Conservatives Talk Presidential Power: Examining the Latest on Impeachment and Immunities

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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: Examining the Latest on Impeachment and Immunities."

 

We're joined today by John G. Malcolm, Vice President for the Institute for Constitutional Government and Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow at the Heritage Foundation, and Professor John C. Yoo, Emmanuel 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 at 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. I think I'll continue to play the moderate on the podcast and ask John -- so I'll start off by asking John some of the questions, although we'll tell listeners that if you're interested in seeing me in the more accustomed role of the liberal, you can listen to me on the Three Whiskey Happy Hour, where Steve Hayward is the moderate and the mysterious Lucretia. We drag her out of the cave from her crow magnet cave where she resides, and I am beaten up upon as the liberal.

 

So this is funny because John and I were again talking about whether to have any episodes at all in December. We thought it was going to be a quiet month with Christmas coming along, but instead, we just had a flurry of activity in the last few weeks.

 

And so what we're going to talk about today are the two separate rulings on Trump's claim of immunity—both in the civil and criminal context—a very interesting evidence filing made by special counsel Jack Smith, and then the indictment of Hunter Biden in California for tax fraud and evasion charges. And hopefully, we'll get to the upcoming House impeachment vote, and then we'll hopefully have at least 20 minutes for questions.

 

So, John, today's taping shows if we ever needed any proof—and I certainly didn't need proof of this—but if you ever need any proof that special counsel Jack Smith is a loyal listener to our show, you would have seen it today because he helpfully provided us with the topic for our conversation this morning, which was he made an emergency appeal for cert at the Supreme Court, bypassing the D.C. Circuit, demanding that the Supreme Court decide whether President Trump has any kind of absolute immunity from criminal prosecution.

 

So, John, sorry with the long lead in. Welcome back from your extensive travels throughout the world—gorging yourself on the finest that Italy had to offer these last few weeks. But what do you think of this Jack Smith emergency appeal which just happened a few hours ago?

 

John G. Malcolm:  I'm actually not surprised. At the same time as he filed for a petition for a writ of certiorari before judgment in the Supreme Court, he's also filed in the D.C. Circuit a motion for expedited consideration of the pending appeal if the Supreme Court denies that petition for cert pending judgment.

 

So the backup to this is that Tanya Chutkan, the district court judge, issued an extensive order denying President Trump's motion to dismiss the indictment, claiming presidential immunity. And it's a very extensive order.

 

She basically sits there and says he's not the current president anymore. He's a former president. There's nothing that says that former presidents can't be indicted. She rejects his argument that having been acquitted during an impeachment proceeding of the insurrection charges that that somehow puts the kibosh on this prosecution.

 

And she's saying, "Well, yes. A lot of what he did was speech. But speech in furtherance of a crime can get you into trouble, akin to walking into a bank and saying, ‘This is to stick up your money or your life.’  That's speech, too. But it's speech within the context of carrying out a crime.” And here, she says that the crimes laid out are clear and the specific intent crimes. And so the fact that he implemented this crime or carried out this crime through speech doesn't, in some way, protect him.

 

What happens, though, is that the case, because of a Supreme Court case from last year—Coinbase v. Bielski and also a D.C Circuit case, Blassingame v. Trump—it's acknowledged that while this immunity issue is being appealed, everything is stayed at the district court.

 

And so Jack Smith now sees that this March 4 trial date is potentially imperiled. He does not want that to happen. So he is trying to get these appeals considered as soon as possible. And he is proceeding as if there is still going to be a March 4 trial date. He has filed a motion saying that the Court should still enforce its gag order, which was largely upheld in a separate ruling by the D.C. Circuit, and has also filed a notice today of his intention to introduce certain extrinsic act evidence that will be offered under rule 404(b) of the Federal Rules of Evidence.

 

So he wants to get this thing going. He wants that March 4 trial date to stick. And if that's going to happen, then these appeals have to be resolved.

 

Prof. John C. Yoo:  What do you think about his ploy? I looked at the papers closely—as did you—it doesn't actually explain what the need for speed is. It explains why the case is important. I don't think anybody would deny this is important. If the Supreme Court were to hear this case, it would be the most important case ever on presidential immunity because, in part, President Trump has made a sweeping claim of immunity.

 

John G. Malcolm:  Correct.

 

Prof. John C. Yoo:  This goes beyond Nixon, and it goes beyond Fitzgerald. But why the need to have it done right away? That, I think, actually -- it's interesting. The pleadings don't give an explanation why it must be done now. Why not wait for the D.C. Circuit? And we'll talk about the Blassingame opinion later.

 

I thought the D.C. Circuit did quite a good job—a very thorough, excellent job—compared to this district court opinion on whether President Trump has any kind of absolute immunity from a civil case. Why not let the D.C. Circuit hear the issue? So two questions.

 

Why not let the D.C. Circuit consider the issue? The D.C. Circuit is a court that almost specializes in the separation of powers and has worked through lots of immunity issues before. Why not let them do that? And second, do you think that President Trump will make a cross -- will make what we call a cross petition for writ? In other words, he agrees. He would want it decided fast, too. Or do you think President Trump would oppose this emergency petition from the special counsel?

 

John G. Malcolm:  I think for sure he'll oppose it. I mean, I think that there is no reason other than the fact that the remaining three indictments are all very loose in terms of when those trials will take place. The Alvin Bragg indictment is sort of on hold. It's been roughly scheduled for March but very much up in the air. The classified documents case that Aileen Cannon has in Florida, I think everybody sort of assumes that that is going to be delayed because of procedures related to CIPA and whatnot—Classified Information Protection Act -- Procedures Act.

 

And I don't think that anybody expects the Georgia case to go forward before the election, and I just think that Jack Smith wants one of these cases to be decided before the election. And Donald Trump clearly does not want this case decided before the election. He, in his gag order, sat there and said, "Well, I'm running for president. I should be able to say whatever it is I want to."

 

And one way to get around this is just postpone the trial until after the election. And Judge Patricia Mallette in her majority opinion said, "No, we're not going to reward or incentivize people to engage in inflammatory language just to delay things so that they can essentially get their way by using inflammatory language to postpone a case until after the next election."

 

So there's no reason why this couldn't proceed in due course other than a felt urgency certainly by Tanya Chutkan and certainly by Jack Smith to get in at least one of these trials. And this one is probably the biggest trial before the next election.

 

Prof. John C. Yoo:  Yeah. I think it's interesting because they could say, "Oh, Justice Department procedures require us not to hold a trial within" -- it used to be six months of an election or something. They don't say that. The implicit claim—but they don't say this—is, "We think Donald Trump is a traitor, and so we do not want him to be able to win the presidency again." That's the only reason you would want to have this this early before the election, right?

 

They still think they can have the election with enough time -- have the trial with enough time to knock Trump out of the election and give the Republican Party sufficient space to put someone else in should he be winning the election. I mean, it's strange. I mean, it's telling that the trial is scheduled for Super Tuesday to start on this -- start around the same time as Super Tuesday election.

 

John G. Malcolm:  I'm not sure that'll knock him out of the election, by the way, even if he gets [crosstalk 10:45]. Yeah, it might help him.

 

Prof. John C. Yoo:  Yeah, there you go.

 

John G. Malcolm:  He at least would be convicted, assuming that that's what happened. So I think it was Chris Christie who pointed out the other day, "Well, he could run for president, but he wouldn't be able to vote for himself. He'd be a convicted felon."

 

Prof. John C. Yoo:  That's true, unless he was in California or New York. So here's the other interesting thing. If you look at the briefing, the special counsel -- and actually, if you look at the papers, he's brought on one of the top Supreme Court deputy solicitor generals, Michael Dreeben, on board his team, who has an intimate knowledge of the workings of the Supreme Court.

 

And they make a big deal of the fact that this is the exact procedure that was used in U.S. v. Nixon, the Watergate tapes case. So I went back and looked at the dates. So it's interesting. In the Watergate tapes case, you may recall the special prosecutor filed for a subpoena, which was issued by the Court for President Nixon to turn over the Watergate tapes.

 

The D.C. district court in that case issued an opinion denying the quashing of that subpoena on May 31. Oh, no, I'm sorry. Yeah, May 1974—I think May 21, 1974 -- I'm sorry, May 20, 1974. The president appealed to the D.C. Circuit four days later, May 24, 1974.

 

And then the special counsel then, like the special counsel now, was the one who went directly to the Supreme Court, filed for a petition on May 24, also at the Supreme Court, directly under the same exact provision that Jack Smith is using. The Court granted cert, heard argument on July 8—so two months after the filing of the petition—and issued the decision on July 24. That’s remarkable. 16 days after oral argument, the Court issued the decision.

 

Now, I am a Watergate junkie, and, of course, I teach presidential practice. It's very interesting to me, which is how is the Supreme Court able to hear oral argument, issue the opinion so quickly without the benefit, with rushed briefing? This really was a first-of-its-kind case without any kind of discussion of the issue by the lower court, which can really help the Supreme Court.

 

But it also suggests that if he should -- suppose Smith should win on this -- by the way, it took the Court only -- looks like a week to decide to grant cert. So that could mean that we're going to be back here next Monday. We could be here next Monday talking about the cert grant. But that would mean that you could have an opinion come out the end of February. It would have to be right before the trial could start.

 

If you went as fast as Nixon, you still wouldn't get an opinion out from the Supreme Court on this absolute immunity claim until right before the trial date. I don't see. Since you said, John, the trial proceedings are stayed now, how could they get their trial up and running just a week or two after they hear from the Supreme Court in U.S v. Trump on whether there's immunity or not?

 

John G. Malcolm:  Well, I don't know exactly how it would go other than to say that a lot of the discovery has been turned over to former President Trump. So it's mostly pretrial motions that we're talking about. Jack Smith, as I said, has just filed a pretrial motion. And the Supreme Court cannot—that it does it very often—but it can act unbelievably quickly. They did that in the Pentagon Papers case. Certainly the Bush v. Gore litigation led to some rather hastily issued decisions after emergency petitions and sometimes got oral argument, sometimes didn't get oral argument.

 

I mean, really, it's just going to be a question about whether the Supreme Court sees the public necessity to act now and immediately in the same way that they did during the Pentagon Papers case and the Bush v. Gore litigation. And that's certainly what Jack Smith is trying to create, is a sense that the public's interest really is in getting this thing moving. I don't know whether the Court is going to be as convinced by that or whether the D.C. Circuit will be as convinced by that.

 

Prof. John C. Yoo:  Let me also make a comment because you already ably described what Judge Chutkan held in her early -- the substantive decision that's on appeal. I think part of the problem to me is that President Trump's claim of immunity was too broad. He made two interlocking arguments.

 

One was that the president could not be criminally prosecuted for any presidential actions that were even at what he called the "outer limits" of the executive power. Didn't really, I think, strongly address the claim—which is also raised in the Blassingame case—that what President Trump was doing here was campaign related.

 

If you look at the Blassingame case—we'll talk about in a minute—the Court almost says, "By definition, it might be hard to show when a president is acting as president or he's acting as a private citizen. But it's almost clear that the one time we know he's acting as a private citizen is in campaign reelection activity." So I think by making such a broad claim that everything the president does virtually is immune, doesn't address that issue, which I think is really the important issue.

 

And then, second, Trump made this claim that since he had been impeached and tried by the Senate for essentially the same conduct, that some kind of double jeopardy -- double jeopardy applies. It's not really a strong double jeopardy claim.

 

It's really the claim that in the Impeachment Clause and then Hamilton's explanation of the Impeachment Clause, the language is you can be impeached and then removed. And then, basically, Trump said, "After removal, you can be indicted." And so Trump's lawyers said, "Oh. That means only if you're convicted and removed, you can be indicted."

 

I think that's actually quite wrong. But again, I think that's such a broad argument. I don't know if that's going to help them on appeal to make a claim like that. Anyway, those are my thoughts about the Chutkan immunity.

 

John G. Malcolm:  I think that may be true. The other thing I think --

 

Prof. John C. Yoo:  -- I think she's pretty much --

 

John G. Malcolm:  I'm sorry, go ahead. Go ahead.

 

Prof. John C. Yoo:  Well, I was going to say, actually, I -- we ought to say that the Supreme Court actually has not ruled directly on whether a president has immunity from criminal prosecution by his or her successor. It's never come up before because no president has ever been indicted before.

 

I do think that Chutkan's decision sits within the inferences you would make from existing case law—Clinton v. Jones, Nixon v. Fitzgerald, U.S. v. Nixon—all seem to suggest that the president doesn't have immunity from criminal prosecution. But the Court never has clearly said so. Go ahead, John.

 

John G. Malcolm:  I think that's true. I mean, the one thing I was going to -- I mean, she points out, "Gee, why would Ford have to have pardoned Nixon if Nixon had never been impeached and removed and then couldn't be criminally prosecuted?" So it's very interesting. She -- because you talked about the outer reaches of what a president can do.

 

So there's this line of cases with respect to civil lawsuits that can be filed against a president in which the courts have said, "Look. If this is within the outer reaches of what presidents do, they are immune from civil liability."

 

And she goes to great pains to say, "Well, that may be all well and good with respect to civil liability, but criminal crimes are something different." You have to get a grand jury to indict you. There are intent requirements. You have all the due process protections in a criminal trial. The rule of law interests are much higher when it comes to criminal cases. And then maybe it's a good thing that presidents second guess themselves before acting when what they are going to purporting to want to do is arguably or clearly of a criminal nature.

 

So they did a lot of -- the president made a lot of citations in his briefs to all of these civil cases in which they said presidents are immune based on anything within the outer periphery of their executive authorities. But Chutkan sits here and says, "Well, the rules are a little bit different when it comes to a criminal indictment."

 

Prof. John C. Yoo:  Yeah. Looking at the set of precedents out there, it would almost make no sense to have a Fitzgerald case if you -- if a president was immune -- was already immune from criminal prosecution. Then it would have been easy to say, "Well, presidents are immune from criminal prosecution," and then it would make total sense for them to be immune from civil prosecution. That's not the way Fitzgerald is written.

 

U.S. v. Nixon itself may not make much sense. Why go all the way to the Supreme Court to figure out whether the president is subject to a criminal subpoena as an unindicted co-conspirator if he can't be prosecuted?

 

And then even Clinton v. Jones has that suggestion to it because it rejects this idea of this functional claim, which Judge Chutkan talks about a great deal, which I don't particularly like. I don't think it really should make the difference.

 

But that is the way the Nixon and Clinton v. Jones cases proceed, which is this idea, "Oh, we should ask. How much does this intrude on the president's ability to do their job?" which suggests like, "Oh, if it intrudes a little too much, then we would stop the prosecution. But if it intrudes just a little bit, we won't stop the prosecution."

 

These balancing tests, I think, just cede too much power to the individual trial judges and, to me, are not consistent with how the Constitution should work when it comes to presidential power.

 

John G. Malcolm:  We do have those OLC opinions that say that a sitting president can't be criminally indicted.

 

Prof. John C. Yoo:  Right, be indicted.

 

John G. Malcolm:  So then, presumably, whether it's a big intrusion or a little intrusion, it doesn't really matter. Here, he's a former president. The wrinkle, of course, is that he's not just a former president. He's a current front runner for the Republican nominee.

 

Prof. John C. Yoo:  Yeah, which goes --

 

John G. Malcolm:  [Crosstalk 21:22].

 

Prof. John C. Yoo:  -- not much discussed in the opinions or in the cert petition. Exactly right. I mean, that's really why it's important.

 

The other thing I think Judge Chutkan is quite wrong about is her claim, "Oh. Well, if it's former presidents who are prosecuted, not sitting presidents, it doesn't—won't have any effect on the presidency."

 

Well, of course, sitting presidents, after this all happens, are going to now worry about whether they are going to be prosecuted. And I think it actually would be quite harmful to presidential power because, one, presidents often push their power during emergencies. But two, if you look at this prosecution, these are all -- these are all, I would say, creative interpretations of the criminal law, to charge a former president with obstructing Congress, defrauding the United States. They didn't charge him with insurrection or sedition. So I think these are given.

 

So one last point. This may be the only time we'll have another case like this because if this goes forward, if the special counsel prevails, "What will happen? What's the incentive for the future?" every president will pardon themselves for everything they did on their last day in office, right? And that will cure the problem.

 

I mean, there will be political reasons not to pardon yourself. But after this, say, President Trump in his second term—could be on the last—"I'm pardoning myself because I can't tell what I'm going to be prosecuted for because, last time, they went after me with these criminal charges that have never been brought or interpreted this way before."

 

John G. Malcolm:  I agree with you that I think that Judge Chutkan really did give short shrift to the argument about the potential chilling effect that this will have on future presidents and people who advise him. I mean, her entire thing was premised on the indictment's allegations that he knew that this was all a lie from the very beginning and that everything that he did was -- it wasn't a good-faith argument that election laws were being violated or that the election -- that he knew that these were all lies.

 

And actually, you say, "Well, he wasn't indicted for participating in an insurrection," and that is true. But in this latest filing by Jack Smith in which he talks about the extrinsic act evidence that he wants to admit, he's going to come close to trying to prove that.

 

So he says that he wants to, for instance, not only -- he wants to offer evidence of statements that Trump made back in the 2012 election about election fraud—in that case affecting Mitt Romney and in 2016 and before the election in 2020—but also that he was encouraging people to engage in violence and that even his claims now that if he is elected, that on day one, he's going to pardon some of the J6 defendants or issue grants of clemency, that is somehow proof that they did exactly what it is that he wanted them to do then, and he is rewarding them for having done what he wanted them to do then, that it was his -- always his intention to get them to go to the Capitol to do something violent.

 

So even though he wasn't charged with engaging in an insurrection, it seems that Jack Smith's going to try to sort of prove that up if this case goes to trial.

 

Prof. John C. Yoo:  This also raises the question of the second immunity decision—which itself, I think, would have been big news were it not for this one—which is the Blassingame case. And actually, here's a point I was reflecting on when this all started this morning was one thing the Supreme Court could do just to make things even screwier than they already are, would be to issue a decision -- or take the accelerated pleadings, hear the case, issue an opinion and issue an opinion that's someone like -- somewhat like the D.C. Circuit opinion in Blassingame.

 

So what the D.C. Circuit did in Blassingame was to say, "Following past precedent, like Fitzgerald, it cites all the same precedents we're talking about now." The Court says presidents, of course, have absolute immunity from civil lawsuits for things they do as president in their official duties.

 

And they even go farther and say, "And we're not going to say a president's official duties are limited only to their constitutional roles or implementing statutes but can involve presidents speaking on issues of the day, even if they don't have any power over that issue of the day." This is a really interesting, I would say, concession, actually, to the Trump lawyer's arguments. And this is an opinion written by the Chief Judge Srinivasan—who's quite a good judge, I think—and concurred in by Greg Katsas, who was President Trump's deputy White House counsel.

 

But then they send it back to the trial court and they say, "You, judge, figure out -- when President Trump was speaking on January 6 at the ellipse, was that private campaign reelection speech, or was that presidential official speech on a topic of the day? And if it's the latter, he gets immunity."

 

So here's what the Supreme Court could do in this case would be to say, "Okay. We reject the ideal of -- idea that a president is just always immune all the time." But if a president is legitimately carrying out presidential duty under the Constitution or statute or commenting on the topics of the day, that is -- that cannot be criminalized by a successor, right?

 

The reason why I think at the Justice Department, we thought that presidents could later be prosecuted for criminal acts is because if a president really violates a statute, then they're actually acting ultra vires. They're not acting as president. The president's job is to carry out the law. The only time a president could violate a law and not be prosecuted is if the Constitution allowed -- has a superior grant of authority to the president.

 

So what if the Supreme Court says something like that and says, "Okay. If a president is acting directly under the Constitution, the Constitution authorizes, for example, that Congress can criminalize the president nominating who he wants to the Supreme Court, but -- or the president is carrying out a statute, or the president is commenting on the issues of the day." He gets or she gets immunity from prosecution because, otherwise, a different branch of government -- Congress, is using the criminal laws to take away the president's power.

 

But if the president is acting outside that and is violating criminal law, then he is vulnerable to prosecution. And then the Supreme Court, what if they say, "We can't tell from these facts actually what happened"? So what if they remand for a preliminary hearing briefing and argument on this immunity question on the facts at the district court, just like the D.C. Circuit did last time? That's still going to delay this months and months and months, and then Trump will be able to appeal that.

 

John G. Malcolm:  Well, we should probably move on to Hunter Biden, but that was the president's argument. The president's argument was, "I have the constitutional obligation to take care that the laws are faithfully executed. All of this had to do with the election and election laws and whether the election laws were being carried out properly. So everything that I said pertaining to this election falls within the ambit of what I'm supposed to be doing to take care that the laws are faithfully executed."

 

I don't know what the Court is going to do with that. Judge Chutkan clearly sat there and said, "The line that I am drawing is that the allegation is that you really weren't doing that, that you knew that everything that you were saying was a lie, and that it was done for a totally improper purpose, which was to overturn the results of an election you knew you had lost." I don't know what the Supreme Court is going to do with that.

 

Prof. John C. Yoo:  Yeah. See, this is an interesting thing as a matter of procedure, but it's important because it will impinge on the timing, which is, does the judge get to have a hearing and make those factual determinations herself just to decide on immunity in the beginning, before you have voir dire and panel and a jury?

 

And then you might have to allow the jury to hear those same facts and make its own decision on whether to hold President Trump actually criminally liable. But it's actually the same set of facts that are determinative for both. This is unprecedented. Of course, this has never happened.

 

But John's right. We should move on to the Hunter Biden and impeachment issues, which themselves would require weeks and weeks of podcasts to unsort. So I think we're going to have to have one more episode before the end of Christmas if we can interrupt Santa Claus over here with the beard and everything from flying on his sleigh, dropping coal on everybody because in John Malcolm's book, everybody's on the bad list.

 

[Laughter]

 

Prof. John C. Yoo:    So let's take a look at the -- so Hunter Biden this last week was indicted for tax evasion, failing to pay taxes, failing to file for taxes. So let me just make clear. Sorry. Failing to file and pay taxes, some of which are misdemeanors. But he was also charged with tax evasion, which is a felony.

 

So he's charged with 3 felonies, up to 17 years in jail. I think each of those felonies has fines possible up to $100,000. I'm sure everybody saw the facts. In this only, I think, four-year period, Biden made seven and a half million dollars that we know of because IRS whistleblowers say there might be a lot more out there, but they were stopped from bringing the case -- furthering the investigation. He didn't pay about 2.4 million or --

 

John G. Malcolm:  1.4.

 

Prof. John C. Yoo:  -- 1.4 million in taxes.

 

And then the amazing thing -- the humiliating thing in the indictment was that special counsel, David Weiss, decided to show that Hunter could have paid these taxes easily in any of these years because, instead, he chose to spend it on a variety of activities that we cannot mention on a family podcast, which are inconsistent with Christmas, unless you think Christmas is a time where you get every present you could possibly want.

 

So, John, what do you make of this indictment? There's some people who -- Abbe Lowell, for example, has said, "Oh, this is old news. Everybody knew this. And if Hunter's last name weren't "Biden," he'd never be prosecuted for any of this."

 

John G. Malcolm:  Well, it may be old news, and this has all sort of been disclosed. But the claim that if he weren't Hunter Biden, that no one would have paid any attention to this, I think is just wrong.

 

I mean, I think the biggest thing was that he was going to be offered an opportunity to plead to two misdemeanors for all this taxed up. And the gun charge was going to go away completely had he not been named Hunter Biden. There's no way, I think, that that plea deal would have been offered. So there was a lot to say about this.

 

I mean, it was very tawdry. There were quotes from Hunter Biden's book, which I think is called Beautiful Things, in which he says that he was -- instead of paying his taxes, he was claiming expenses and paying an entourage of "thieves, junkies, petty dealers, over-the-hill strippers, con-artists and assorted hangers on." These are serious charges.

 

Prof. John C. Yoo:  I'm just really disappointed this was not an illustrated book or had photos. Look. I got it at a bookstore. Actually, I couldn't find it at a bookstore, but I looked. I said, "Where are the pictures?"

 

John G. Malcolm:  You can google pictures from his laptop. I'm sure you can find some stuff. So one thing that this certainly confirmed was that the whistleblowers—Gary Shapely and Joseph Ziegler—had said, "Look. We recommended these charges beforehand." But the 2 most serious tax years were 2014 and 2015. They were a slam dunk. And the statute of limitations were allowed -- was allowed to run on those charges.

 

Those were the years in which Burisma's CEO, Mykola Zlochevsky, was under investigation for corruption. Hunter Biden was brought onto the board for a million dollars a year, made lots of calls to the White House to try to put the kibosh on that investigation. That's when Biden went over to Ukraine and demanded that Viktor Shokin, the top prosecutor, be fired. And Viktor Shokin was fired.

 

All of that now is not going to be part of this criminal case. So that confirmed that. There are still no charges against Hunter Biden under the Foreign Agents Registration Act, although Weiss has said that the investigation is ongoing. So that was noteworthy, again, not new stuff, but noteworthy.

 

Prof. John C. Yoo:  Also, mail wire fraud. Money laundering, essentially, is not charged.

 

John G. Malcolm:  Yeah, no, no. There’s a lot. Look, potentially bribery with respect to his father—I mean, a lot of potentially serious charges that are out there. All of this is going to come up, I think, as part of the Joe Biden impeachment inquiry.

 

And he and Joe Biden's brother, James Hunter, had been subpoenaed to appear behind closed doors before the House Oversight Committee. And Hunter Biden had said, "I'll appear but only in public." That says to me that he wanted to turn a public hearing into some kind of a spectacle to try to defend his father. I don't know what he's going to do now.

 

Any other normal person would actually appear before this committee, they would either risk being held in contempt, or they would appear before the committee and take the Fifth. I don't know whether Hunter Biden is going to do that because the White House knows that Hunter Biden appearing before these committees either in public or behind closed doors and taking the Fifth when he's asked about payments to his dad and what his dad did for him and payments to other members of the Biden family and the fact that Hunter Biden didn't do anything other than "sell the brand," that's a bad look for this White House.

 

So I'm not quite sure what he's going to do. At the moment, he's doing podcasts in which he's saying that the Republicans are just out to bring down the president, and they're very, very sick people using language that actually Donald Trump tends to use. "It's very sad. These are very sick people," that sort of thing. But they're serious charges. I expect there'll be FARA charges eventually brought. Again, David Weiss does not appear to be moving at a very, very fast pace.

 

Prof. John C. Yoo:  One additional wrinkle -- I agree with what you say, John. One additional wrinkle I threw in that I wrote a little piece over the weekend in National Review is that Hunter Biden was pursuing two different gambits.

 

One was this idea of, "I'm going to demand that I testify publicly. No closed-door depositions. No video testimony beforehand," which is normal committee practice. I mean, I've done them, just like any legal proceeding.

 

But I agree with you. I don't see how any lawyer would allow him to answer any questions now that he's under further indictment. And, as you said, John, we know that the criminal investigation continues. So anything he said could be used against him.

 

So here's an idea I had—but maybe it's too outlandish—is what if Hunter is trying to get immunity from Congress? So he could say, "Look, why is Congress bringing me up? It's for impeachment. If you really want to impeach Joe Biden, then grant me immunity. I'll testify. Give me testimonial immunity, which Congress can do, as we saw -- have we seen in the past, although sometimes, prosecutors try to get around it, as they did in the Iran-Contra years with the North and Poindexter prosecutions.

 

But Congress can grant them immunity, and then they could really get to the bottom of whether Hunter really was paying off Joe—as you said, all these questions you had: "How much was Joe Biden involved with the business and the brand, and how much money was going to him, and what was actually being done with Ukraine and China and Russia and all these other businesses."

 

So I could see that as the ultimate gambit that Hunter might be throwing to the committee is, "Oh. If you really are conducting an impeachment investigation, then you shouldn't care whether Hunter Biden goes to jail because you're really just focused on whether Joe Biden abuses power. So grant me immunity. I'll tell you everything."

 

John G. Malcolm:  I don't see it, and I'll tell you why I don't see it. So, one, it's a little bit different from the Oliver North/John Poindexter situation with respect to Iran-Contra because, at the time, they were given immunity and testified before Congress. A lot of facts were not out. It was right after the disclosures of all of this.

 

So the prosecutions went sideways because there was no way to really make the case without using the testimony that Oliver North and John Poindexter had given before Congress. That is not the case here now with Hunter Biden. All of these facts are known. So even if they gave him immunity, it would be used immunity for anything that he would say while testifying. Those statements couldn't be used against him, either directly or indirectly. But I'm not sure, at this point, that the government needs any of that stuff.

 

And the other thing is, my guess is that one of the reasons why he might not take the Fifth if he was called to testify is because he now knows that his conduct is seriously imperiling his father's chances at reelection and dramatically increasing the likelihood that his father is going to be impeached and possibly—although unlikely—convicted.

 

And I suspect that Hunter Biden, at this point, sits here and says, "Well, if I've got to go down with the ship, I'll go down with the ship, but I'll do it to protect my father." So even if he was given immunity, I don't think it would make a difference in terms of his prosecutions. And even then, I doubt that he would cooperate. And if he did say something, he'd probably perjure himself and subject himself to even greater prosecution.

 

Prof. John C. Yoo:  Well, then he could claim he didn't really know what he was doing and he forgot about it all, which seems to be his main defense anyway. You mentioned it. I mentioned it. Let's maybe close up with this point about the House is going to vote in the next week, apparently, maybe next week but in this upcoming week on whether to formally initiate an impeachment investigation into Joe Biden.

 

You're there in Washington, D.C. Does the new speaker have the votes? They just kicked out one of their -- the members that make up their bare majority, George Santos. It would have been interesting to see how Santos voted. And then you have Kevin McCarthy says he's going to leave Congress by the end of the year. I mean, the majority is getting smaller and smaller.

 

Do you think that Speaker Johnson has the votes to carry off impeachment investigation. I can't remember. Are there at least a dozen members of the Republican House majority who sit in districts that Biden won? That's a tough vote for them in particular.

 

John G. Malcolm:  That is a tough vote for them. But, of course, they're not voting on whether to impeach or not at this point. They're just deciding whether to formally march down that road for an inquiry, which makes it a little bit easier for them to enforce their subpoenas. And I think that there's been enough sort of arguments being made that the White House is really stonewalling in terms of turning over documents that I think the votes will be there to announce this impeachment inquiry.

 

The House Oversight Committee and the Judiciary committee issued a 77-page report pointing out all the irregularities with respect to the Hunter Biden investigation and making a preliminary case for going after Joe Biden. So I think that the votes are there, and there's also more material that's coming up.

 

So the National Archives just announced they had previously turned over about 20,000 pages of emails from Joe Biden, including emails in which he was communicating with Hunter and his business associates using aliases. They've just announced that they're going to turn over another 62,000 pages worth of documents.

 

So I think the perception is there that the White House is stonewalling and that by formally launching this impeachment inquiry will make it easier to get the evidence needed to conduct a proper inquiry. So, yes, you're right.

 

Kevin McCarthy is leaving. George Santos is out. It's a bare majority. But I think the votes are there, and I don't think they'll take the vote until they're sure they have them. They're going to whip the members to see where they are.

 

Prof. John C. Yoo:  Interesting. So charming, your naivete in saying, "Oh, you just started an impeachment investigation. That doesn't mean you're going to vote for impeachment." How charming and shocking in your naivete.

 

John G. Malcolm:  You're on the naughty list.

 

[Laughter]

 

Prof. John C. Yoo:  So, Emily, I don't know if we have any questions. I now realize that we didn't say that people should type their questions into the Q&A box or chat box. So I don't know if we have any questions. But people should, if they have a moment, and Emily will read the questions to us, and we'll go from there. I'm sorry we were a little long. We have 17 minutes for questions.

 

Emily Manning:  That's right. So if you have a question, please enter into the Q&A function at the bottom of your screen, and we'll do our best to answer as many as we can. So we'll turn to the first member of our audience. They're asking if we can anticipate the new Hunter Biden indictments impacting his scheduled congressional testimony. Do we expect the testimony to go forth as planned this week?

 

John G. Malcolm:  I don't.

 

Prof. John C. Yoo:  Really?

 

John G. Malcolm:  Yeah. Well, I mean, he said he's not going to appear behind closed doors, and Comer has said, "It's only behind closed doors. We're not going to have a public hearing." You now had the indictment. So I think what will happen is he will refuse to appear, and then there will be a vote whether or not to try to hold him in contempt. But I could be wrong about that.

 

Prof. John C. Yoo:  We didn't play it all out, but John's right. If Hunter really wanted to play hardball, he could refuse to show up, be held in contempt of Congress—although close vote. And then the contempt of Congress has to be prosecuted by the Justice Department in Washington here in the District of Columbia.

 

John G. Malcolm:  Good luck with that. Right.

 

Prof. John C. Yoo:  Now, that would be an interesting problem for the Justice Department. So the interesting thing is, in the past times where the Justice Department has refused to prosecute contempt of Congress, it has said it was because the House investigation was illegitimate, right? For example, they were going after executive branch officials and trying to override executive privilege.

 

This one doesn't have that flavor to it. There's no constitutional claim that Hunter can make that says that the contempt of Congress should not apply to him. I think it would be a real test for Merrick Garland about whether he's going to go through with prosecuting a contempt of Congress, or he's going to claim, "Oh, I'm not bringing it because there's some kind of reason, some constitutional legal reason why Hunter should be immune from contempt of Congress when every other private citizen is not."

 

John G. Malcolm:  My guess is he'd point to the current indictment and say, "Well, he has a clear Fifth Amendment right, and it's not in the public's interest to pursue this." I would have a very hard time imagining this Justice Department pursuing a contempt of Congress prosecution against Hunter Biden. But we'll see.

 

Emily Manning:  So the next member of our audience is asking that, "It seems like Trump's legal challenges were initiated by various local state prosecutors. Why do you think we are not seeing state prosecutors bringing charges against the Bidens?"

 

John G. Malcolm:  Well, so you have two state prosecutors—Fanny Willis and Alvin Bragg—bringing charges against Trump. Foreign Agents Registration Act is a federal statute. Failure to pay income taxes -- these are federal income taxes. Those are federal charges.

 

I mean, you could end up having bribery, money laundering charges. Most of them would be for overseas activities. I'm not sure is the answer to that. I'm thinking part as well, Hunter Biden has been living in Delaware and in California, which are very blue states. And I have a hard time imagining the district attorneys in those states pursuing Hunter Biden, particularly because the feds are going after him.

 

But look, as John and I talked about, when you had the local prosecutors going after Donald Trump, we sat there and said, "Well, I'll bet you in the future, there'd be a lot of locally elected DAs in red states, in red jurisdictions that might be very interested in things that Joe Biden is doing when he leaves office."

 

Prof. John C. Yoo:  I agree with John. I think that if we allow the Manhattan DA and the Georgia -- the Fulton County DA to go forward in this way, they are opening up the door to reciprocal prosecution of democratic politicians.

 

It just occurred to me. One thing that John mentioned which was quite right is that the whistleblowers from the IRS have pointed out that the statute of limitations had lapsed on some of the worst tax evasion issues. But that statute of limitations and those federal crimes don't limit what county DAs can look for, right?

 

There are maybe red county DAs out there who can go after the conduct that the federal government is barred from pursuing because of the statute of limitations. And also note that this last indictment of Hunter was brought in California, and the DAs in California are elected by county. And the most populous counties are mostly Democrat. But the number of counties, the vast majority of counties in California, are Republican.

 

So you could just be one of those counties just outside LA county, and you might want to bring an investigation and charges because maybe Hunter wired some money through some bank or branches there, too. Who knows? But that's what's being opened up now by allowing these state and local DAs to go after President Trump.

 

Emily Manning:  So former President Donald Trump was scheduled to testify in court today in his New York civil trial but decided not to at the last minute. Why do you think there was a sudden change in his plans to testify? And was this choice wise?

 

John G. Malcolm:  Well, he's already testified twice now in his civil trial. He testified because Letitia James called him as part of the state's case-in-chief. And I think he testified already once in his defense case.

 

I'm not sure what he would have said today, but I can only repeat what he said. He actually appeared in court last week and heard one of his team's experts testifying. And he said, "The guy was brilliant. I have no idea who he is, but he said there was no fraud, and everything was on the up and up, and it was great. And he's a wonderful guy." He didn't go so far as to say, "He's going to be my next commerce secretary if I win." But he was praising this guy to the Hill.

 

And so what he said was, "This guy has proven that this is all a sham. I'm no longer needed to testify." I don't know beyond that. I mean, usually Donald Trump likes testifying because his poll numbers go up, but for whatever reason, he felt this wasn't a good -- it wasn't necessary this time around.

 

And that trial is, by the way, now going to wrap. I mean, it's going to wrap very soon. I don't think the outcome is certainly -- I mean, Judge Engoron has already determined that Donald Trump and his business has committed fraud. It's now a question of how bad the penalty is going to be, and we'll soon find out.

 

Prof. John C. Yoo:  I agree. I think what was going on actually was Trump's appearances and testimony really were not designed to actually try to win the case. The case is over. The judge already issued summary judgment for the government—for New York in this case.

 

And these proceedings have mostly been about how bad are the damages going to be. And a lot of the arguments that Trump made in his testimony and these lawyers made had been rejected already in writing by this district judge, by this trial judge.

 

So I think what Trump was doing was using his appearances more as a campaign platform. I mean, he's not making actually that many campaign appearances. But every time he appeared in these trials was a great platform for him to make the claim that he was being persecuted and that the Biden administration was pursuing a two-tier justice system, as he said.

 

So maybe he's decided, "I've milked that one already. Everybody knows now I'm already 50 points ahead in Iowa. I don't really need to do this anymore." So I just don't think the political usefulness of appearing in court was very high anymore for Trump.

 

John G. Malcolm:  I thought it was very interesting, too, that in Patricia Mallette's order from the D.C. Circuit—which upheld most, but not all, of Judge Chutkan's gag order—she cited as examples of the real threats that people face as a result of Trump's tweets and whatnot. She cited the statements that he'd made against Judge Engoron and Judge Engoron's law clerk, in her opinion, is the real threats that people face as a result of the president's -- former president's use of social media.

 

Prof. John C. Yoo:  Actually, mind you. That's another thing we didn't get to today was the upholding of the gag order, which I still find incredible. And it's not the kind of issue the Supreme Court usually takes. There's not a huge legal issue. It's mostly a factual issue.

 

But I cannot believe that the court -- the federal courts are allowing the breadth of this kind of gag order to really stifle candidate -- major political party candidates, who's ahead of the incumbent president, not being allowed to speak about a trial that has to do with his views and involvement in the public issues about the last election. It's incredible to me that this is being permitted and this is not a violation of the Free Speech Clause.

 

John G. Malcolm:  Yeah, they did narrow it a little bit, but only a little bit.

 

Emily Manning:  So an audience member is asking if you can elaborate on the timeline of the impeachment vote. How can we see this playing out in 2024?

 

John G. Malcolm:  Well, I think that they're going to take a vote on the resolution either this week or next week. Assuming that it passes, that will formally initiate an impeachment inquiry, and it lays out most of the rules that will apply, and then it will proceed on whatever timeline the Republican -- I mean, it's largely a political process.

 

They control the majority both on the Judiciary Committee and on the Oversight Committee. Those are the two committees that will conduct the inquiry. And it can take however long those committees want it to take. They could decide they have enough evidence to proceed with an impeachment vote early in the year, or they could decide they want to hear from witnesses and subpoena more documents and drag it out a little bit until closer to the election.

 

Prof. John C. Yoo:  Here's one other interesting thing. I don't know if John agrees with me on this, but I think a lot of the factual case for impeachment has yet to be made. And so, to me, I think that the Impeachment Clause would only trigger for actions that Joe Biden took while in office as president.

 

You could say, for example, that his family's been bribed, that Hunter Biden has been bribed. Even though this seems to be what Mr. Comer has found, that money from abroad has been moved into accounts that personally benefit Joe Biden. That seems to have primarily taken place before he was president.

 

What we need to see -- but we really have only the -- just the beginnings of it is what happened within the Biden administration? Was there obstruction of justice? Was there interference with the whistleblowers when they were trying to investigate this at the IRS? As those IRS whistleblowers reported, was the Justice Department slowing down the investigation? John mentioned, were the cases -- were important issues lost because of incompetence in allowing the statute of limitations, incompetence or worse, allowing the statute of limitations to run?

 

So there's still a lot to learn about what it seems to be the second half of the impeachment equation, which would be, "What abuses of power occurred while Biden has been president?" So all we have, really, are the IRS whistleblower allegations. We've had testimony from David Weiss, the special counsel, which is in conflict with what the whistleblowers say.

 

But you would want to have the deputy attorney general and the attorney general and the White House counsel to testify about this under oath before the impeachment. This claim that I hear House Democrats making that, "Oh, this is all old -- again, all old news. Everybody's heard all this. There's nothing there," I just don't think that's plausible because that whole part of the claim is just yet to be investigated.

 

John G. Malcolm:  So I only agree in part with what John just said. So this 77-page filing that the House Judiciary Committee and the House Oversight Committee just published about all the irregularities in the Hunter Biden investigation are an early attempt to try to make the case that John just made, which is that there was a lot of obstruction going on and interference from main Justice—and most likely at the direction of the president—to try to bring this within the current administration.

 

I mean, you've got Biden using aliases, shell companies being set up all over the place, $24 million going to Hunter Biden and Biden associates and family members, some of it going to the now current president. So it's all pretty shady stuff.

 

I think Joe Biden has clearly been shown to have lied to the American people when he said, "Oh, I had no dealings. I didn't know anything about Hunter's business. I never talked about Hunter's business. I didn't meet with any of the people affiliated with Hunter's business." I assume that's all been proven false.

 

Where I disagree with John is that a lot of these allegations are pertaining to things that Joe Biden might or might not have done—the most prominent being his instrumental in the firing of Victor Shokin—when he was vice president. And it may not have benefited him directly in the sense that there may not have been bribes paid directly to Joe Biden. But if he's doing something at the behest of his kids and his kids are being paid handsomely, I think that suffices as a quid pro quo.

 

And I think it says a technical matter, he could be impeached and convicted for official actions that he took prior to becoming president. There's an example of this, which is it was a federal judge who was impeached and convicted named Thomas Porteous. And one of the counts of conviction was that before he became a federal judge, he lied on the background check forms that were used prior to becoming a federal judge. And that was one of the bases by which he was convicted and thrown out.

 

So I think there needs to be a connection, a federal nexus. I think that if you could tie him to actions that he took while he was vice president, that would probably be good enough. But in terms of the appeal of actually making headway towards trying to get a conviction, I think that John is probably right that the case is made immeasurably stronger if you can tie it to actions that Joe Biden did while he is president.

 

Emily Manning:  So we have just a couple of minutes left, so we have time for one more question. Another case starting this month is the defamation case against Rudy Giuliani for defaming two Georgia poll workers in 2020. Will it impact any of these criminal cases?

 

Prof. John C. Yoo:  I defer completely to the expert on all things Georgia—John “Robert E. Lee” Malcolm.

 

John G. Malcolm:  That trial, I think is beginning this week. It's a defamation case. It's based on public statements that Rudy Giuliani made against Ruby Friedman and whoever the other person is.

 

Rudy Giuliani has essentially admitted that those statements were false but had said, "Oh, but they weren't defamatory. I didn't do it intentionally to try to hurt people. I just made false statements. I had a good-faith basis for making these statements."

 

I don't think it's going to go very far in terms of the civil case, which I think he will lose and end up having a civil judgment against him of several million dollars—although he may be a judgment proof at this point. I'm not sure that it's going to end up having any impact on the pending criminal case against him.

 

Emily Manning:  All right. We are now 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. We greatly 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]