On a recent episode of the Stanford Legal podcast, co-host Pamela Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law and co-director of Stanford Law School’s Supreme Court Litigation Clinic, sat down with Michael McConnell, Richard and Frances Mallery Professor and director of SLS’s Constitutional Law Center, for a wide-ranging discussion of the cases involving former President Trump. From historical debates about executive power to current questions about presidential immunity, Karlan and Mcconnell each draw on their deep expertise in the federal courts and the political process. McConnell, a former judge on the 10th Circuit Court of Appeals, is also a Senior Fellow at the Hoover Institution. 

The following is an edited version of the full podcast transcript, which can be found here.

You wrote a wonderful book, which was published in 2020, called The President Who Would Not Be King: Executive Power Under The Constitution. Can you talk about that?

The book is about the Founders’ design for the presidency because they didn’t have any models to follow. They didn’t want a king, but there actually had never been an effective, strong executive in a republic over any extended time. The entire discussion in Philadelphia was organized around the idea that they needed an executive who would be energetic, and be able to get the laws executed, and be able to provide direction for the country, but avoiding the danger of him becoming a monarch.

How has that played out over time? If you look at the Constitution, it starts with Article I, which is about Congress, which suggests they thought Congress was going to be the most important branch, and then it gets to Article II, but at least since the Roosevelt administration, it seems that things have been flipped?

Yes, the Founders were not very good prophets. Madison, probably the most important of the drafters, was worried that the president would be too weak and was constantly trying to think of ways in order to keep Congress from being able to swallow him up. As you say, at least since World War II, probably back even farther than that, the executive has become so predominant to the point that today we have a Congress that does very little and presidents that just unilaterally are able to make policy about any number of things. A lot of times this is not legal, but it takes the Court several years to get around to telling them they can’t do it.

One of the things it’s taken several years to get around to is the question of whether President Trump should be held liable criminally for any of the activities that happened at the very end of his first presidential administration.

That’s true, but let’s not just blame the courts. It took the Department of Justice to bring the claims. I think if they were serious about this, they should have done it right away.

So it seems to me there are two, maybe three, kinds of crimes a president might commit while in office. One set of crimes are the kind of crimes that any of us could commit: A president beats up his wife, that would be domestic violence and even if it happened in the White House, it would just be an ordinary kind of crime. A president who lies on his tax returns, that would be an ordinary sort of crime. Then there are some crimes that only a president could commit because no one else would be in a position to order other people to do the kinds of things that might be a crime. We saw this hypothetical in the DC Circuit: Could the president order the Secret Service or the Army to assassinate a political rival? And then there are crimes that are in between. Do you think about these differently when you think about whether a president can be charged?

I certainly do. And I think the Supreme Court likely will as well. I should say at the outset that the Constitution says nothing about this. The only immunity for anyone in the text of the Constitution is for members of Congress who cannot be “questioned in any other place” about their congressional activities. But over the last 100 or so years, the courts have fashioned immunities. Judges are absolutely immune for what they do as judges and with prosecutors it’s a little bit more complicated, but absolutely immune for a lot of things. Congressional aides are absolutely immune, even though they’re not mentioned either. And then under Nixon came a case called Nixon v. Fitzgerald. It did not involve a criminal prosecution, but rather a civil case, and the court held that presidents and former presidents are immune from being sued civilly for allegedly wrongful actions that they committed that were “within the outer perimeter” of their official duties. I think what the Supreme Court has to decide in the Trump case is whether to extend the immunity that they found in Nixon v. Fitzgerald to criminal prosecutions.

I think it’s important to understand that when we say that the President was absolutely immune in civil cases, it was that he was absolutely immune from damages liability. Presidents are sued, indirectly, all the time for injunctive relief. Presidents aren’t immune in that sense.

That’s right. And there is a difference between former and current presidents. Former presidents are unlikely to be sued for injunctive relief. Because since they’re no longer president, they can no longer do anything anyway. Current presidents can’t be sued for injunctive relief —that’s Mississippi v. Johnson. But they can, in effect, be sued for injunctive relief in cases that seek to enjoin the officers who would carry out the president’s orders. And then there’s this interesting doctrine that sitting presidents cannot be prosecuted criminally while they are president for anything. That would include, I think, a private crime, although that’s never actually come up. This is just Department of Justice policy, but it’s been a policy in Republican and Democratic administrations alike. That’s a hard enough problem, but Trump is a former president.

But if he becomes a president again in November, then presumably he would order the Justice Department to drop the two federal prosecutions and the Georgia prosecution would have to be stayed while he’s in office. And the rationale is that’s because the president is the head of the executive branch, and having this kind of prosecution going on while he’s trying to govern the country just doesn’t work. Is that the rationale for why a sitting president can’t be tried?

I think so. Of course, there is the odd twist to it from Clinton v. Jones, and I have to say, I was surprised at that case, which said that a sitting president can be sued [in a civil case] for completely private matters. That case went forward. You would think that would be pretty distracting as well. But the court said it could go forward. 

The Court is not very good at guessing what the practical implications are going to be of their decisions. In the Trump case, I was really struck, in the lower courts, by the fact that the prosecutor and the Trump defense counsel both took extreme all-or-nothing positions. Jack Smith took the position that the President isn’t immune to anything, and the Trump people took the position that the president’s immune from everything. It seems to me those two extreme positions were always implausible. But when they got to the Supreme Court, the cert petition came in and it said, basically, “is the president absolutely immune for acts he committed as president?” And the Court rewrote the question to say “To what extent is the president immune from criminal prosecution for acts he committed as president?” In other words, the Court realized, I think from the beginning, the likelihood that it was going to be somewhere in between.

It was interesting that at the very end of the oral argument by Trump’s counsel Justice Barrett asked a series of questions where I think she had it exactly right in saying to Trump’s lawyer, “Is there anything about being president that has anything to do with proposing fake slates of electors in a particular state or calling election officials and asking them to find you a bunch of votes?” It  seemed to me Trump’s lawyer conceded, no, those things were not part of being president. The closest he could come was saying, “The president cares about the country.”  I thought at that point the argument was over. But then, during the argument by Michael Dreeben, who was representing the special counsel, the justices seemed to veer back to fear that any kind of prosecution of a president would inevitably be political. And Justice Alito went as far as to suggest that if you prosecute presidents, they’ll try to keep from having to leave office because they’re worried about being charged.

I did think that exchange between Justice Barrett and Sauer, the defense counsel, was the high point of the argument. I think it was a concession that there are at least three things in the indictment that are private. But on the other hand, some of the indictment is quite clearly not private.

Yes, I think the leaning by people at the DOJ is not private.

Prosecutor Jack Smith’s argument was that criminal prosecutions are less disruptive to the presidency, and that there’s more of a public interest. So, he says that Nixon v. Fitzgerald should not be extended to criminal prosecutions. I have to say, I find that counterintuitive. It seems to me that criminal prosecutions are vastly more dangerous, disruptive, and scary. 

For one thing, the impact of being prosecuted criminally is just so much more damaging. Your life is much more harmed by that, having to be in the courtroom and so forth. Even if you’re not a candidate for president, it’s a much more wrenching thing. With civil lawsuits, you don’t have to be there. You can hire your attorney. They take care of it. It usually goes on for years, and it’s just much less of a traumatic experience. But the main thing, I think, is that in these hyper-partisan times, we’re talking about trusting the prosecutorial discretion of people appointed by the other party. And I think the special prosecutor function here actually makes things worse because the attorney general can appoint someone who is like a bulldog, and then say, “Oh, I, it’s not my doing. It’s Jack Smith’s doing.” And so there’s no political accountability for overreach.

One of the things that surprised me was Justice Alito’s suggestion that the Department of Justice is a nest of vipers. This is a man who, as far as I know, has very seldom seen a criminal defendant he has any sympathy for. And at the oral argument, he really suggested that the Department of Justice, for which he worked for many years, is a disgraceful organization now, and I was surprised by that.

It surprises me too, but having been there, he may realize just how much discretion there is and just how partisan the Justice Department can be.

Going forward, assuming that the Supreme Court does not hold that former President Trump is immune from absolutely everything in the indictment so that there’s something more to do in this case, what do you think is going to happen next?

The time seems to have run out, which is a product of a lot of different factors. I actually think Attorney General Garland did not believe that this should go forward. And I think he held back and held back as long as he could, until the political pressure just got to be too much. And so he’s finally succumbed to it, but the clock is running. The fact that the D.C. Circuit didn’t intervene any faster didn’t help. And now I think they just don’t have time. It would speed things up if Jack Smith would immediately dismiss those portions of the indictment that are plainly official in character.  If Trump is elected, the whole thing will be over. And if Trump is not elected, maybe the whole thing will be over anyway, because I think the political motivation here is pretty strong, so who knows. And then there’s also another case in the Supreme Court that could affect this.

Yes, do you want to say something about the Fisher case?

Yes, United States v. Fisher. Trump is not a party to this. But some of the January 6 defendants were charged with obstruction of justice under the Sarbanes-Oxley statute, which was passed in the wake of the financial crisis of a decade or so ago. It is a statute that is, of course, oriented to financial dealings but then it says, “or otherwise obstructs an official proceeding.” And so some of the January 6th defendants were charged under this law under the theory that they were obstructing Congress’s counting of the electoral votes, which as a matter of literal language of the statute is true, except you do wonder about the word “otherwise.” The word otherwise usually means—I actually had a case in which it hinged that the word otherwise was the key point back when I was on the 10th circuit— and it usually means something that’s different, but of a similar nature to the things that were listed. And who knows how this is going to come out, but if it comes out in favor of Fisher and the defendants, two of the four counts in the indictment against Trump would have the same failing. So that could whittle down the indictment even more. Once you get the private stuff out and the obstruction under Sarbanes Oxley out, I’m not quite sure what’s left.  

We should mention that there’s another federal prosecution of Donald Trump, which has been held up in the district court now by an extraordinarily slow federal district judge. That one involves his post-presidency behavior in keeping a bunch of documents.  I would be surprised if a trial date is even set before the election.

Of the four prosecutions, I think most people think that’s the strongest one. What’s being indicted is actually a crime that other people are really charged with. And I don’t think there’s much doubt either that he did it, and that he did it in a particularly bad way because he was hiding the evidence and telling his people to not show things to the FBI and so forth. I think they’ve got him dead to rights on the crime there, but why did Jack Smith bring it in Florida?

My guess is there was a little bit of concern at the time that if the documents were actually being held in Florida and you brought the case in the DDC or in New Jersey or the like, you ran the risk that it might not be the appropriate venue.

I thought venue depended upon the act. And surely the keeping of the documents took place in DC.

No, I think it was the refusal to turn the documents back over …

But the retention is the crime, I think. It may be that they were concerned that the “guilty mind” only occurred after he was asked for the documents and refused to turn them back over.  Anyway, it’s ironic that the most straightforward prosecution is the one that’s on the slowest track.

Pamela S. Karlan is co-director of SLS’s Supreme Court Litigation Clinic, where students litigate live cases before the Court. One of the nation’s leading experts on voting and the political process, she has served as a commissioner on the California Fair Political Practices Commission, an assistant counsel and cooperating attorney for the NAACP Legal Defense Fund, and (twice) as a Deputy Assistant Attorney General in the Civil Rights Division of the U.S. Department of Justice (where she received the Attorney General’s Award for Exceptional Service – the department’s highest award for employee performance – as part of the team responsible for implementing the Supreme Court’s decision in United States v. Windsor). Professor Karlan is the co-author of leading casebooks on constitutional law, constitutional litigation, and the law of democracy, as well as numerous scholarly articles. 

Michael W. McConnell is the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, and a Senior Fellow at the Hoover Institution. From 2002 to 2009, he served as a Circuit Judge on the United States Court of Appeals for the Tenth Circuit. He teaches courses on constitutional law, constitutional history, First Amendment, and interpretive theory. He has published widely in the fields of constitutional law and theory, especially church and state, equal protection, and separation of powers. His book, The President Who Would Not Be King: Executive Power Under the Constitution, was published by Princeton University Press in 2020, based on the Tanner Lectures in Human Values, which he delivered at Princeton in 2019. His latest book, co-authored with Nathan Chapman, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience, was published by Oxford University Press in mid-2023.