Bloomberg LawMichael Gerhardt, a Professor at the University of North Carolina Law School, and author of the new book, “The Law of Presidential Impeachment,” discusses arguments before the DC Circuit Court of Appeals over Donald Trump’s claim of presidential immunity against prosecution. Hina Shamsi, Director of the ACLU’s National Security Project, discusses Supreme Court oral arguments over the no fly list. June Grasso hosts
This is Bloomberg Law with June Brusso from Bloomberg Radio.
Could a president order Seal Team six to assassinate a political rival? That's an official act? In order to Seal Team six.
He would have to be and would speedily be, you know, uh uh impeached and convicted before the criminal.
But if you weren't, there would be no criminal prosecution, no criminal liability for that.
What the founders were concerned about was not I asked you a.
Yes, yes or no question. Could a president who ordered Seal Team six to assassinate a political rival who was not impeached, would he be subject to criminal prosecution.
If he were impeached and convicted first? So your answer is is that My answer is qualified. Yes, there's a political process that have to occur on it.
And that question, pressed repeatedly by Judge Florence Pan, was just one of the tough questions that Donald Trump lawyer faced at the DC Appellate Court today. All three judges on the panel seem skeptical of Trump's claim that he's immune from criminal prosecution for trying to overturn the twenty twenty election because he was president at the time.
Thank's the notion that criminal community for a president doesn't exist as a shocking holding. It would authorize, for example, the indictment of President Biden in the Western District of Texas after he leaves office for mismanaging the border allegedly.
Trump's attorney John Sower argued that a president can only be criminally prosecuted after Congress has voted to both impeach and convict him on similar charges. Judge Michelle Chiles didn't find that argument particularly convincing.
But not everybody goes through that process, and of course it's limited to the certain actors in that regard, but not everybody has to go through that process. Prosecutors later on can come into information and evidence after they've investigated, to make their determinations about what they'd like to criminally prosecute. So you're not always fine to whatever would be in the impeachment judgment clause.
Whatever the practice has been with respect to support and officers, the form the founding generation as clear as you cannot do that respect to the beast.
My guest is Michael Gerhard, a professor at the University of North Carolina Law School and an expert on impeachment. In fact, his new book is called The Law of Presidential Impeachment. It seemed like the focus of the argument for Trump's lawyer was that under the Constitution's impeachment clause, a president can't be prosecuted unless he's first impeached and convicted over the same charges. Tell me about that argument and what you think of it.
It's really dumb as it's not a good argument. There are three judges in the late nineteen eighties that all faced impeachment, and all three were actually tried criminally before they were impeached, and they raised that argument back in the late ninety eight and courts rejected. There's no constitutional requirement that impeachment proceede a criminal investigation. Whether a criminal investigation proceed an impeachment, their separate proceedings just as simple.
So then where did they get that argument? Did they make it up out of whole cloth?
I think they largely made it up. I think it's designed in part to delay things. That's first. Secondly, I think it is probably and this might be the best characterization of it. It might be loosely based on some constitutional language that seems to leave an inference after an impeachment that officials could still remain liable at law, but that's not a command. That's just basically suggesting that after impeachment there could be separately go proceeding. But I would also maybe suggest third that I think it's just another variation of Trump's arguments, which date back to his presidency, that he currently no other president, but he at least is above the law.
That led to some really startling hypotheticals. Judge Florence Pan asked if a president ordered Seal Team six to assassinate a political rival, could he be criminally prosecuted? And Trump's lawyer seemed reluctant. Over and over again. She tried to press him yes or no, Yes or no. He seemed reluctant to even make a concession there.
Well, I think that he was, in a sense, arguing from a corner. So he's already backed in, and I think he thought maybe his best option was just to take a hard line. But I think that question, among others, sort of underscores the absurdity of Trump's argument.
Did you see any inkling that any of the judges were buying that particular argument.
I did not, but that may not mean very much. There's not always a complete overlap between what happens in a oral argument and what comes out of an opinion. So you know, lawyers tend to take with a grain of salt all the questioning in oral argument because boris understand it may not necessarily to or predicted exactly what the opinion might look like. But I think before there was any argument that I and other scholars to short study this area thought Trump's arguments was probably at best a week. It's not absurd, and I think that the judges at least appear to have so far taken the stimular sort of approach.
So before the argument, I had understood, well, did the lawyer concede that then Trump does not that if his premise is correct about the impeachment clause, that Trump does not have absolute presidential immunity.
Was that conceded by him at all? I couldn't tell.
I don't know that the lawyer made any such concession. But the lawyer's arguments, if you kind of think about them, practically speaking, the lawyer's arguments in this oral argument today is the same as they were all throughout Trump's presidency, and that is that Donald Trump is somehow above the wall. But there's no way to hold Donald Trump accountable for anything.
Well, I expected more discussion of whether Trump's actions on January sixth were part of his official duties or discretionary. What did you hear about that particular issue?
Now, I was a little surprised that that was impressed more so by Trump's lawyers, not because there was a good argument, but just because it's an argument that could make So I think that I don't want to read too much in the silence is you know on either side, but it strikes me as possible that Trump's lawyers may have recognized that they'd have to draw a line at some point about where official duties end. They can't argue that official duties are boundless because the Speedwar has rejected that in more than one and I think that Trump lawyers probably were reluctant their fortune engage with this issue because they don't want to draw that line.
There was one thing that I think one or two of the judges picked up on. Judge Karen Henderson express concern that a ruling saying the president doesn't have immunity would lead to politically driven prosecutions of future presidents.
How do we write an opinion that would stop the flood dates.
Your predecessors, in their ollc opinions, recognized that aliability would be unavoidably political.
What side had the better of that argument?
Well, I think that question really has been answered already by the United States Supreme Court. They answered it in case called Trump versus Vans And in that Supreme Court case, the Supreme Court ruled that a president in Trump's case, then a sitting president may be subject to state criminal prosecution. Trump tried to argue in that case, oh, the president could then be subject to all sorts of partisan prosecutions, and Spreme Court rejected that because the Court said, they're all sorts of stafeguards against that. So it's not really going to be a real or practical concern because if that's the motivation, Again, if it's in federal court, set of judges could obviously try to not just look behind it, but so could state judges, And ultimately, a state prosecution of somebody, let's say, who used to be president is still possibly appealable to the United States Supreme Court, which is a whole other stateguard that could exist. So there's no reason to think that the possibility of a prostitution used. This may never be across the teacher.
Well.
Trump suggested on Monday that if the court doesn't rule in his favor and he wins the presidential election, he'd have Joe Biden indicted. So we'll see what happens there.
Not a good thing, I think, because presidents shouldn't be making that decision here.
Stay right there.
Michael will discuss more about the contours of any decision coming up next. And Donald Trump was actually in the courtroom for the oral arguments and had some comments afterwards.
And I think we're doing very well. I think it's very unfair when a opponent, a political opponent, is prosecuted by the DOJ, by Biden's DOJ. So they're losing in every ball, they're losing in almost every Demographic numbers came out today that are very mind boggling if you happen to be Joe Biden. And I think they feel this is the way they're going to try and win, and that's not the way it goes. That will be bedlam in the country. It's a very bad thing. It's a very bad precedent. As we said, it's the opening of a Pandora's box. And that's that's a very sad thing that's happened with this whole situation.
I'm Jim Gross when you're listening to Bloomberg.
Never in our nation's history until this case, as a president claimed that immunity from criminal prosecution extends beyond his time office. The president has a unique constitutional role, but he is not above the law. Separation of powers principles, constitutional texts, history, precedent, and other immunity doctrines all point to the conclusion that a former president enjoys no immunity from criminal prosecution.
James Pierce, a lawyer working with Special counsel Jack Smith, explained to the d C. Appellate Court today why former President Donald Trump is not immune from prosecution for his attempt to overturn the twenty twenty election. In his final days as president, Trump was in the pack courtroom listening, even though he was not required to be there. The panel of three judges, two Biden appointees and one George W. Bush appointee, appeared very skeptical about Trump's claim that he has presidential immunity from the criminal charges brought by the Special Council and his attorney, John Sower, appeared to be caught by the judges questions several times, particularly when judges Karen Henderson and Florence Pann noted that the lawyer who represented Trump during his twenty twenty one impeachment trial had in fact suggested that he could later face criminal prosecution.
He did not say that.
Could never be raised immunity defense. It's that criminal process could going.
There's a quote in the congressal record in which your council, I'm sorry, your client sets through cal No former officeholder is immune from investigation.
Investigation, is what There's no issue. Well, that may be true of subbortinate officers, but as to the principal officer of the president, he is immune unless he is impeachent connected ay, and it comes back to the point way he.
Was president at the time, and his position was that no former officeholder is immune. And in fact, the argument was, there's no need to vote for impeachment because we have this backstop, which is criminal prosecution. And it seems that many senators relied on that voting to a quit.
Trump is trying to get the panel to reverse a ruling by federal trial judge Tanya Chutkin, who rejected Trump's immunity defense and suggested he was seeking the power of a monarch. I've been talking to Michael Gerhard, a professor at the University of North Carolina Law School. So the Special Council and Judge Michelle Child pointed to the fact that Richard Nixon was pardoned upon leaving office to show that it's been assumed that presidents can be prosecuted after leaving office.
Is that much of a legal argument, though, I think.
It's a perfectly good argument, because what it's doing is is trying to ensure that whatever the court does now is going to make sense of the whole system as we've understood it up untown now. And so the pardon of Nixon presumed that Nixon could be criminally prosecuted for things he had done as president. That presumption cuts directly against Trump's arguments right now, and by the way, that's not from a democratic president.
There was a question at the beginning of jurisdiction, and it wasn't raised by either of the parties, and it seemed like neither of the parties wanted to endorse it. But it was by an amiicus brief that Trump doesn't have the right to make the request before trial. What's known as an interlocutory appeal. Would you explain that and where you think they came.
Out on that.
Sure, Well, a jurisdictional issue has to do with not court or a court has the power to do something. So a jurisdictional issue may be raised at any time, and it may be raised by the court itself. Court doesn't have to rely on the parties to a case, because the court's always going to be concerned with do we have the power to decide this case or even hear this case? And an interlocuatory appeal is an appeal that could be made before the end of the case. So an appeal could be made to some higher court based on some concerns, and they may be so excuse that it could be raised before there's actually been a trial, or before there's even been conviction, or the case is not yet over. I think the court was reasonable in raising this question. The fact that either side could really address it well might suggest that either side has thought about it very much. But what is clear is that Trump is trying to raise this now before he's he's gone to trial, much less having been convicted, and so that raises a question, least in my mind, not so much about whether there should be an intelocatory appeal that is a special appeal right now, but what we call a rightness issue, is the issue really right as a mature to the point where a court suard decided in rightness and they also become a concern for a colored cord as well.
Yeah, I mean, so there are a lot of things that the appellate court could do. They could say they don't have jurisdiction at this point. I mean, they could go just based on the Constitution's impeachment clause and Trump's argument there.
Yes, I mean, of course they could craft this anyway they like. I think generally speaking, it has long been understood and I would even argue well settled that there's no what we'll call a double the jeopardy problem with having an impeachment on the one hand and a criminal process on the other. They are two separate proceedings, and an impeachment proceeding is not a criminal proceeding. So the double jeopardy clause mean you can't bring two criminal prosecutions for the same in this conduct doesn't apply because it's not a criminal process. Beyond that I think that the court has to be thinking, among other things, about what kind of precedent are we going to establish here? And if I had to guess, my guess would be that the Court's going to not want to establish a precedent that makes it easier for presidents to be above the wall. The bottom line is Trump's going to face criminal trial, and you can't avoid that.
What's the best argument of all the arguments Trump made? What's the best of them?
I confess I'm not sure any of them are any good. And I mean it seriously. I mean, I've studied this for decades. I think these arguments are They've all been raised to some extent in the past, all have been rejected or found the lack of credibility by historians. So I confess I could think of one.
And so Trump's lawyer asked for a stay of the opinion so that they can appeal. So if they appeal to the full DC Circuit as for an on bank hearing, do you think the DC Circuit would.
Take on bank?
Well, you don't know the answer. I'm not sure why the full DC Circuit needs to hear this. I think that's another move by Trump's lawyers to delay everything, sort of to throw a lot of legal process and the proceedings against him as a way to kind of delay them in the hopes I suppose that Trump will win the presidency and pardon themselves, or that one of his bacoltes will win the presidency and pardon him. But the courts, I think, are aware of the possibilities that they're being used here, and generally speaking, courts don't like to be used in that manner.
Everyone assumes that this is going to be appealed to the Supreme Court no matter what happens, and a lot of legal experts are predicting that the court will take the case.
But is that necessarily true.
No. Let's say, for example, this current panel concludes that none of Trump's arguments are credible, and the court rejects all of them. The Supreme Court could simply reject any appeal based in part on the justices considering there's no real issue here and we have to decide because what the panel would have concluded is consistent with whatever courts have said before. So there's no compelling reason why the US sping Court needs to get needs to intervenient at this point. The other thing I might just raise at this point is to just make note of the fact that Trump is still trying to argue that as a former president he has some kind of special community. The sitting president may not be immune to criminal process that was decided by the USPN Court. When Trump is president, it's Trump versus Advanced. So as a former president, Donald Trump's making these are quite long reaches claiming for a former president immunity that, by the way, no sitting president has ever had, and that just increases the odds. I think that courts will reject his.
Claim, and the decision from the panel of the DC Circuit could come at any time. Thanks so much, Michael. That's Michael Gerhard, a professor with the University of North Carolina Law School. His new book is entitled The Law of Presidential Impeachment. Coming up next on the Bloomberg Lan Show. Do you know what it takes to get on the no Fly list and what it takes to get off? Those questions were explored at the Supreme Court. I'm June Grasso, and this is Bloomberg. This week, the Supreme Court sought to untangle whether an Oregon man can proceed with a lawsuit against the FBI for placing him on its no fly list before removing him and then calling the matter moot. The justices heard arguments in the case of Jonas Fikre, a US citizen who sued the government over his placement on the list. Fikree says he learned he was on the list in twenty ten while traveling to Sudan, after FBI agents approached him asking about his association with a particular mosque in Portland. Joining me is Hinna Shamsi, director of the acl u'sed National Security Project, the ACLU f Wild, then amikas brief in the case. So start out by telling us what happened to Jonas kra Well.
Yonis Sicra is a US citizen who discovered that he was on the no fly list in twenty ten, and he then filed a lawsuit saying that the government wrongly placed him on the list in violation of his constitutionally protected right to travel, and that the procedures that the government used to place him on the list violated fundamental due process. So the case moved forward, and the government then removed him from the list in twenty sixteen, and since then, it is argued that his lawsuit could not go forward because it was moot there was no live case or controversy to be adjudicated. Mister Ficra then appealed from a district court judgment in the government's favor, and the Ninth Circuit Court of Appeals twice shoed decisions in mister vickras favor, rejecting the government's attempts to end the case. And that's when the government appealed to the Supreme Court, and that's the argument that the court heard.
Does the FBI frequently refuse to tell someone why they've been placed on the no fly list or why they've been taken off the list?
Absolutely, you know, And this is one of our fundamental problems with the no flylist and why we've been working on litigating these issues for about twenty years, which is that the no fly list program potentially operates in a black box of executive branch discretion and secrecy. The government refuses usually to tell people the full reasons and most often any reason for placing people on the no fly list, and so for decades and other rights groups have documented the secrecy and unfairness of this program, and it's devastating consequences for people's lives, yet it remains a black box. Let me be more specific, Americans who are on the no fly list and West often left in the dark about why they've been placed on the list. They're not given any meaningful explanation when they are removed, if they are removed, or any guarantee against being wrongfully placed on the list in the future. And the issue before the court was whether mister Sikra's case could go forward after he had been removed.
Does mister fire know why he was put on the list?
He does not have the reasons, all the reasons that he was put on the list. You know, in the argument that took place on Monday, the government repeatedly said, well, we've provided a reason, you know, we've explained the criteria for placement on the no fly list that was applied to him. But here's the problem. What that means is that the government has disclosed what standard it uses to place people on the no fly list. And we can talk about why that standard is vague and broad and deeply problematic, but it hasn't disclosed the reasons that it thinks mister Fikra satisfied that standard. So mister Figray doesn't know what he's alleged to have done wrong in the first place, and how he can, as he argued to the court, you know, know what to do in order not to be placed on the no fly list again in the future.
It seemed as if several of the justices cross ideological lines, were sympathetic to mister Fikra. Justice Brett Kavanaugh said, that's a complete wild card.
A return to the.
List still depends on the FBI's assessment of someone's activity based on a multi factor security threat threshold. We're in the dark, and Justice Sonya Sotomayor said, how can someone tell you that they're not going to engage in a terrorist activity if they don't know what terrorist activity you claim they did?
So Catch twenty two.
It is a real catch twenty two and it was a concern. You know, the discretion as well as the secrecy is something that the justices, and I think a lot of the justices across the spectrum were troubled by or expressed concern about, because, as often happens, courts as well as the people who are impacted by the placement, are left in the dark in this black box of a program, just.
As Elena Kagan suggested that the government should be required to go before a judge in private to explain why someone had been placed on the no fly list and why they've been removed from the list and what they would not be returned to the list, and Justice course it seemed to agree with that. Is that a possible solution here?
Well, you know, I want to start with what justice the Gorsich said, which is that you know, normally in our legal system, we have a right to know what evidence the government has against us, and Justice Gorsic rightly said, that's due process, that's a pillar of our democracy. And why is it? I think he asked that an American citizen who's been denied a right and evidence, why shouldn't he be able to determine what's at state? So, you know, one of the factors in one of the alternatives proposed during the argument in court was that the government could provide its reasons to judge in camera, meaning you know, in continued secrecy a judge to make a determination, and that would certainly be better than what exists now or what mister Fickray was facing, which is not being able to have any kind of meaningful guarantee that the government would not place him on the list wrongly again in the future. I think we should still pause and think about what that might mean though that the government tells a judge. But if your person who has been left in the dark about why you've been placed on the list in the first place, why you've been denied as some of my clients have the right to travel to be with their loved ones on their sick beds, to attend funerals or weddings or graduations, you know, surely more is required to the person impacted themselves. But let's see how the court rules.
So the FBI's position is that this is moot. Is that right?
The FBI's position was that they have told mister Fikra that he would not be placed on the list again quote based on currently available information, and that that is enough to end his case. And what mister Fickra was arguing was that that isn't enough. That when the government acts as it did here, which is that it voluntarily takes someone off the list, the case is not moot because the standard the government has to meet is to make it absolutely clear that the allegedly wrongful behavior won't happen again, and mister Fikra argued that the government hasn't repudiated its decision to put him on the list, and it remained free to return him to the list for the same reasons and using the same procedures that mister Fra ledges were unlawful. So, in essence, mister Fickray was asking for his case to go forward so he could have his day in court.
The Chief Justice suggested that the government's promise might be enough. Did you get a feel from the justices about what they might do here?
Well? I think what leaves me cautiously optimistic about the argument is that most of the justices understood that a system in which a person does not know the government's reasons for placing them on the list or taking them off, it that there's not really a guarantee here against the kind of wrongful conduct that is being challenged occurring.
Is this the first time the no fly list has come before the justices.
It's not the first time that a no flylist related issue has come before the justices. There was a previous case about whether an individual who alleged that he was placed on the no fly list after he refused to become an informant, whether he consued to retain damages under the Religious Freedom Restoration Act because he said that, you know, he refused to become an informant because to have become an informant would have gone against his religious beliefs. You know, it's important to know that the issue in the case was whether mister Fikray's constitutional claims could go forward. The issue was not the lawfulness of the government's no flylist placement and administrative redress process. The Court has never actually ruled on the lawfulness of the no flylist placement and redress process, but the lawfulness of the government's no fly list program itself, whether the decision to place people on the list, or the constitutionality of the administrative redress process the government provides. None of that was before the court, but to understand whether the case was neot or not, it was necessary for the Court to consider what the program is, and as we argued in our Friend of the Court brief that we submitted to the court, it was necessary to understand government discretion and the secrecy that the government asserts in making its decisions. So we identified in fact, you know, we comb through federal court dockets, and we identified forty US citizens and residents who had challenged their placement on no fly list in court, and we found that the government kept secret the full reasons or any reason for placing each of them on the list. And we argued that from what is publicly known, the government removed about seventy percent of those people from the list during litigation, and many of the removals occurred just before court imposed deadlines or while awaiting court rulings. So, in essence, the government can take people off the list and prevent their challenges to placement or the process from being heard, and we wanted the court to take that into account in making its determination in mister Fikra's case.
Let me ask you a general question. So someone gets placed on the no fly list and they don't know why, who do they sue to try to find out or try to get off the list.
So when people are placed on the no fly list, they can avail themselves of a process called DHS trip It's through DHS and what that requires is that you submit information to Dhryes saying I think I'm on the no fly list and I'm wrongly on the no fly list, and the government will review this information, and if you're a US citizen or a lawful permanent resident, it will, after a couple of different stages, tell you if you're on the no flylist. It will tell you what standard it used to place you on the no fly list, and it can but as we found, most often does not provide you with a summary of the reasons or a reason. But most often, we've found that the government does not provide all or even most often any reason for placing people on the list. So that's often when people sue to compel constitutional due process us to find out why they've been placed on the list and to seek a meaningful process through the court to remove themselves.
It'll be interesting to see how far the Supreme Court goes here.
Thanks so much for being on the show.
That's Hannah Shamsey, director of the acl USED National Security Project, And that's it for this edition of the Bloomberg Law Podcast. Remember you can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com slash podcast Slash Law. I'm June Grosso and this is Bloomberg
