Transcript: Swamp Notes — The Supreme Court weighs presidential power

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This is an audio transcript of the FT News Briefing podcast episode: 'Swamp Notes — The Supreme Court weighs presidential power'

Sonja Hutson

The US Supreme Court heard a pretty big case this week . . . 

News clip

We will hear arguments this morning in Case 23-939, Trump vs United States.

Sonja Hutson

 . . . and its ruling could go a long way to determining the fate of the former president and the power of future presidents.

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This is Swamp Notes, the weekly podcast from the FT News Briefing, where we talk about all of the things happening in the 2024 US presidential election. I'm Sonja Hutson, and this week we're asking: Is the president immune from criminal prosecution? Here with me to discuss is James Politi, the FT's Washington bureau chief. Hey, James.

James Politi

Hey, nice to be here.

Sonja Hutson

And we've also got Stefania Palma, the FT's US legal and enforcement correspondent. Hi, Stefania.

Stefania Palma

Hi, Sonja.

Sonja Hutson

So, Stefania, I want to start off by asking you what is this case all about and what are the arguments that Donald Trump's lawyers are making.

Stefania Palma

So the Supreme Court arguments stem from a federal indictment that essentially accuses Trump of seeking to overturn the 2020 presidential elections. He was accused of a conspiracy to defraud the US, to obstruct an official proceeding, etc. Now in trying to defend himself from that case, his lawyers have been arguing that actually he should be absolutely immune from criminal prosecution. Their theory goes that when it comes to actions taken in an official capacity, a former president cannot be indicted unless he or she has already been convicted via the impeachment process for similar crimes. One of the theories behind granting presidential immunity is that basically, if a president is . . . feels threatened by the idea of being potentially criminally prosecuted in the future for actions that they're taking while in office, which obviously is an extremely difficult job, very high stakes decisions are being made, then they will not be able to actually carry out their responsibilities.

Sonja Hutson

James, did it sound like the Supreme Court justices were sympathetic to those arguments? I mean, what were some of the big moments that stood out to you from the hearing?

James Politi

Well, I mean, some of the justices were sympathetic. Some of the conservative justices in particular, I think Alito in particular said at one point, you know, if a president is not allowed to go into peaceful retirement and fears criminal prosecution from a political rival . . . 

Voice clip of Samuel Alito

Will that not lead us into a cycle that destabilises the functioning of . . . 

James Politi

. . . then it could kind of cast a pall over American democracy for years to come.

Voice clip of Samuel Alito

. . . and we can look around the world and find countries where we have seen this process, where the loser gets thrown in jail.

James Politi

Some of the justices are looking now for a middle ground. They didn't talk a lot about deterring behaviour such as Trump's after the 2020 election. They talked much more about what this would mean, sort of for the ages and for future presidents in terms of their ability to do their jobs. And they seem tempted to throw it back down to the lower courts by instructing the courts to kind of decide, well, you know, which acts are private acts, which acts are official acts and therefore should be considered immune. So any delay, if they throw it back to the lower courts would benefit Trump because it might mean that any trial which was supposed to actually start in early March could now be pushed until after the November election.

Stefania Palma

And it was also interesting to see the sort of the liberal wing trying to actually address the broader question in relation to Trump's acts within this case. I think one justice that really tried to cut through all the noise and address exactly that was Ketanji Brown Jackson, because at some point she just said, everybody pause, because they had gotten really sort of stuck into exactly what are the boundaries of an official act versus a private act. And she said, wait, wait, wait. If we do allow that kind of immunity, then you really have . . . there is no incentive for a president, an incoming president, to actually consider that there could be consequences for potential crimes. And she added this great quote saying that this potentially could lead to the Oval Office becoming sort of the seat of criminal activity in the US.

Sonja Hutson

Wow. So I do want to talk about those future implications in a minute, but right now I just want to focus on the immediate impact of this. James, how do you see Thursday's oral arguments impacting Trump's campaign for president?

James Politi

Well, at the moment, if the trial is delayed and delayed past the election, then that would be a big benefit to Trump. At the moment, what we're seeing is that he's already in court in New York, facing charges that he falsified business documents to cover up "hush money" payments. And so he's been having to spend four days a week in court, and it's sort of curtailed his ability to campaign. If there are more cases that go to trial before the election, he'll suffer more. And so, he would be very, very happy if this thing is delayed. Especially because the charges in the federal case, especially the January 6 overturning election case, are very serious and they're potentially even more serious than the ones in New York and could really kind of cast a cloud over his effort to win back the White House.

Stefania Palma

I think often times people who analyse these cases against Trump, they say they're kind of two tracks to a potential Trump win. One is more classically on the merits of these cases. The other is on timing. And the key strategy from the Trump team has been to delay, delay, delay as much as possible. They've been arguing in court to push these proceedings until after the elections, arguing that this is a big political witch-hunt against him. So any delay is already a big win for him. The question of timing also raises the question, you know, if some of the more serious trials do not come to an end before November and let's say Trump wins, there are myriad questions around what can he do to try and essentially keep stalling these proceedings, but potentially even throw them out. At that point, he obviously would have the power to appoint an attorney-general at the Department of Justice. In theory, obviously, that department is independent of the White House. But you could . . . there is a world where Department of Justice under another Trump presidency could dismantle these cases.

Sonja Hutson

So we were talking earlier about how the justices spent a lot of time talking about the big picture, future implications of this case. How do you guys see that if the Supreme Court did rule in Trump's favour? What would that mean for the country going forward?

James Politi

I think it's, you know, it paves the way for an autocratic American president in the future. Maybe Trump and maybe somebody else. But clearly, if there is a judicial precedent that says presidents can be fully immune for whatever they do, then it really kind of means that some of the key checks and balances in the US system have been kind of suddenly actually removed. In the shorter term, if we're talking about a mixed opinion, which just results in a delay, I think that that will certainly undermine the credibility of the Supreme Court because they will have seemed to . . . they will seem to have sided with Trump just by other means.

Stefania Palma

This is arguably a . . . having to decide cases of such a political fraught nature is essentially the court's worst nightmare. I would argue this is potentially one of the most important cases the court has ever heard, specifically in relation to the functioning of the US government. It raises questions around, obviously, presidents' accountability. It raises questions around the separation of powers. But many experts have also raised questions around national security. It's sort of one of now-infamous questions that was raised by one of the lower court judges hearing the immunity case was, you know, if you're seeking absolute immunity, she was asking the Trump lawyer . . . 

Voice clip of Judge Florence Pan

Could a president who ordered Seal Team 6 to assassinate a political rival [and] who was not impeached, he'd be subject to criminal prosecution?

Voice clip of Trump's attorney John Sauer

If he were impeached and convicted first.

Voice clip of Judge Florence Pan

So your answer is No? 

Voice clip of Trump's attorney John Sauer

My answer is qualified "Yes".

Stefania Palma

And he basically seemed to say, well, yes, unless they have already been convicted via impeachment. It raises a whole set of sort of fundamental questions around sort of the underpinnings of how this democracy works.

Sonja Hutson

Yeah. And I think, I mean, as we've seen with the last two impeachment trials, like, impeachment is a very inherently political process, not a criminal justice-driven process.

Stefania Palma

Yes. And that's the point that the sort of Trump critics make is sort of you can't for something as serious as potentially, you know, egregious crimes. Should we really rely on an inherently political process that is, by definition, not objective?

Sonja Hutson

All right. We're gonna take a quick break. And when we come back, we'll do Exit Poll.

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Sonja Hutson

And we are back with Exit Poll, where we talk about something that did not happen on the presidential campaign trail and apply rigorous political analysis to it. So, former representative George Santos — I think there's no introduction needed for him — he suspended his long-shot re-election campaign this week after raising precisely $0. Who is the big winner here? Is it Trump? Is it Biden? Or is it the American people?

James Politi

I would narrow it down to the, like, poor people of Long Island who have had to endure, like, the craziest, I think like two years of their political lives. I think, they're the real winners here.

Stefania Palma

A potential big loser, I think, is anyone who is a big fan of, like, mixed metaphors and big typos in social media posts. (Laughter) Although I think Trump can, like, fill that gap. I think it could be good for Trump in the sense that — trying to be more serious about this — it kind of his move kind of nips at the buds. A story that could have potentially gotten a lot of attention just by virtue of how completely bizarre it's all been. And Trump right now, part of a strategy to counter all of these indictments has been to dominate sort of the airwaves as much as possible, to speak to his base, to give this message of victimhood. And honestly, it's kind of worked. I mean, there has there have been spikes in fundraising every time he's been indicted or when the state of Georgia released his mugshot. So as far as he's concerned, like the more spotlight he has, the better.

Sonja Hutson

He doesn't have to compete with George Santos anymore. All right. I want to thank our guest, James Politi, the FT's Washington bureau chief. Thanks, James.

James Politi

Thanks, Sonja.

Sonja Hutson

And Stefania Palma, she is our US legal and enforcement correspondent. Thanks, Stefania.

Stefania Palma

Thank you.

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Sonja Hutson

This was Swamp Notes, the US politics show from the FT News Briefing. If you want to sign up for the Swamp Notes newsletter, we've got a link to that in our show notes. The show is mixed and produced by Ethan Plotkin. It's also produced by Lauren Fedor. Special thanks to Pierre Nicholson. I'm your host, Sonja Hutson. Our executive producer is Topher Forhecz, and Cheryl Brumley is the FT's global head of audio. Check back next week for more US political analysis from the Financial Times.