malcolm:  Yes. It’s more money than you make as a professor.

 

Prof. John C. Yoo:  It’s great. Yeah, good work if you can get it.

 

John G. Malcolm:  It gets much more complicated. And the allegations are not just that this guy has been paid an exorbitant amount of money. But one, the allegation is that she had to go to -- this is not part of her regular budget. She had to go to Fulton County to request additional supplement to her budget. And the allegation is she went to Fulton County saying she needed these funds for COVID-related prosecutions. And she also, by Georgia law, was supposed to go to Fulton County to seek the approval to appoint a special prosecutor.

 

The allegations are that she did neither of those, that she misled Fulton County about the -- how she was going to use these funds, that she did not seek their approval before appointing Nathan Wade as a special prosecutor. And the pièce de résistance is that the motion says that Nathan Wade and Fani Willis have been carrying on a romantic relationship for an extended period of time and that a lot of these funds that were paid to Nathan Wade, he then used to pay to go on luxury trips with Fani Willis.

 

And so that would create a plausible argument if these allegations are true. And I think that the Fulton County superior judge, Scott McAfee, is going to have to do a searching inquiry of all of this. We will see how Fani Willis responds to this motion. But it creates the possibility not only she acted horribly, unethically, and showed horrific professional judgment, but that, essentially, she was lavishly paying—she had to approve all these payments—lavishly paying a contractor who was kicking back benefits to her in the form of very, very lavish vacations: cruises, trips to the Caribbean, trips to Napa Valley. It’s all laid out in this motion, and that this could also be a federal violation of theft of honest services by Fani Willis.

 

If these allegations turn out to be true, then I think it is -- if she’s not going to be disbarred or criminally prosecuted, at the very least, I think it is inevitable. Either the indictment will be dismissed or, more likely, that her entire office will be recused from being able to continue with this prosecution, in which case, I believe the matter would probably be referred to another district attorney’s office to evaluate whether to drop the whole thing or whether that DA’s office should continue with the prosecution.

 

But this is a rather explosive motion, and we will see what comes of it. But this—unlike the presidential’s -- President Trump’s immunity argument—I think, will fare about as well as Mark Meadows’ argument did and about as well as his argument is going to be before the D.C. Circuit. But these are explosive allegations, and that could conceivably blow up this case.

 

Prof. John C. Yoo:  Wow. So, yeah. I thought we were going to talk about something completely different, which was whether presidential immunity from criminal proceedings might be broader against states and against the federal government. I think there could be good reasons for that.

John G. Malcolm:  I think it’s sex and money. It is sex and money instead.

 

Prof. John C. Yoo:  You always pander to the audience, Malcolm. We know that. But let me ask you a serious question, which is, even if all that were true—and it would be so much fun to find out, just to watch the investigation about whether this is true or not—why does it require withdrawal of the indictment? So you said that’s one possibility, is that the indictment itself gets thrown out.

 

So you could say, “So what if the DA is engaging in this kind of hanky-panky?” Does it really detract from whether the indictment represents the best for you, the DA, whether a crime occurred? And shouldn’t the DA -- or put it differently. What if Fani Willis resigned and another person took over as DA in the office? Couldn’t they continue with the prosecution? Why does this hanky-panky undermine the ability of a court now and a jury to evaluate whether this -- whether President Trump’s guilty?

 

John G. Malcolm:  Because they were self-dealing with respect to this investigation in terms of huge -- drawing huge payments and authorizing huge payments and taking kickbacks. It just adds a huge stink to the whole thing that I think anybody would go, “This is the most important prosecution ever brought by the Fulton County DA’s office.” For anybody to have any confidence in the results of this, it has to be completely above board. This would not be completely above board, and I believe that she would be disqualified.

 

So actually, Fani Willis, originally, she indicted all of several of the “fake electors.” We talked about that before. But one of the ones that she wanted to also proceed against was a state senator who served as one of these electors, who’s now the sitting lieutenant governor in Georgia. And her office was recused, not just her being disqualified. Her entire office was recused from considering an indictment against him because she showed up.

 

She co-hosted an event by the lieutenant governor, whose name is -- I forget what his name is -- the current sitting lieutenant governor. She co-hosted and showed up at a fundraiser by his political opponent at the time in the race for lieutenant governor and said things, sort of blasting this guy who turned out to be a target of her investigation, and supporting his political opponent for that Judge McAfee.

 

Or I think it was another judge on the Fulton County Superior Court who said, “No. Too many conflicts. Your office is disqualified from proceeding against him.” Well, if her office was disqualified for proceeding against him for that, she would certainly be disqualified for proceeding with respect to continuing this case if these allegations [inaudible 43:59].

 

Prof. John C. Yoo:  So let me ask. So how does it work? Would it be the trial judge who would conduct this hearing about whether this had occurred and then the judge would be the one who would dismiss the indictment and say, “The reason I’m dismissing it is because of the possibility of”—it sounds like ethical, if not criminal—“wrongdoing by the DA in the way they brought the case”? Or would it be -- are you making more, I say, a prudential argument that, “For the good of Georgia, the DA herself should withdraw the indictment”? What if Fani Willis just wants to keep going? Could she keep going? Or someone else in the government would stop the indictment at this point?

 

John G. Malcolm:  Yeah. Again, I’m not sure that the indictment will get dismissed out of hand. I think what would happen is the judge would rule that in the interest of justice, her office is recused. And then my guess is that some other DA’s office—and I think there’s a council that was set up in Georgia to deal with these sorts of matters—would be assigned to another totally -- another DA’s office totally outside of Fulton County to analyze the thing. And then that office might decide either to proceed or to drop the matter.

 

And if a judge orders her office recuse, there’s not much. She can appeal that if she wants to. But if these allegations prove to be true, I cannot see how any judge or court in Georgia would allow her to continue with this prosecution. Then the matter would be referred to disciplinary proceedings. It could be referred to the U.S. Attorney’s Office for possible prosecution of Fani Willis and Wade.

 

And again, I caution all of this, which is if these allegations prove true. These have now just been asserted. They were just asserted in the last couple of days. But this is potentially a very explosive thing [inaudible 45:50].

 

Prof. John C. Yoo:  And also, as you’ve pointed out before, as we’ve discussed, if you’re President Trump, what your main goal is is to delay things past the November election. And I presume it would take time to investigate these allegations. Have they not come up in a divorce proceeding, basically? It first came up in a divorce proceeding for this lawyer you’re talking about.

 

And in the divorce proceedings, the other spouse wants to call Fani Willis to testify about all this. If you’re right, John, gosh, that seems to be a huge delaying factor then in the Georgia case because if the Court is going to say, “I need to know whether this indictment is fairly brought and wasn’t the result of corruption,” then you would have to put off all the trial proceedings until you figured that out first.

 

John G. Malcolm:  So interesting you say that. I don’t think that trial was going to trial anytime soon. It was certainly delayed. Fani Willis, I think, has been divorced for quite some time. I don’t think Nathan Wade was. And apparently, there’s been a long -- the allegations are, it’s been a long-standing, long-term relationship that they have been carrying on. He is in the process of getting divorced, and I believe that his soon to be ex-spouse has now subpoenaed Fani Willis to appear and testify about it. So it’ll be really interesting to see how she responds to all of this.

 

Prof. John C. Yoo:  Well, Emily, why don’t we turn it over to you for questions and answers and get us out of this gutter that John Malcolm has dragged us into as quickly as possible and restore us to abstract, highfalutin constitutional principles, although I’m sure everybody is far more interested in this now than whether President Trump has immunity under Nixon v. Fitzgerald. Emily, go ahead.

 

Emily Manning:  Well, thank you both for this great discussion. And we’ll now turn to audience questions. So if you have a question, please enter into the Q&A function at the bottom of your screen.

 

So the first member of our audience is asking a question regarding presidential immunity. “Can this be used as a way to manipulate the behavior of a president while in office? And even if Trump loses on immunity, what standard will the appellate court propose for future presidential immunity.”

 

Prof. John C. Yoo:  John, go ahead.

 

John G. Malcolm:  We’ll see what standard they propose. Tanya Chutkan, in her order, talked a little bit about the chilling effect that this might have. She said a little chilling effect might not be a bad thing for a president, essentially.

 

And this was discussed in a concurring opinion by one of the judges in the Eleventh Circuit case—the Mark Meadows case—not in terms of whether Meadows -- whether some of his actions were within the scope of immunity or not. But she urged Congress.

 

She said, “I concur completely in Chief Judge Pryor’s opinion. But I’m writing this concurrence to urge Congress to amend the removal statute to cover former officials precisely because if you can go after former officials and they have no ability to remove something to federal court, that could have a real chilling effect on current officials who know that they are taking actions that are always going to piss off some state somewhere, and that at some point in time, they are going to be former officials, and they could end up being sued or prosecuted in state court with no recourse.”

 

So there are judges. The judges that have dealt with this are thinking about this a little bit. I don’t know what standards they’re going to lay down to try to deal with that question.

 

Prof. John C. Yoo:  I think also, you have the logic of the immunity from civil actions because there, the Court has said, “One reason that we do think -- or one reason that supports our finding that presidents have absolute immunity from civil lawsuits for their official actions is because we don’t want presidents thinking and worrying about whether they’re going to be harassed by litigation when they’re making decisions now or litigation in the future.”

 

And the Court there -- and it’s similar to some of the logic in Nixon v. United States in the Watergate tapes case. The Court in both those cases showed a lot of concern that presidents be able to enjoy a certain space to make decisions free of legal liability. And so what Trump’s lawyers have done is basically take that reasoning—and similar to the questioner’s reasoning—and apply it and say, “That’s a reason why we should have criminal immunity, too.

 

The one thing that’s different, though, is that when at least it comes to federal criminal prosecution, you don’t have this specter of just private citizens harassing the president with litigation. It’s really up to the following subsequent president to decide. And so you would hope that the subsequent president, when they make a decision or not about prosecution, they take into account the effects on the presidency and the effects on the current president and future presidents about being able to make good decisions for the country if they have to be worried about criminal prosecution.

 

I ultimately don’t think that argument’s going to win. I don’t think it’s going to succeed in persuading the courts to grant President Trump or past presidents this kind of immunity that he seeks for criminal prosecution. But I see the logic. I see the logic there.

 

John G. Malcolm:  Yeah. And that was one of the reasons I remember, John, that we raised at the time of the Fani Willis and Alvin Bragg indictments of saying, even if they lose it, they’ve, in a sense, already won because President -- former President Trump is very unpopular in Fulton County and in Manhattan. And so they’ve already done what their constituents wanted them to do, basically, reassuring their reelection.

 

But you know what? There are thousands of DAs around the country, and they’re not all from blue jurisdictions. And that that is a danger in terms of if somebody sits there and says, “Well, I can find some venue hook in some way and go after Joe Biden because of something that he did that was unpopular in my jurisdiction.”

 

Emily Manning:  So the next member of the audience is asking a question in regards to the Colorado and Maine ballot initiatives. “How can these states determine President Trump is ineligible to be on the ballot if he has not been indicted, nor has he been convicted of an insurrection?”

 

John G. Malcolm:  Well, the Colorado Supreme Court said that Colorado has its election procedures and a way to challenge under its election code and that the funky-donkey hearing trial that took place before the trial judge satisfied due process and was sufficient to make such a finding. I don’t know what Shenna Bellows said, other than, “I read what the opinions were in Colorado. What they said sounds good to me.”

 

It’s really this question of, “Has due process been afforded?” And I think in Colorado, the answer to that was no. But that’s the argument that’s made is that as long as you’re providing some form of due process, they can make those determinations because they’re elected officials, and they’re the people that determine who gets to be on the ballot based on their qualifications or disqualifications.

 

Prof. John C. Yoo:  Yeah. Well, this is also a problem with this general approach of disqualification is that if you wanted to provide due process, you’d have 50 simultaneous trials going on in each state about whether President Trump committed insurrection.

 

If you look at what the trial judge in Colorado did, she actually issued a lengthy opinion. She mostly hung her findings of fact on the January 6 congressional investigation report. If you look at her footnotes and the sources, she basically just followed along with what the House special committee back then found.

 

It’s not due process. They did have extensive hearings, but if you remember, they were awfully one sided. Remember in an unprecedented move, the House Democrats refused to seat the House Republicans that the leadership had chosen to be on the committee. But I could see why the Colorado judge did this because she didn’t really have a serious trial on the facts. She just hung her opinion on what some other federal agency had done -- some agency the federal government had done.

 

The strongest argument, though, I think, against -- and the answer to the question on the other side, though, is that, well, after the Civil War, you didn’t see thousands upon thousands of judicial proceedings to decide who had been involved in insurrection, although it was so easy because they had voluntarily declared themselves in the Civil War to be confederates. So you didn’t really need to have any proceedings.

 

Obviously, Jefferson Davis was a member of the insurrection. Did you have to have a trial just to determine whether he had committed insurrection? And so the unique nature of the Civil War obviates the need for any kind of due process hearings.

 

But I’m not sure about this, but I think this is correct. I don’t think there ever has been any kind of activation of the Fourteenth Amendment or anything like it since then that lacked any kind of judicial finding. In other words, I can’t think of a case where, oh, someone said, “Oh, yeah. That guy is an insurrectionist. They shouldn’t run.”

 

In fact, I think in the last election, there were efforts to disqualify people like Madison Cawthorn, other people, and those all went to court. It wasn’t like a secretary of state just said, “Oh, I can tell he was involved, or she was involved with January 6. They’re an insurrectionist, so I just kicked them off.”

 

John G. Malcolm:  There was one official in New Mexico—he was actually an elected official—who went into the Capitol on January 6. And there was a lawsuit filed to get him booted out of office for violating Section 3. And the judge ruled against the elected official, and he was bounced. So that’s the only example that I can think of. And you’re right.

 

I mean, the judge in Colorado, the trial judge, led in all the January 6 committee stuff, is all hearsay, no confrontation whatsoever. She had some kind of an expert—I don’t remember the guy’s name—who basically said, “I’m the expert of winks and nods” and can determine that when Donald Trump was saying this, he was really sending coded messages to the proud boards and the oath keepers and all this. If that’s due process, then we’re all in a lot of trouble.

 

Emily Manning:  So to go off of that question, who determines, on a controlling basis, whether there was an insurrection or not?

 

John G. Malcolm:  I suppose that’s going to be a fact-finding and judicial determination, too. So there’s been interesting -- in terms of the legal matter, there’s been interesting exchange in the last few days between Ilya Somin, who was on the Trump -- was definitely an insurrectionist side and saying that the Shays’ Rebellion would have been an insurrection, and the Whiskey Rebellion would have been an insurrection, and this was certainly an insurrection, too.

 

And Steve Calabresi saying “no” that this provision was put into place, the example that they were looking at was the Civil War, that what happened in the Capitol was a riot. Bad things happened. It shouldn’t have happened. No one really particularly showed up with -- there weren’t weapons. Everybody was saying that all these people are going to be armed—they weren’t armed—that what happened was a riot, but it wasn’t a rebellion. So that’s, I suppose at some point, a legal question after some factual inquiry would be my guess.

 

Prof. John C. Yoo:  Yeah. And I think that that has to be done by courts now because I do think that the Fourteenth Amendment Section 3 has not been executed by Congress. There is no statute that says “disqualification of former federal officials statute.”

 

The extent it’s been implemented at all to give any guidance to what the phrase “insurrection” means, it’s been through the insurrection statute, 2383. And so I would say, at a minimum, if you want to look for some kind of controlling authority that’s going to decide who’s an insurrectionist, at this point, it’s actually something all three branches can participate in and have.

 

Congress passed a criminal statute, which means the judiciary will ultimately pass on it. And the executive branch participates, too, because they decide to bring the charges. And as John mentioned—and we’ve mentioned several times on the -- this series—Jack Smith has not charged President Trump with insurrection. I think that’s a huge oversight. I think that’s a very damaging flaw in the special counsel investigation.

 

But if he chose not to, then the executive branch is essentially saying, “We can’t prove insurrection.” And so how can these states then go around and say, “We”—like Maine secretary of state or the Colorado Supreme Court—“who have no access to any information, you assume Jack Smith has the most evidence and information about any kind of insurrection that occurred. How can they claim they have better knowledge of the facts than the special counsel who represents the executive branch here?” And they’ve chosen to -- they’ve declined bringing insurrection charges.

 

Emily Manning:  So we are at the top of the hour. So, on behalf of The Federalist Society, thank you both for joining us for this great discussion today, and we look forward to the next episode in the series. Thank you also to our audience for joining us today. We really appreciate your participation.

 

Check out our website, fedsoc.org, or follow us on all major social media platforms at FedSoc to stay up to date with announcements and upcoming webinars. Thank you once more for tuning in, and we are adjourned.

 

[Music]