Conservatives Talk Presidential Power: End of Year Update on Trials, Impeachment, and Immunities

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As 2023 comes to a close, John Malcolm and John Yoo continue their discussion of presidential power as they review the latest updates on former President Donald Trump's civil and criminal cases, the potential House impeachment vote, presidential immunities, and Hunter Biden's defiance of the House subpoena.

Featuring: 

John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation

Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley; Nonresident Senior Fellow, American Enterprise Institute; Visiting Fellow, Hoover Institution

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

[Music]

 

Jack Capizzi:  Well, hello, and welcome to today’s Federalist Society virtual event. This afternoon, Thursday, December 21, we’re excited to present “Conservatives Talk Presidential Power: End of Year Update on Trials, Impeachment, and Immunities.” My name is Jack Capizzi, and I’m an assistant director of practice groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.

 

Today, we are delighted to be joined by John Malcolm, Vice President of the Institute for Constitutional Government and Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow at The Heritage Foundation, as well as Professor John C. Yoo, the Emanuel S. Heller Professor of Law at the University of California at Berkeley and a Nonresident Senior Fellow at the American Enterprise Institute, as well as a visiting fellow at the Hoover Institution. After our speakers have given their remarks, we will turn to you, the audience, for questions. If you have a question at any point during the program, please type it into the Q&A feature at the bottom of your screen, and we will handle those as we can towards the end of the program. With that, thank you all very much for being with us. Professor Yoo, over to you.

 

Prof. John C. Yoo:  Thank you, everybody, for joining us. This is maybe, we hope, the last episode of the year, but we’ve been saying that for the last three weeks, John and I, on presidential power and the Trump trials and the investigations, executive privilege. And now, who knew, we’re going to talk about presidential disqualification because just earlier this week the Colorado Supreme Court, as I’m sure everybody listening knows, held that the Fourteenth Amendment requires that Donald Trump be disqualified for running for president because, as the court found, Donald Trump participated in an insurrection or rebellion against the United States on January 6, 2021. So let’s start, John. How are you doing? I see you’re dressed for a funeral. Are you interring the Trump presidential campaign today?

 

John G. Malcolm:  No, I wouldn’t quite go that far. I am interring the Supreme Court’s deference to stay out of the presidential election.

 

Prof. John C. Yoo:  Very good. So John, first, what do you think about the merits of the decision, and then maybe, second, after that we’ll talk about what we think is going to happen at the Supreme Court? So first, what do you think about the merits of the decision?

 

John G. Malcolm:  I do not think it was a well-reasoned decision. So these are seven justices on the Colorado Supreme Court. They’re all appointed by Democratic governors. This was a 4-3 decision, and the four justices in the majority -- it was a per curiam opinion, so we don’t know who authored it.

 

It was a very lengthy opinion. It was 130 some odd pages, and they said that Colorado’s election code gives the court jurisdiction over this, that the procedures which are really, really spotty and short circuiting, were perfectly fine in terms of providing due process to Donald Trump, that the insurrection clause clearly does apply to him, that it applies to presidents, and that he violated it, that his speech was designed under the Brandenburg standard to incite a riot and that it did so and that was his intent. And it doesn’t even say really that he incited an insurrection; really it says that he participated in it by egging them on and continuing to egg them on once they were inside the Capitol. They also held that Section 3 of the Fourteenth Amendment is self-executing.

 

I think it’s problematic on all sorts of levels. The three dissenters, by the way, each wrote separate dissenting opinions. They all agreed that Colorado’s election code, which calls for these very expedited proceedings -- one, they pointed out that the trial judge did not comply with the time limits in that statute. But they said that there’s no way that Colorado’s election code was designed to take on something as fact intensive and complex as an issue like this. It was designed to take on did you pay the filing fee, have you met the residence requirements, are you the right age -- things that are very easy to determine, nothing like this.

 

So they said that Trump’s due process rights were completely violated. And Justice Carlos Samour wrote, I think, the most substantive opinion. He made the argument that in his opinion base on Griffiths case, which we’ve discussed before; based on Section 5, which enables Congress to pass legislation to implement the provisions of the Fourteenth Amendment -- that Section 3 is not self-executing, that it requires a law passed by Congress, that at one time there was such a law actually but that Congress had repealed it. It was either in 1938 or 1948 -- that right after the events of January 6, 2021, the House of Representatives considered a bill for implementing the disqualification clause, but it died in the House.

 

And he said really the closest thing that there is on the books is this criminal provision, 18 U.S.C. 2383, which makes it a crime to engage in an insurrection. And that is the very charge that Donald Trump was acquitted of in the Senate. And they say hey -- by Jack Smith. He could’ve been charged with this. He not only hasn’t been convicted of this; he hasn’t even been charged with this.

 

The other justices did not deal with the issue about whether this section even applies to Trump whether he could be considered president as an officer of the United States. Justice Samour in a footnote said this is a really palatable argument, but because I’m dissenting on these other grounds, I don’t really need to reach that opinion. So this will certainly go up to the Supreme Court.

 

There are at least 13 other pending challenges raising this issue in other states. In two other states, Arizona and Michigan, these issues are on appeal. Yesterday, the California Lieutenant Governor urged the secretary of state to throw Trump off of the ballot in California citing this Colorado decision. I do not see how the Supreme Court, god help them, can stay out of this even though I’m sure that they wish they could. And they’re doing that at the same time that they’re going to consider Jack Smith’s motion to expedite and skip the D.C. Circuit on the appeal of Trump’s immunity claim.

 

Prof. John C. Yoo:  So I agree with you on the merits. It’s interesting. There are multiple grounds, I think, on which the Colorado Supreme Court got it wrong. I think on the merits of it, which you’ve concentrated on -- did Donald Trump actually commit or was he involved in an insurrection? The question is can an appellate court or here a trial court make that decision without actually really having a trial.

 

Does that mean that anyone, any official, could decide based on whatever procedures they chose to use who’s an insurrectionist and who’s not an insurrectionist? Which feeds into the non-self-execution argument that unless Congress passes a law setting out how you make that determination, then you actually do open it up to every county clerk deciding for themselves who is an insurrectionist or not. And what’s the limiting principle?

 

You don’t have to limit it to Donald Trump either. What if people start saying, oh, I think Joe Biden’s an insurrectionist? How do you allow -- it’s not just 50 different states. There are about 3,000 counties out there all with their own election officials.

 

To me, the main flaw in the case is on the merits of the application of the text of the Fourteenth Amendment. As you mentioned, I think the strongest issue here for Trump is that the president’s just not covered by the text of the Fourteenth Amendment. There’s two kinds of coverage provisions. The first is what kind of office did you have at the time of the insurrection, and then the second part is and then what offices are you forbidden from assuming. And so neither of them refers to the president. The closest either comes to is “officer of the United States.”

 

John G. Malcolm:  Right.

 

Prof. John C. Yoo:  And the Constitution -- generally, there might be one exception maybe, but in general the Constitution’s text uses “president” and “officer of the United States” separately. They are distinguished. The President of the United States, like members of Congress, is elected. Officers of the United States are appointed. They’re discussed differential in the impeachment clause. They even take different oaths upon taking office.

 

It’s very hard, I think, for those who want to bar President Trump under the Fourteenth Amendment to show that “officer of the United States” as a term of art in the Constitution includes the president. And I actually thought the majority opinion here was weak on rebutting this argument. This argument the Supreme Court has addressed in a variety of different contexts, obviously not this one.

 

This is the first time this issue has ever gotten to the Supreme Court. But in other contexts, the Court has said do not read officer of the United States to include the president, both in statutory and constitutional cases. I think most recently in the free enterprise case just a few years ago. So John, you mentioned what you think the Court is going to do. So what do you think the Court is -- first, is the Court even going to grant this case? One important question. And then second, what do you think the Court’s going to do in the case, and what effect will that have on the election calendar?

 

John G. Malcolm:  I have a hard time imagining that the Court could duck this case at this point, particularly now with this one ruling by the Colorado Supreme Court. My guess is with two cases on appeal, 13 pending cases in other states, there’s going to be somebody else who’s going to say what they said and disqualify Trump. Justice Samour in one of his footnotes sat there and said that some states don’t even really have election codes to do any sorts of challenges like this, so you’re going to end up having these piecemeal stuff all around the country.

 

There was one other argument I forgot to mention that I think Justice Samour made that I thought was a very, very clever argument which is to sit there and say -- on the issue of whether this is self-executing or not saying, look, the reason why this provision was put into place in the first place -- this was immediately in the aftermath of the Civil War. It was part of the Reconstruction amendments. It was designed to prevent states, particularly the southern states, from having the ability to determine who was qualified and not qualified for office. He said Congress wanted to make that decision by implementing procedures and coming up with standards and having an ability to eliminate the disqualification, a unique provision in the Constitution, which they did with respect to the former rebels in the southern states.

 

I would be very, very surprised if the Supreme Court upholds this decision. I don’t think they can really duck it. I suppose they could duck it that the process that took place in Colorado did not accord or afford Donald Trump with due process, but then that’s just kicking the can down the road on the substantive issues. And I just don’t see how they’re going to be able to avoid it.

 

And I don’t know whether it’s going to be a nine to nothing decision, but the Court is once more going to be thrust into the election in a way it has not been since Bush v. Gore in 2001 or I guess in December 2000. And I think it’s just going to be a complete mess. But of course, if they decide the issue and they affirm what Colorado has done, then it’s done because it will apply to every state. Donald Trump will just be off the ballot everywhere.

 

Prof. John C. Yoo:  Well, that’s a remarkable thing that I don’t think people have focused on, which is suppose the Court granted cert and upheld the Colorado Supreme Court. That would essentially mean that the Supreme Court is blessing this interpretation of the Fourteenth Amendment.

 

John G. Malcolm:  Correct.

 

Prof. John C. Yoo:  And it would be the Supreme Court that would disqualify Donald Trump, not just in Colorado but throughout the entire country. I don’t know if you’re -- and this is not getting to the substantive law. This now gets into sort of judicial politics, but I have a hard time seeing Chief Justice John Roberts, the one who wants to keep the Court out of politics, leading the Supreme Court into eliminating from the ballot a guy who’s leading by 50 points in the primary states or 50 or 30 points in the early primary states and could well be the nominee of one of the two major political parties. That would be to me going deeper into presidential electoral politics than Bush v. Gore, which if you recall was the Court saying that the state of Florida’s courts were using inconsistent standards in how it counted ballots from county to county.

 

So it's one issue. The second issue, though, and here’s where I think everybody -- I think that the Court, too, will grant cert. But here’s the case for the other side, which is suppose you’re not sure how the Court would vote. Suppose you’re worried that there might be five votes on the Court to affirm the Colorado Supreme Court and you don’t want the Supreme Court to be the one who decides nationwide whether Trump is going to be on the ballot or not. Maybe you don’t grant cert. Maybe you let Colorado have its way and wait for another case, wait to see if there’s a conflict.

 

That would be the traditional way the Supreme Court would exercise its cert power would be to see if there’s some kind of conflict between two state supreme courts on this issue. Although, Minnesota has already rejected this argument, though on First Amendment grounds, not on the Fourteenth Amendment grounds. That might be the argument. You could see Chief Justice John Roberts worried about that too and maybe say as you said kick the can down the road. Let Colorado go this way, but we’ll see another case. Maybe this doesn’t get anywhere in any other state. And then we can not have to intervene.

 

John G. Malcolm:  Look, with two cases still on appeal and actions pending in 13 other states, and with the California lieutenant governor asking the California secretary of state to rely on this to bounce Trump I just can’t imagine one or two or more states not taking the bait and disqualifying him. I think this is terrible.

 

And by the way, if the goal is actually to like these indictments lead to Donald Trump’s defeat, it may have the exact opposite effect. Once more, all people are talking about is Donald Trump. Nobody’s talking about Nikki Haley’s momentum or how Ron DeSantis is going to do in Iowa. And anybody who was going I don’t buy all the stuff about a two-tiered system of justice and you’re really just out to get Donald Trump, something like this is going to say, ha, you know, maybe I should rethink that. Maybe there really is something to this. I think that this is going to take Donald Trump’s bait, and they’re already on steroids. And now they’re on mega steroids.

 

And I can’t see the Supreme Court ducking this much as I’m sure they would all like to. And I’m not even sure -- I could see the three -- I could conceivably even see this being a 9-0 decision with Sotomayor or Ketanji Brown Jackson or Elena Kagan writing some kind of an opinion concurring in the result or concurring but blasting Donald Trump and all the horrible things that they think he did after the election.

 

Prof. John C. Yoo:  Yeah. One last issue is that you’ll see supporters of the decision make is hey, you conservatives, don’t you believe in federalism? Why should the Supreme Court intervene early? Of course this is the same argument you’re going to see on the flip side.

 

People could say actually Trump’s inconsistent with the Jack Smith case where the Trump campaign is saying slow down, slow down. Don’t grant expedited appeal. But here, the critics of President Trump will say this is up to Colorado and its Supreme Court. And you’ll notice the majority opinion actually cites and quotes a lower court opinion written by then Judge Neil Gorsuch saying that states have the right as part of running the elections and managing the ballot and applying the qualifications clause of the Constitution and knocking people off the ballot because that’s federalism for you.

 

John G. Malcolm:  I think that’s very farfetched. It’s one thing to argue states should be laboratories of democracy in terms of how they implement various policies that affect each state. But when you’re determining what the federal Constitution says about who is disqualified and who isn’t disqualified, that’s like the Supreme Court -- or two or three circuit courts invalidating Obamacare and the Supreme Court saying well, it’s fine to invalidate Obamacare there but not here. It’s a national policy. It’s a clear federal constitutional question. It has to do with who was elected as president for all of us. This is not a question of, gee, states should have the flexibility about implementing a particular policy that has an effect on the economy or what have you.

 

Prof. John C. Yoo:  I agree. I think the odds are extraordinarily high the Court will take the case. As you just mentioned, the other ground for Supreme Court cert review is just national importance of the issue. And I tend to think -- I’m happy to be proven wrong, but I tend to think that if you’re the Court and thinking about it as a political matter, overruling the Colorado Supreme Court actually gets the Court out of politics rather than deeper into politics because then you don’t have the Judiciary deciding whether Donald Trump is eligible to run. The voters can decide on Donald Trump. In fact, I think that’s what the other Republican primary candidates are out there saying right now is I want the voters, not the courts, to decide whether Donald Trump should be president. I think that’s Chris Christie’s line.

 

John G. Malcolm:  I wonder what --

 

Prof. John C. Yoo:  Go ahead.

 

John G. Malcolm:  I wonder whether Jack Smith will now reconsider and supersede his indictment by adding a charge under 2383.

 

Prof. John C. Yoo:  Which is? Explain for everybody.

 

John G. Malcolm:  That criminalizes participating in an --

 

Prof. John C. Yoo:  In an insurrection. Yes.

 

John G. Malcolm:  And in fact one of the justices who said, look, there’s this provision out there. One could interpret that, if you will, as an implementing that triggers the disqualification clause. And in fact, that justice said -- the dissenter said and if he had been charged and convicted of that offense, I wouldn’t be writing a separate dissent. I would be joining the majority.

 

I don’t think that’s going to happen. I think that Jack Smith, if he thought that he had a provable case, would’ve brought it. I think he would be particularly seen as being political if he did that in light of this Colorado case, but I suppose that’s another arrow in his quiver if he wants to shoot it.

 

Prof. John C. Yoo:  Well, just a little side note is that the President of course is entitled to believe Donald Trump committed insurrection. The special counsel who apparently works for him did not charge President Trump for insurrection, and in fact the Senate acquitted Trump in the second impeachment of incitement to insurrection. So one wonders why President Biden who made these comments yesterday doesn’t instruct the special counsel to edit the charge you’re asking for, John, if in fact he believes what he’s saying. But that’s just a political point. It’s not a legal point, and I have to say that.

 

Before we move on to the next topic, I should be reminding everybody we will be reserving significant time for questions and answers, so if you’d like to ask a question, type it into the Q&A box which is at the bottom of the Zoom panel. Okay. So let’s turn to the second topic. Again, the Court just can’t get out of it no matter how much they try. And this was the grant -- we didn’t get a chance to talk about it on the last episode of our podcast here.

 

But the Supreme Court granted cert in a case called Fischer, which involves perhaps the central charge that’s being brought against many of the January 6 rioters but also against President Trump. And this is a question of whether the activities on January 6, whether you think they were right or wrong, justified or not, do they rise to the level of obstruction of a process or proceeding of Congress? So John, take us away. First, what do you make of, again, the merits of this case and then the implications for Trump and the presidency of the Court taking this case.

 

John G. Malcolm:  So the case that they granted Donald Trump is not one of the defendants, but as you correctly point out two of the four charges in the case that’s pending before Tanya Chutkan, which is now stayed while he’s appealing his immunity -- the denial of his motion to dismiss on immunity grounds. Two of the four charges in that case involve this charge.

 

So here you had three January 6 defendants. They were in the Capitol, a guy named Joseph Fischer, Edward Lang, and Garrett Miller. And they are charged with a variety of offenses including violent offenses, assaulting Capitol police officers and things like that. And they’re not disputing the sufficiency of the charges against them on those other grounds, but they each moved to dismiss one charge that they had in common. And that is this charge of violating 18. U.S.C. Section 1512 C2 which has to do with obstructing an official proceeding.

 

And that statute -- it’s all a matter of statutory interpretation. The statute -- and I have to read it because it's important. It says “Whoever corruptly” -- and then this is sub provision C1 “Whoever corruptly alters, destroys, mutilates, or conceals a record, document, or other object or attempts to do so with the intent to impair the object’s integrity or availability for the use in an official proceeding or” now subsection C2 “otherwise obstructs, influences, or impedes any official proceeding or attempts to do so shall be fined and subject to a potential 20-year penalty.” All right.

 

These guys argued and the district court agreed that the C1 provision, which talks about mutilating, destroying documents, limits the scope of C2, the otherwise obstructs provision. And they basically said what these guys did -- yes, what Congress was doing in terms of certifying the vote, that was an official proceeding, but this does not fit within obstructing an official proceeding because that statute only reaches things like evidence spoliation or the ability to ascertain evidence, destroying evidence, fabricating evidence, witness tampering, things that get at evidence either for an official proceeding or an investigation. So he dismissed the charges. It went to the D.C. Circuit, and there was a split.

 

You had Florence Pan writing the majority opinion, joined by Justin Walker, saying that “otherwise obstructs” is a catch all. It’s any type of obstruction of any kind of an official proceeding qualifies. It does not have to be limited to evidence tampering in some way. Greg Katsas wrote a dissent that said, no, given the placement rules of statutory construction, this statute was passed as part of Sarbanes-Oxley in the wake of the Enron debacle in which Arthur Andersen for two weeks shredded tons of documents. It all had to do with obtaining and preserving the integrity of evidence. And so what happened with these guys when they went into the Capitol did not involve trying to destroy or tamper with evidence.

 

By the way, there’s charges pending against like 300 other of the J6 defendants. And the Supreme Court has decided to hear this case, and if they agree with Greg Katsas’s position and say that, no, obstruction of an official proceeding has to do with evidence preservation or ascertainment, then those charges will fall against these J6 defendants because that’s not what happened in the Capitol on January 6. And they will also fall against Donald Trump.

 

I think the fact that the Supreme Court has now granted cert in this case also dramatically increases the likelihood that that trial before Judge Chutkan which is at the moment scheduled for March 4, is not going to proceed on that date, even if they decide, which I don’t think they’re going to, to grant Jack Smith his motion to expedite proceedings and bypass the D.C. Circuit to consider the immunity claim because half of the case against Donald Trump is now going to be decided by the Supreme Court in this Fischer case.

 

Prof. John. C. Yoo:  So this is interesting just as a procedural matter. You could see the Trump defense pitching to Chutkan that she should hold the trial until you find out from the Supreme Court whether this is a plausible charge or not. Judge Chutkan doesn’t seem to show much openness to delaying the trial. But I think that would be a very sensible thing to do given as you say, John, two of the four charges in the prosecution could be immediately knocked out by a Supreme Court decision, which will come by the end of June.

 

So I would think the sensible thing here would be for the district judge here to -- suspend is the wrong word but delay the trial or have it move on other grounds. Or I guess if you were Smith, you might consider dropping the charges in some way or suspending them. But I don’t think that Smith has any incentive to do that because as you say, John, if you look beyond the Trump cases and beyond the Fischer case itself, this is one of the central charges that is used against most of the January 6 protestors and rioters, protestors whatever you want to call them. And it’s the one that actually produces a long sentence if you were --

 

John G. Malcolm:  Yes, it’s 20-year felon.

 

Prof. John C. Yoo:  Yeah. If you’re the Justice Department, you’re not putting people away for a very long time on misdemeanor charges for trespassing on the Capitol grounds. And if you also look at the January 6 prosecutions, they have not been charging that the January 6 defendants are part of a conspiracy with Trump to commit insurrection. In fact, they’ve been very careful not to bring in President Trump in these prosecutions. So this charge, this Sarbanes-Oxley type charge is actually very -- is a central part of the way the Justice Department has been pursuing these cases.

 

I quite agree with you, John. I think it’s a matter of straight statutory interpretation. This secondary sort of catchall clause, it’s the way -- how do I put it? You see this all the type actually in Supreme Court statutory interpretation cases where Congress makes up a list, and then they throw some kind of a thing at the end. Oh, and include all the stuff we couldn’t think of. But that doesn't mean it goes beyond the subject matter of the provision as a whole. This is not exactly the application, but I love to use legal Latin because it’s such bad Latin. But this is the noscitur a sociis canon, which is you know something by its friends. Which is the idea of it’s something is in a list that thing has the character of all the other things in the list. And so I just took a much longer, fancier way to explain what John just said, which is --

 

John G. Malcolm:  -- [Inaudible 00:29:38] the Supreme Court had a case. It was a slightly different statute also part of Sarbanes-Oxley a few years ago. It had to do with the destruction of -- it listed a whole bunch of documents, this, that, and the other or other tangible objects. It was the Yates case, and it involved the National Oceanographic Group boarding a fishing vessel, finding that there were all kinds of undersized fish on the boat.

 

They then left, and by the time they got back to the dock where they were going to document all these crimes, the undersized fish had all been thrown overboard. And they charged them with violating the Sarbanes-Oxley provision because he had destroyed a tangible object, a fish. And the Supreme Court by a 5-4 decision—it was very, very close with a vigorous dissent by Elena Kagan—said no, no, no, the statute does not reach that. So this would not be the first time the government has charged Sarbanes-Oxley in a very aggressive fashion, and they might get spanked for it.

 

Prof. John C. Yoo:  But as you said, John -- and this goes to the larger point. This is yet another example of the Supreme Court being unable to stay out of the 2024 elections. You’ve got the Colorado case. You’ve got now this case, which, yes, it’s not involving Trump, but it directly involves Trump. Half of Trump’s case will rise or fall based on how the Supreme Court decides this issue with Fischer and the other January 6 defendants.

 

And then we talked about in our last episode the accelerated plea for cert by the special counsel Jack Smith at the Supreme Court to hear President Trump’s immunity claim, which has been rejected by the D.C. Circuit and by the trial judge here, Judge Chutkan. There may be --

 

John G. Malcolm:  It hasn’t been rejected by the D.C. Circuit yet. It’s been rejected by the --

 

Prof. John C. Yoo:  Oh, no. You’re right. Sorry.

 

John G. Malcolm:  -- [inaudible 00:31:32] before the D.C. Circuit. And they said they’re going to consider on an expedited basis, so I don’t think the Supreme Court is in fact going to grant Smith’s motion on that, although if the D.C. Circuit upholds that order by Judge Chutkan, it’s going to make its way up to the Supremes.

 

Prof. John C. Yoo:  And then you also still have out there -- yes, the reason I misspoke about the D.C. Circuit is because you do have that D.C. Circuit decision on the Blassingame issue whether President Trump has any kind of official immunity for civil lawsuits, which there is a theme. Basic constitutional runs through the immunity case, the Blassingame case, also this issue we could talk about now, the rejection by the Eleventh Circuit of Mark Meadows’ effort to remove his case. Which is all of these cases in the lower courts have pulled this principle from various Supreme Court precedents which is when the president acts officially as president, carrying out the duties and responsibilities of the presidency there is some kind of immunity that attaches.

 

It certainly applies civilly. It’s absolute immunity in civil cases. Whether it applies to criminal cases or not the Supreme Court has never decided. Although, the implication of these immunity cases as the lower courts have read them is that you certainly don’t have immunity from criminal prosecution. But then if you’re acting as a private citizen and the lower courts have said when you’re acting is a candidate for president, that’s almost by definition a private citizen, then you don’t have any kind of immunities. You can’t claim you’re acting as in the office with the duties and responsibilities, and so you’re subject to criminal prosecution. You’re subject to civil lawsuits.

 

So before we get to the Hunter Biden issue, John, why don’t you briefly address it since this is your home circuit where you mucked about as an assistant U.S. attorney screwing up the case law left and right in the Eleventh Circuit. Why don’t you just briefly address this Eleventh Circuit decision on Mark Meadows trying to remove his case?

 

John G. Malcolm:  Yeah. Well, it could have an impact on the Trump cases. So Mark Meadows was White House Chief of Staff. He was indicted in state court by Fanny Willis, and he filed a motion to remove to federal court. He cited a particular statute. It’s called the federal officer jurisdiction removal statute. It’s 28 U.S.C. 1442(a)1. He said, look, all of the actions that I took here as an official, they were all under color of an official act. They all fit within the scope of my authority and duties as chief of staff.

 

That was rejected unanimously in an opinion written by Chief Judge Bill Pryor. It was joined by Robin Rosenbaum and Nancy Abudu. Nancy Abudu is a relatively new judge on the court. Rosenbaum is an Obama appointee. And Meadows lost on two grounds according to Bill Pryor. One, the statute does not apply to former federal officials; it only applies to current federal officials. And then the second reason he said but even if it applied to current federal officials, a lot of the actions that you took -- contacting the secretary of state in Georgia, Brad Raffensperger, contacting state legislators urging them to hold special sessions -- that was really campaign activity for Donald Trump. Arguably, you were violating the Hatch Act, and it does not fit within the duties of the White House Chief of Staff.

 

There was a concurring opinion by Judge Rosenbaum agreeing with all of that but just urging Congress to amend the statute to cover former federal officials. But she agreed that Meadows’ actions were outside the scope of White House Chief of Staff. And the reason why it has some potential significance is if you really take the attitude that no, when you were talking about campaign activities, particularly after the election, and trying to urge one person being chosen over another, either by Congress or before the electoral college, that was really campaign activity. You don’t get any kind of immunity for that. And of course Donald Trump has said he was participating in all of those activities too, but he was saying I get immunity for it because it fell under my obligations to take care that the laws be faithfully executed. And that includes the election laws.

 

Bill Pryor gave that argument kind of the back of his hand and said no, no, no, that’s what the Justice Department Civil Rights Division, Criminal Division -- that’s what they’re there to do. You are not there to put a thumb on the scale as to who the American people should choose, particularly after the election has already taken place.

 

Prof. John C. Yoo:  We only have five minutes left.

 

John G. Malcolm:  We can cover Hunter Biden.

 

Prof. John C. Yoo:  Yeah, let’s talk about the Hunter Biden issue quickly. And let me take the lead there and then, John, ask for your thoughts. I wrote a little piece about the Hunter Biden issue. And this is just outright defiance of a congressional subpoena.

 

You look at the facts. Here’s Hunter Biden. He’s told to appear on a certain day and time for a closed-door deposition, which is the standard procedure. I used to be a Senate staffer. That is just the standard approach when you’re preparing for public hearings and you conduct the investigation is you have a deposition with lawyers present, and you video it. And you take notes and so on. You have a transcript.

 

Hunter Biden refused. He said I want to have a public hearing. I don’t want any kind of in person testimony first because it’ll all be leaked. You could say that about every time Congress actually does some kind of investigation that this could happen or when prosecutors who do the same thing or civil litigants. This is not the grounds for defying a subpoena.

 

Hunter Biden could’ve said I think this is a violation of my Fifth Amendment rights. But you can comply with a subpoena by physically showing up and then taking your Fifth Amendment -- invoking your Fifth Amendment rights. You refuse to do that. Instead, he showed up in front of the Capitol so that he could attack the investigation. And as I think Congressman Comer said, who’s leading the oversight committee here -- he said that’s a giant finger in the eye of the House to actually show up physically, just a few hundred yards away from where you’re supposed to go and say you’re not going to show up.

 

So I think actually Hunter yet again is getting his father in more and more trouble because, A, this is guaranteed now to force the investigation into Hunter to keep going deeper into 2024 where it can’t help but have some kind of effect on the elections. So that’s one. Two, he, I think, helped trigger the House voting to authorize the impeachment investigation, which there were some arguments that that might not happen because the Republicans have such a razor thin majority in the House. Hunter did this, and then just a few hours later the House said okay, we’re going to authorize the impeachment investigation.

 

Third, the House is now going to have to vote a contempt of Congress motion out, which I expect it will. In fact, I saw a story today saying that House staff say they have the votes now for this. This puts Joe Biden in a terrible spot because it’s his Justice Department that has to carry out the contempt of Congress prosecution. The U.S. Attorney in D.C. traditionally carries this out. Is Joe Biden going to allow his Justice Department to prosecute his son for refusing to comply with a valid subpoena from the House? What would be the constitutional basis that Hunter Biden would raise as a private citizen?

 

The only times that the Justice Department has refused to prosecute have been cases where it’s actually been an Executive Branch official who’s being prosecuted for contempt. And that official has usually claimed executive privilege. So they were defending the constitutional prerogatives of the Executive Branch, so the Executive Branch said, well, under the separation of powers we’re not going to prosecute our own personnel for defending the constitutional rights of our branch.

 

So what’s Joe Biden going to do? What’s his Justice Department going to do? And then the last little bit was it came out, and I think the White House press officer confirmed this. Hunter called Joe Biden before he did this and talked to him about it. Did Joe Biden tell his son to defy a legitimate subpoena from the House? This is going to make things worse. This is creating more grounds for the investigation into Joe Biden’s impeachment, so I think -- go ahead, John.

 

John G. Malcolm:  So I’m not sure I agree with what you just said, only in this regard. I don’t think there’s anything that Hunter Biden can do at this point that is not going to damage his father politically. So yes, he’s going to be held in contempt of Congress. I doubt the Justice Department will proceed against him. But even if they do, he already has two pending charges against him, and there may be others, FARA charges, etc.

 

I’m not sure that this is going to make life much worse from a legal standpoint for Hunter Biden. And think about what his options were. He could either, one, defy the subpoena and then hold a press conference saying that these are all evil mad dog Republicans trying to bring down his father. Two, he could show up -- and by the way, he’d already been promised that there would eventually be a public hearing, so he was going to get what he wanted after he testified behind closed doors. So two, he could show up and have it videotaped taking the Fifth, and he would be taking the Fifth in response to all kinds of questions about what his father did and what involvement his father had. Or three, he could go in there, potentially perjure himself or say incriminatory things for the cases that are pending against him and provide self-serving statements attempting to either exonerate himself or his father, which could subject him to a potential perjury charge and if the stories collapsed or were not credible would really be damaging to his father and put that impeachment inquiry on a fast track.

 

So I think that Hunter Biden, no matter what he was going to do, was going to hurt his father politically, and given those three options—defy the subpoena, show up and take the Fifth, or tell a self-serving, noncredible story—he might’ve taken the option that is the least damaging to his father. And I’ll bet you that whether Joe Biden did it directly or the White House weighed in and let Hunter know exactly what they wanted him to do.

 

Prof. John C. Yoo:  Actually, the quickest thing he could do to get this all over with would be to fully provide all documents and testify immediately. That would actually -- if he really believes everything he’s saying—he didn’t do anything wrong. This is all a witch hunt—then actually the fastest way to deal with this and get it done is to testify and comply immediately. He should go in for the closed-door testimony, answer all the questions, don’t take the Fifth, and demand that -- record the thing yourself and release your own transcript.

 

John G. Malcolm:  There’s no way on god’s green earth --

 

Prof. John C. Yoo:  Yeah. That’s going to happen, right, right. Produce all the financial records. Open the books. Let everybody have at it. That is the usual crisis response that many people in Washington would give you is don’t go through this fighting the drip, drip, drip of information. Release everything yourself immediately. But this is not the Biden team’s defense.

 

Okay. Well, we have 15 minutes left for questions. So Jack, are you there? Why don’t you handle the question-and-answer process, and we’ll try to get through as many as we can.

 

Jack Capizzi:  Certainly. Well, thank you both for that discussion. It looks like we’ve got our first question ready. So our first attendee asks the Colorado opinion imposes a stay on its removal of Trump from the ballot until the SCOTUS decides cert. That in all likelihood would postpone taking effect until well after the Colorado primary ballots have to be printed anyway. So then the Supreme Court could dismiss cert as moot and all that happened was virtue signaling by the Colorado court on a 4-3 vote. Do either of you have any comments on this?

 

John G. Malcolm: Well, they certainly did grant a stay, and they said that if Trump files and appeal—and Trump has said he’s going to file an appeal I have no doubt. He may already have done it by now—that they would then await -- the stay would remain in place. And they would await further word from the Court, either by granting cert or denying cert or whatever. I think that is too cute by half. I don’t think the Supreme Court is going to play that game in addition to the fact that as I said I think Colorado Supreme Court having now unleashed these floodgates I do not think that they are going to be the only state that is going to go down this road.

 

Most of these other 13 pending lawsuits are in very, very blue states. It would not surprise me if the Secretary of State Sherly Weber in California acts on this urging from the lieutenant governor and disqualifies Trump from the ballot in California. So if you could find a clever way to sort of cabin it that way, somebody might be tempted, but I just don’t see it.

 

Prof. John C. Yoo:  I agree. In fact, I think -- and I don’t want to imply that the Colorado Supreme Court was being political in any kind of partisan sense. The fact is I think as John pointed it out all the justices here were appointed by Democratic governors, and you still had a 4-3 split. But I think that the stay shows even the Colorado Supreme Court expects the U.S. Supreme Court to intervene and possibly overrule it.

 

But the Colorado Supreme Court, although sometimes the opinion would get into a little bit of histrionics, it did acknowledge that this was a first of its kind case and these sort of waters they have not been sailed before. And so I think it was quite sensible of the court to stay its opinion and allow -- so the ballots will go forward and get printed. It still gives the Supreme Court time to make its decision without worrying that Colorado’s immediately banning Trump.

 

John G. Malcolm:  Unlike, by the way, the judge in the case involving Rudy Giuliani and $148 million judgment against him. He’s already appealed, but the judge has already issued an order that he needs to start paying the victims immediately.

 

Prof. John C. Yoo:  I saw that, and in fact -- I don’t know if you saw this, John -- right before the podcast started, I think Guiliani just declared bankruptcy.

 

John G. Malcolm:  Well, $148 million that’ll take a pinch out of your pocket for sure.

 

Prof. John C. Yoo:  I thought he had it. He could just put it on his Discover card and get 2% cash back. His Federalist Society branded credit card no doubt would help him carry the interest on the charges he’s going to have to carry.

 

Jack Capizzi:  That’s right. Well, thank you both for your answers to that one. It looks like we have another question here. This attendee asks do we have a chance to see the established precedence on the self-pardoning power of the U.S. president under the U.S. Constitution in 2025?

 

John G. Malcolm:  Sure.

 

Prof. John C. Yoo:  Let me address that one quickly. There’s two interesting issues here. So one, I actually wrote -- in this book I wrote in 2020 about Trump and the Constitution, I did look into this question of self-pardoning because Trump raised it himself during his presidency. So that’s one interesting question. And then the timing issue is interesting.

 

So of course I think Jack Smith, the reason he’s seeking an acceleration of the consideration of immunity is that he’s terribly worried, I assume, that President Trump might when. And then if President Trump were to win the election before his prosecution can be concluded, then Trump could just order the prosecution dropped because he would be the president, and he would be head of the Article II branch. And he is the ultimate supervisor of the Justice Department.

 

The interesting thing is I don’t think there’s any way to prevent that from happening now because even if there were a verdict against Trump in whatever accelerated trial that Judge Chutkan is going to hold, Trump has a right to appeal. And should President Trump win, he could certainly in the appellate process order the Justice Department to drop its appeal, drop its defense and drop the whole prosecution because there would be no final judgment in the case. But suppose instead that all that were exhausted, then President Trump -- that raises the question could President Trump pardon himself of those crimes.

 

As unbelievable as this sounds, my view was that the pardon clause is so broad it doesn’t exclude the president from pardoning himself. It only prevents pardons for impeachment, and it prohibits pardons for state crimes. It doesn’t say the president can’t pardon himself or his family members.

 

One more just last point before turning over to John is but this does not address President Trump’s prosecution in New York City by the Manhattan DA for financial and accounting irregularities connected with hush money payments, nor does it address the Georgia prosecution which is being brought by the DA there where Fanny Willis has charged President Trump and the Trump reelection campaign as being basically a racketeering enterprise.

 

John G. Malcolm: So I agree with that. I see a sequel for your 2020 book in your future, John. And the only thing I would say is Mark Levin has made an argument that he thinks that Trump could pardon himself for the state offenses. I don’t see it. John doesn’t either. Although, I certainly don’t think the Fanny Willis case is going to happen before the election or inauguration if Trump were to win.

 

I don’t know what’s going to happen with the Bragg case, but I certainly do not believe even if they did try him and convict him that serving a prison sentence would certainly be incompatible with his abilities to perform his duties as President of the United States. So I certainly don’t think he would be sitting in a prison cell, and the Secret Service would never allow him to do that. And if those trials have not taken place by the date of inauguration, assuming that Trump wins, I think that the cases would have to be held in abeyance until after he finishes his four years in office because there’s no way that the sitting president could be sitting in the dock while a criminal case is going on and at the same time perform the duties that he needs to do as president.

 

Jack Capizzi:  Well, thank you both for your answers there. Going on to our next question, this attendee asks wouldn’t every government official lose their immunity once they are out of office as a governor or a congressperson? With what limitations, fraudulent witnesses, ways that state governments bypass the supremacy of the Constitution -- would all we have left be endless government litigation before a collapse?

 

John G. Malcolm:  Well, the Meadows case was not about whether or not he has immunity. It was whether or not the case could be removed. And Bill Pryor makes a big point of saying, hey, state officials, they can make determinations on immunity arguments just like we can. It’s just a question of whether you think that’s a fair forum in which to do that.

 

And Judge Rosenbaum in her concurring opinion urging Congress to amend the statute to cover former officials says, look, this is going to have a real chilling effect because people will eventually leave. And any action that they’re going to take while in they’re in the Executive Branch is going to be unpopular in some state, and so this is going to be a real problem. And she adds that it could have an effect on ongoing administration priorities.

 

So if President Trump had a particular policy that was being implemented and now these officials are all out of office because President Biden’s in place, the Trump officials are all being prosecuted, but if the Biden administration is continuing that same course of conduct, then those officials are going to be sitting there going, wow, look what happened to those guys who implemented the very policy that we’re continuing. We’re going to be out of office one of these days. We better stop implementing that policy or we’re going to get indicted too. So the immunity arguments that Meadows has, they’re still there for consideration by the state court, but he clearly lost his effort to remove to federal court.

 

Prof. John C. Yoo:  I agree with that. This whole larger issue of immunities is interesting. And we’re trying to make inferences based on what the Supreme Court has said in a very few number of cases. And a lot of it has to do actually with just reading a lot into the civil immunity that the president receives.

 

All of this is because of Nixon. Nixon is the one who gave birth to a lot of these cases. And you know my rule. Any case that has the name Nixon in it, Nixon loses, and that’s why in the immunity cases it’s Harlow v. Fitzgerald, not Nixon versus. But it is a Nixon administration issue.

 

But I think John’s right. When you look at how you want to design the system, you have to think about what are the incentives you’re creating for future presidents and future officials. And John and I were both subordinate officials in the Executive Branch at the Justice Department. And so what the Supreme Court has said is we don’t want presidents when they have to make the most difficult decisions having to worry about their legal liability.

 

Now, the Court made that observation when it came to a civil proceeding. Now, the interesting thing -- and again, the Court has not decided or ever said that the president has immunity from criminal prosecution. You could always say that we shouldn’t worry so much about criminal prosecution at the federal level because you would expect the current president to worry a lot about the incentives on the presidency when he or she chooses to bring charges against former Executive Branch officials because those incentives are actually strongest on them now.

 

If I were to infer and make a guess about what the Court will do with the Jack Smith immunity case once it actually gets to the Court is I expect the Court will probably hold to that line and say presidents have no immunity from federal criminal prosecution because the current president is now charging the Executive Branch, and he or she can worry about the incentives but also maintain the idea that presidents have immunity from civil prosecution -- I’m sorry, civil cases. So in a way I’m saying I think the lower courts have gotten it pretty much right -- and that presidents and Executive Branch officials have no immunity at all for their actions as private citizens while they’re in office. So it’s basically a fact question up for trial what is on one side of that line or the other, but that line exists.

 

Now, I -- what John said, and I think this is something the Court has really not given us much guidance on, is what happens if states are essentially harassing federal officials by using state law? So the pardon power, I agree, doesn’t allow you to pardon state causes of action, but what if what the state is really doing is just harassing federal officials for carrying out federal functions. So I would say this is a supremacy clause issue, and this is actually what happened in McCulloch v. Maryland. Maryland imposed a special tax on the Bank of the United States because it wanted to put the Bank of the United States out of business.

 

That I don’t think the Supreme Court’s really discussed because what Fanny Willis is doing is unprecedented. I could see this Court actually standing up for the rights of federal officials in blocking on supremacy clause grounds these kinds of lawsuits if they really are designed to punish or retaliate or just take a political stand against federal officials. But it’s going to be hard for the Court to draw that line. When do we know that a state is really doing that versus just applying general law to federal officials in their private capacities. Sorry for the long answer but I think that’s really something that the Supreme Court really has to address now because of these cases. And it really hasn’t for a long time, maybe since the Civil War.

 

Jack Capizzi:  Thank you very much. It looks like we’ve got time for one more question. Let’s see. So this is a more recent development, but Steven Calabresi and others have field an amicus brief in the Supreme Court arguing that Jack Smith is not properly appointed by the president nor confirmed by the Senate and therefore cannot exercise the authority of a special counsel. Do either of you have thoughts on that?

 

John G. Malcolm:  So we were just discussing this immediately before coming on the air, so I’ll let -- this is an argument that’s been made by a Federalist Society member, a guy named Paul Kamenar in other cases involving Robert Mueller. I have not read this brief which just got filed, but John has. So I’ll let him answer that.

 

Prof. John C. Yoo:  Yeah. I looked at this issue. I tend to agree with them on the merits that the Justice Department is not following its own rules and regulations in the way it’s done this but also that a special counsel doesn’t really exist under the constitutional scheme. Now, the thing that’s interesting about the amicus brief is that I believe the D.C. Circuit -- I’d have to go back and look, but I thought the D.C. Circuit rejected this argument when it was brought against Robert Mueller --

 

John G. Malcolm:  It did.

 

Prof. John C. Yoo:  -- being appointed special counsel. But I don’t think the Supreme Court granted cert. Now, I think the clever thing in this amicus brief is that we’re going to have to see -- the Court’s going to have to decide one way or the other on this because I think the clever thing what this amicus brief does is it says Jack Smith is not the legitimate representative of the United States government, and so he can’t bring this case to the Supreme Court.

 

And so it’s interesting. If the Supreme Court grants cert, then it has to, I think, have rejected this argument. Now, if the Court denies cert but they don’t say anything, then it’s not clear whether they agree. You could say oh, they agreed with the argument or not. But you could have people raise this argument too by refusing to comply with any kind of subpoena or other action by Jack Smith because this is not ultimately about whether Jack Smith can represent the United States government in the Supreme Court rather than the Solicitor General.

 

But it’s also about whether Jack Smith is just a legitimate prosecutor for the United States and can carry out the investigation at all. And so this is just the first bite of the apple, but I would expect that Trump or any of the other defendants in the Jack Smith investigation can raise this issue. And I’m sure we’re going to see it come back again.

 

John G. Malcolm:  Well, it was in fact in that context in which Paul Kamenar raised this issue in the Mueller investigation.

 

Prof. John C. Yoo:  Yes.

 

John G. Malcolm:  He was trying to refuse to comply with subpoenas either for documents or for personal testimony, I forget which. But of course if the Court did reach this issue and did determine that this violated the appointments clause and that Jack Smith is somehow not, then the indictments that Jack Smith brought somebody at the Justice Department -- they’d either have to start over, or somebody at the Justice Department would have to take over those prosecutions. And the Biden Justice Department would no longer be able to say it’s not really us; it’s him. They would lose that. Whatever separation one gets from having a separate counsel they would lose that.

 

Prof. John C. Yoo:  Yes, I agree.

 

Jack Capizzi:  Well, that seems like a good place to wrap up. On behalf of The Federalist Society, I want to thank everyone on the call for joining us today and especially to John Malcolm and John Yoo for this final update of 2023 and all the previous updates that we’ve had. I’m sure that there’ll be plenty more to come in 2024, so we encourage you to keep an eye on our website and your emails for further announcements about those. As always, we do welcome listener feedback at info@fed-soc.org. And with that, thanks again for joining us. I hope you have a great holiday season, Merry Christmas, and a Happy New Year. We are adjourned.