Brooks and Capehart on Supreme Court arguments over immunity for Trump

Amna Nawaz:

Legal cases involving former President Trump and some of his closest associates play out in state courts, the Supreme Court and the court of public opinion. Meanwhile, as foreign aid begins to arrive in Ukraine and the Middle East, protests boil over on campuses across the U.S.

For more on a consequential week overseas and here at home, we turn to the analysis of Brooks and Capehart. That is New York Times columnist David Brooks and Jonathan Capehart, associate editor for The Washington Post.

Great to see you both.

Jonathan Capehart:

Hey, Amna.

Amna Nawaz:

So, a big week when it comes to the legal battles surrounding former President Trump.

Let's start at the Supreme Court.

David, justices there heard arguments about Trump's potential immunity, which his lawyers argue should be absolute. What did you take away from the arguments and the way the justices seem to be approaching this?

David Brooks:

Well, a lot of commentary on the fact that a lot of the more conservative justices didn't seem interested in Donald Trump, the case right in front of them. They were interested in the precedent.

And I do find it intellectually interesting, but it was a little weird that Trump was barely mentioned in some cases. And so, normally, you would say, yes, a president's not above the law, of course. it's simple. President's not above law. No one's above law.

But if you look at democracies in decline, then it is a pattern that people in office use their power to indict and criminalize and throw in jail that people who were in office before them of the opposing party.

And so we are a nation, democracy in decline. And so it does make you think, well, if the Republicans would try to indict Ali Mayorkas and impeach him, well, then maybe once they come in office, they will criminalize some of this action. And maybe there should be some protections against that.

I don't know where you would draw the line between those presidential actions which are immune to indictments and convictions and those where you're not. But in a democracy and decline, you really have to think, how do we build in more guardrails so we don't start criminalizing political disagreement?

Amna Nawaz:

How do you look at it, Jonathan?

Jonathan Capehart:

I mean, the first thing we can do as an American electorate is electorate is no longer elect someone who would crash through the guardrails and electing other people who would enable that person to crash through the guardrails.

I mean, I agree with David. The idea that the Supreme Court could possibly hand down a ruling that would force Judge Chutkan to go through the counts and figure out what are private acts and what are official acts in order to determine whether the former president is immune is insane.

I mean, this country is almost 250 years old, if my math is right. Only until the election of Donald Trump have we ever had to even contemplate this question. And so until we stop electing chief executives who lack the shame gene, yes, maybe we will have to answer this question.

But the fact that we are here is — it's really disturbing. And listening to the questioning back and forth really made me wonder whether the Supreme Court — do they really want to squander their public standing, such as it is, by handing down a decision that everyone will look at and go, what are you doing?

Amna Nawaz:

Can I hear from both of you briefly on this? Do you think we will get a clear answer from them on this, Jonathan?

Jonathan Capehart:

I don't think so.

David Brooks:

I don't think so either, no.

Amna Nawaz:

OK. We're moving on then.

(Laughter)

Amna Nawaz:

We will come back to that.

There were a few other cases I want to get your takes on as well, because they're very different. They, of course, both involve former President Trump. In New York, there is the hush money trial that's continuing that's related to a payment he made to adult actress back in 2016.

We heard testimony from a tabloid publisher named David Pecker this week confirming that he did bury stories that could have harmed then-candidate Trump. Meanwhile, in Arizona, two of Trump's closest advisers, his former Chief of Staff Mark Meadows and former attorney Rudy Giuliani, were among 18 people indicted in the fake electors scheme there to help overturn Trump's 2020 election loss to Joe Biden.

David, did either of those developments in these cases, do you think, change the landscape for Trump?

David Brooks:

I don't think they change the landscape for him.

I was morbidly fascinated by the tabloid editor — publisher's testimony.

David Brooks:

Because that is not the way we do journalism.

David Brooks:

Like, paying people hush money, burying stories, it's just like a moral netherworld that Trump had entered.

Somehow, when — I was reminded, I was once in the '80s invited to a party opening Trump Plaza. And Trump is there with all his cronies. And I look around the room, it's all the people you think are kind of corrupt. And a buddy of mine sees me across the room and comes up to me and says, "Not indicted, not invited."

(Laughter)

David Brooks:

I remember thinking, like, we're really entering a different layer of New York than I was used to.

David Brooks:

And that's what we're confronting. And we have been confronting it for a bunch of years. But…

Amna Nawaz:

Jonathan, how do you look at these cases?

Jonathan Capehart:

The testimony of David Pecker was fascinating.

I mean, I lived and worked in New York for 16 years.

Jonathan Capehart:

I worked at The New York Daily News. So The New York Post was a competitor.

And so we…

Amna Nawaz:

You knew this world.

Jonathan Capehart:

So I know this world. So David Pecker is not foreign to me. What he's talking about is not foreign to me.

But I think for the larger public to hear what really goes on, particularly with that kind of tabloid newspaper, I think is fascinating. And, also, let's not forget, we're talking about a former president who is in court over particular hush money payments, who has been found liable for fraud and for sexual assault, who couldn't be in Washington for the immunity hearing from when he was president.

This guy is going to spend more — has been spending more time in court than on the campaign trail to run for reelection. I think what makes this week and this case so fascinating is that we're watching this guy be held accountable for at least a sliver of what he has possibly, allegedly, done.

Amna Nawaz:

And, meanwhile, in the New York case, we should mention he's now violated the gag order a total of 15 times.

Jonathan Capehart:

And counting, we should say, and counting.

Amna Nawaz:

I mean, is there any way for former President Trump to be reined in on that front?

David Brooks:

I think his entire administration tried to do that for four years, and it didn't seem to work. I don't think there's a way to rein him in.

Jonathan Capehart:

It's not — no.

(Laughter)

Amna Nawaz:

I need to ask you about President Biden as well, because we should mention, as you know, oftentimes, when authorities don't want you to talk too much about something, it will get announced on a Friday afternoon.

We did have an announcement today from the Biden administration. They are delaying their decision — or their plans, rather, to ban menthol cigarettes. We know that's known for its appeal to Black smokers in particular. Some 81 percent of Black adult smokers smoke menthol cigarettes.

David, this has been an effort the FDA has been pushing for 10 years now. It's been through three administrations. They have failed to get it across the finish line. But why do you think the Biden administration decided to do this now?

David Brooks:

Well, I haven't spoken about it, but I hope it was out of a sense of some sense that adults can make up their own mind.

I, frankly, had the reaction the way when Bloomberg, Mike Bloomberg in New York tried to ban the Big Gulp sodas. It's like too much nanny state. Now, I have seen the studies on the menthol cigarettes. They're — the FDA does say a lot fewer people will smoke if we ban them.

But at some point, we're a democracy where people, adults get to be treated like adults. And everyone knows this stuff is really bad for you. And people make their own decisions.

Amna Nawaz:

Jonathan, as you know, he's faced accusations, of course, that this is about politics, that this could alienate Black voters that President Biden needs. What do you make of that?

Jonathan Capehart:

Well, I'm going to jump off of what David was talking about.

But cigarettes are addictive. And menthol is particularly addictive. And when you're talking about an addictive substance in an addictive product that has a disproportionate impact on African Americans, well, sorry, as an African American, I look at the FDA and say, you know what, good for you. You should be doing this.

Folks should be forced to quit, meaning, this is not good for you. This is about attempting to save your life. And I think — I maybe agree with you on Mike Bloomberg and the Big Gulp sodas. But the first thing Mike Bloomberg did when he was mayor of New York City that people started screaming about the nanny state was banning cigarettes in bars. And now — in restaurants.

And now everyone loves him for it. And so I think, sure, if the Biden administration is trying to play politics by dumping this announcement on a Friday afternoon, fine. Elections are decided on the margins. But in the end, what the FDA is proposing needs to be done. It's about saving lives.

Amna Nawaz:

Meanwhile, as you saw earlier in the show, we continue to report on the spread of these campus protests, pro-Palestinian protests, by and large, and protesting Israel's war conduct in Gaza.

David, they have spread very quickly. They are sustaining on campuses. How do you look at these? I mean, should these be a sort of warning signs to the Biden administration? What do you make of how quickly and widely they spread?

David Brooks:

Yes, I have been frustrated that people aren't making some distinctions here.

So I think most of the protesters are appalled by the horrors the Palestinians are suffering and they're well-motivated by compassion. There are some people who are probably hard left people, and they get to have their views.

There are a lot of people who are antisemitic and violent. And so you should not be able to say, as one of the Columbia students said, Zionists don't deserve to live. If that happens, you should be expelled. And so, in my view, they should let them protest. But if somebody says something, "Go back to Poland," or even a pro-Palestinian or pro-Israeli, "Go back to Gaza," that's ruining the community of the campus.

And so those people should be expelled. So that's the distinction that should be made. And, somehow, the people who are really threatening the community by threatening violence, they're not being expelled. And I think that would have the deterrent effect that would separate really the bad actors from the people who are just well-motivated to do — to try to save lives.

As for the Biden administration, I do worry that the Chicago convention is going to look a lot like 1968.

David Brooks:

And that will just be terrible for the Biden administration. The president will look hapless and powerless.

One other final thing that I just found interesting, Harvard does this survey. What are young adults interested in, what issues? Israel, Gaza is 15 out of 60. And so a lot of people I know are passionately in on both sides of this issue.

David Brooks:

But most young voters are interested in inflation, crime, health care, the normal issues. And so it's important for us, those — especially those of us who are in educated circles, not to generalize from our own immediate experience, because a lot of people are thinking about very different things than this.

Jonathan Capehart:

I would say I agree with you, David.

I think the discussion about what's happening on these in these protests is missing a lot of nuance. Not everyone who's protesting is antisemitic, is rooting for violence or is he even causing the violence? They are there for legitimate reasons.

And I agree with David. If a person of the college community is disrupting and saying racist, antisemitic things, then, yes, they should be expelled. But we also should be mindful that, who are these people who are saying these things? Some might be members of the university or college community, but some could be from the outside.

And my big fear from the BLM movement is, folks from the outside causing violence and then the blame being foisted upon the people who are legitimately protesting. And that is my big concern when we talk about this latest national protest.

Amna Nawaz:

Well, here's to nuance. Here's to facts. Thank you to both of you for bringing those to the table always.

Jonathan Capehart, David Brooks, always good to see you.

Jonathan Capehart:

Thanks, Amna.