Michael McConnell: We’re talking about trusting the prosecutorial discretion of people appointed by the other party. And I think this special prosecutor function here actually makes things worse, because the Attorney General can appoint someone who’s 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 that.

Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Pam Karlan. Don’t forget to subscribe or follow this feed on your favorite podcast app. That way, you’ll have access to all our new episodes as soon as they’re available. Today we’re really lucky to have with us Michael McConnell, one of our colleagues at Stanford.

Michael is the Richard and Frances Mallory Professor and Director of the Constitutional Law Center at the Law School. He’s also a Senior Fellow at the Hoover Institution. He’s had a distinguished career. In both the executive and judicial branches of the federal government, serving as a circuit judge on the United States Court of Appeals for the 10th Circuit and being confirmed by unanimous consent in the Senate.

He also served as an assistant to the solicitor general in the Department of Justice as a member of the President’s Oversight Board. And as Assistant General Counsel, the Office of Management and Budget. And one thing I will just say about Michael is, I remember having dinner once with Justice Brennan many years ago.

And Justice Brennan said to me at the dinner that Michael was one of the two smartest clerks he’d ever had, and only wished that he could have persuaded Michael that he was right about some of the issues on which they disagreed. So welcome to the podcast, Michael.

Michael McConnell: Thanks Pam.

Pam Karlan: So you also have just written a wonderful book, which was published in 2020, called The President Who Would Not Be King: Executive Power Under The Constitution.

Could you tell us a little bit about what you mean by The President Who Would Not Be King? George Washington, clearly, but what about today?

Michael McConnell: Yeah, so this is actually 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 space. They were making it up fresh and the very 1st day they discussed the matter, the proposal was up and one of the delegates, Charles Pinckney from South Carolina, kind of gasps. And he says, but this will make the executive a monarch. And really is, I think the entire discussion in Philadelphia was organized by the idea that they needed an executive.

And be able to get the laws executed and be able to provide direction for the country. But not to have the danger of becoming a monarch.

Pam Karlan: How has that played out over time? It seems that the, if you look at the constitution, it starts with Article One, which is about Congress, which suggests they thought maybe Congress was going to be the most important branch and then gets to Article Two, but at least since the Roosevelt administration, seems that things have really been flipped.

Michael McConnell: Yes, they were not very good prophets. Madison, probably the most important of the drafters, who 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 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 do 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.

Pam Karlan: Yeah, this sort of, it takes several years for the court to get around to things and one of the things obviously that it’s taken several years to get around to is the question whether President Trump should be held liable criminally for any of the activities that happened at the very end of his first presidential administration.

Michael McConnell: 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.

Pam Karlan: The United States has never had a president other than Ulysses Grant for speeding in his carriage somewhere.

They’ve never had, we’ve never had a president who’s been actually charged with a crime. I think the closest we probably came was with Richard Nixon accepting a pardon.

Michael McConnell: Of course, we had a vice president who was convicted of bribery, of accepting bribes while a vice president.

Pam Karlan: And he was also, he was, he had come out of Baltimore, so I guess there was a kind of assumption that he might be, he had been the county executive.

Michael McConnell: I’m not going to touch that.

Pam Karlan: No, I didn’t, I wouldn’t touch it either. So it seems to me there are two kinds of 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’s some crimes that it would seem to be 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. The president, we saw this hypothetical in the DC circuit about 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, one from another when you think about whether a president can be charged.

Michael McConnell: I certainly do. And I think the Supreme Court likely will as well.

Pam Karlan: So how do you, what’s the difference between them?

Michael McConnell: If we want to go to what the Supreme Court has said in the past, and I should say, at the beginning, the Constitution says nothing about this.

So all of this has been concocted. Now, the only immunity for anyone in the text of the Constitution is for members of Congress who cannot be, quote, questioned in any other place. About their congressional activities, but over the last 100 or so years the courts have fashioned.

Immunities of them. Judges are absolutely immune for what they do as judges and prosecutors a little bit more complicated, but absolutely immune for a lot of it. Congressional aides are absolutely immune, even though they’re not mentioned either. And then under Nixon came a case called Nixon against Fitzgerald.

It did not involve a criminal prosecution, but rather a civil case, and the court held. That presidents and former presidents, that’s important, former presidents, are immune from being sued civilly for wrongful actions or allegedly wrongful actions that they committed that were, quote, within the outer perimeter of the United States.

Of their official duties. So I think that’s the closest case to what we have. I think what the Supreme Court has to decide in the Trump case is whether to extend the immunity that they found in Nixon against Fitzgerald to criminal prosecutions.

Pam Karlan: Yeah, and it’s, I think it’s important for our listeners to understand that when we say that the president was absolutely immune in civil cases, it was, he was absolutely immune from damages liability.

That is paying damages in Nixon against Fitzgerald to a whistleblower who’d been fired. Presidents are sued all the time for injunctive relief, either directly or by suing the president. The people who are carrying out their jobs. So that’s not, presidents aren’t immune in that sense.

Michael McConnell: That’s right.

And there is a difference between former presidents and presidents also. Former presidents are unlikely to be sued for injunctive relief because they’re, since they’re no longer president, they can no longer do anything anyway. And then presidents, current presidents can be, actually, they can’t be sued for injunctive relief.

That’s Mississippi against Johnson. But they can, in effect. And joining the officers who would carry out their orders from carrying them out. 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 that would include a private crime, although that’s never actually come up.

And this is just Department of Justice policy, but it’s been policy in Republican and Democratic administrations alike, but we don’t have to worry about that policy. That’s a hard enough problem, but. Trump is a former president.

Pam Karlan: 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 that’s because the president is the head of the executive branch, right? And having this kind of prosecution going on at the time, he’s trying to govern the country, just doesn’t work. Is that the rationale for why a sitting president can’t be tried?

Michael McConnell: I think so. Of course, there is the odd twist to it that from Clinton against Jones, and I have to say, I was surprised at Clinton against Jones, but that said that the president, a sitting president, can be sued.

For completely private matters. This is sexual abuse or not a sexual harassment of some sort against Bill Clinton. And that case went forward. You would think that would be pretty distracting as well. But the court said it could go forward.

Pam Karlan: Yeah, one of the court’s worst predictions in some ways was this case is not going to, is not going to affect the government.

It’s like their views in independent counsel cases as well.

Michael McConnell: It’s so true that they’re not really very good at guessing what the practical implications are going to be of what they do. In this case, I was really struck in the lower courts by the fact that the two sides, that is Jack Smith, the prosecutor and the Trump defense counsel, both took.

extreme sort of all or nothing positions. Jack Smith took the position that the President isn’t immune for anything, and the Trump people took the position that the President’s immune for everything, and it seems to me those two extreme positions were always implausible. But when they got to the Supreme Court, The cert petition came in, the petition asking the court to hear the case, and it said, basically, I can’t quote it exactly, but very close to the saying, 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, before they ever heard anything, they were taking a, they were indicating the likelihood that it was going to be somewhere in between.

Pam Karlan: And I think they even added to that question that, and I think what you’re pointing out is absolutely right, is they added to the question for acts within the outer perimeter of his official duties. So it seemed to me they were taking off the table. Could you prosecute a president for acts he committed, even if he committed them in the White House, if they weren’t about his official duties?

So a president who signs false tax returns while he’s sitting at the resolute desk, or a president who beats up one of the cooks in the White House kitchen.

Michael McConnell: That’s right. But even about two thirds of the briefs from both sides are still back in the two extreme corners. But at the oral argument, I don’t think a single justice looked like they were interested in the extreme corners.

And so during the argument, the two counsel had to be, they came somewhere toward the middle and began arguing about where the lines were going to be drawn.

Pam Karlan: Yes.That made me wonder a little bit about why the court didn’t take the case in December. When it first came to them on what’s called Sir Ari before judgment, because they seemed to be completely uninterested in anything the DC Circuit had done.

The Chief Justice, I thought, was quite dismissive of the DC Circuit’s opinion, and yet it took them a couple of months to go through that process.

Michael McConnell: I don’t, I don’t know. None of us knows, but I think they expected the DC circuit. to look at the case quite differently. The D.C. Circuit was just some, no immunity at all, and it was a, I think, a pretty shoddy piece of legal work.

And had the D.C. Circuit held that the prosecution can continue for those aspects of the indictment that are private in nature, it could be that the trial could have begun months ago. If Jack Smith had just heard that and taken it. Because there are, in the indictment, there are clearly crimes, alleged crimes, that are private in nature, and for which there are charges.

Mr. Trump is not immune, and so why not just, I think the Supreme Court was taken by surprise.

Pam Karlan: Yeah, it was interesting to me at the very end of the oral argument by Trump’s counsel, Justice Barrett asked a series of questions in the lightning round and for those of our listeners who haven’t followed the Supreme Court recently, It used to be that each side got a half hour for oral argument, and in the old days, in the days of Chief Justice Berger or Chief Justice Rehnquist, when your half hour was up, they would cut you off in mid sentence, and you would sit down.

During COVID, the court started hearing oral arguments seriatim, so they would have each justice in order of seniority ask questions, and they’ve now blended those two together, so you get a 30 minute oral argument, and then the individual justices get to ask questions in order. And I thought, That Justice Barrett had it exactly right in saying to Trump’s lawyer, okay, now, 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 or and it seemed to me there, Trump’s lawyer conceded, no, those things were not part of being president.

The closest he could come is, the president cares about the country, which seems, message “we care” seems a little long. And I thought at that point the argument’s 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.

Michael McConnell: That I did think that exchange between Justice Barrett and Sauer that the defense counsel was the high point of the argument.

And you said he conceded that, I have it right in front of me. So she says he quotes the three different. Of acts from the indictment and she says private and sources that sound private to me. Yes, and then another one and she said, and he says that also sounds private.

Pam Karlan: Yeah, I thought I was like, the ballgame.

Michael McConnell: I think that’s a concession that there are at least 3 things in the indictment that are private.

But on the other hand, some of the very, some of the indictment is, I think, quite clearly not private.

Pam Karlan: Yeah, I think the leaning on people at DOJ is not right.

Michael McConnell: Yeah, when he talks to DOJ, when he says to the Attorney General to investigate alleged fraud that’s the, that’s acting in his presidential capacity, whether you like it or not, it’s presidential.

And I do agree, I don’t quite understand the way the argument went from there, but I had thought maybe I was hearing it wrong, but I took it to mean that it absorbed the idea that there were some things that were private, and now they were thinking about the other things, and how there weren’t.

Potentially disruptive, it could be to presidencies in the future if criminal prosecution was on the table. But that gets us, Pam, to what I think is the real crux of the case, which is the Jack Smith, the prosecutor’s argument that, in fact, criminal prosecutions are less disruptive to the presidency and more and that there’s more of a public interest.

So he says that Nixon versus 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.

Pam Karlan: But if the criminal prosecution is only after somebody leaves office, then the disruption, if there’s any, would be that you are chilled while you’re still in office by the prospect that you’ll be prosecuted afterwards. And the other thing is, of course, there are what, 300 million Americans who could be a plaintiff in a civil lawsuit. There’s only one department of justice.

Michael McConnell: 300 million people who can sue. And then because our part, our presidency tends to go from one party to the other.

On the other side, it’s just the other party.

Pam Karlan: Michael, you were saying that you thought Jack Smith’s argument that somehow criminal prosecution was less problematic than the civil damages lawsuits that are foreclosed by Nixon against Fitzgerald might be incorrect, that actually the criminal prosecution might be equally problematic or worse than civil damages lawsuits.

Michael McConnell: Yes, for one thing, the impact of being Prosecuted criminally is just so much more damaging to you. It’s 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. 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 of ours, that it is, 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’s 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.

And I certainly would not, if I were a Democrat, I would certainly not be confident that President Trump’s administration would be very reluctant to bring Trump.

Yeah, he campaigned in 2016 on the idea of “lock her up.”

Michael McConnell: It is, which was absolutely appalling. That was the point when I, one of the points when I really became concerned.

But note that for four years, he didn’t bother Hillary Clinton, so that was just rhetoric.

Pam Karlan: But he’s now announced next time.

Michael McConnell: Next time, it’s not going to be that way because he’s been on the other end of this. So Jack Smith said you can count on grand juries and on prosecutorial discretion to protect against abuse.

Well, grand juries are no protection at all. And I think prosecutorial discretion is also I think in these times, it’s not something that I would count on.

Pam Karlan: One of the things that surprised me about that is Justice Alito’s reaction, which was to suggest the Department of Justice is a nest of vipers.

Grand juries are no protection. 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.

Michael McConnell: 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.

Pam Karlan: Yeah, I guess that’s right. And there was a moment in the, also in the oral argument, apropos of your point about special prosecutors, where Justice Kavanaugh gave a kind of responsive reading from a chunk of Justice Scalia’s testimony.

dissent in Morrison against Olson, which was the case, which Justice Scalia presciently said that the entity of the existence of an independent counsel would lead to all sorts of excesses. And I was almost waiting at the end of that for Justice Kavanaugh to say, I was part of this process and I’m heartily sorry, but we didn’t quite get there.

Michael McConnell: Yes, it reminds me of Justice Jackson’s Robert Jackson’s comment on the steel seizure case that that these, that when they were quoting, the other side quoted an a legal opinion that he himself had Issued as Attorney General, and he refers to these as self interested legal opinions, and that they can’t, that justices should not pay too much attention to them, even when the writer was himself, which I always thought was quite gracious and witty.

Pam Karlan: Yeah, it’s as Justice Frankfurter’s line about wisdom seldom comes, and if it comes, We shouldn’t be upset when it comes too late. So one of the one of the questions I have for you is 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 gonna happen next?

Michael McConnell: The time seems to have run out, which is a product of a lot of different factors. Smith, Dalley, getting Smith appointed was slow. 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, 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.

There may be some I, when I look through the indictment, I have pretty strong view as to much of it as whether it’s official or private, but there are a few things in there that maybe they’re going to have to brief and argue. And there’s no way that can be done before the election. So I don’t think there’s going to be anything happening.

And then if Trump is elected, the whole thing will be over. And if Trump is not elected I don’t know, maybe the whole thing will be over anyway, because nobody will. 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.

Pam Karlan: Yeah, do you want to say something about the Fisher case?

Michael McConnell: Yeah, this United States vs. Fisher. Trump is not a party to this. But some of the January 6th defendants were charged with obstruction of justice under The Sarbanes Oxley statute, which was the statute that was passed in the wake of the financial crisis of a decade or so ago.

And the statute provides, I For a crime when someone and then there’s a whole list of things that are things like, destroying documents, etc. It’s things that are very financially oriented. And then it says, or otherwise obstructs an official proceeding. And so, some of the January 6th defendants were charged under this 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. That 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 that are under the same statute.

So that could whittle down the indictment even more. Then once you get the private stuff out and the obstruction under Sarbanes Oxley out, I’m not quite sure what’s left. Something is left. It’s not Zucrow, but it’s certainly not what it was.

Pam Karlan: Yes.One of the things just for our listeners is the Supreme Court had another one of these cases that involved Sarbanes Oxley that was the Yates case, which was a case about, because As you said, Michael, Sarbanes Oxley says you’re not supposed to destroy, papers, blah, blah, blah, blah, blah, or other tangible things.

And the case involved a guy who threw, he was a fisherman, and he threw some underweight fish over the side of his boat after he was ordered back to port. And the interesting thing was the lineup in that case which was a lineup where the majority said, Oh, this is not what Sarbanes Oxley was meant to deal with at all.

And then Justice Kagan had a dissent that said, “Read the text”. It was a kind of interesting, it was interesting back and forth.

Michael McConnell: in my favorite cases are the ones where they break on unexpected lines.

Pam Karlan: So it’ll be interesting. It’ll be interesting to see what the court does with that.

And of course, we should mention that there’s another Federal Jack Smith prosecution of Donald Trump, which has been held up in the district court now forever by an extraordinarily slow federal district judge. And that one involves his post presidency behavior in keeping a bunch of documents. And I take it that case.

I would be surprised if we even get to that. A trial date set before the election there.

Michael McConnell: Yeah, so that’s a mystery too. Of the four prosecutions, I think most people think that’s the strongest one.

Pam Karlan: It’s certainly the most straightforward.

Michael McConnell: What’s being indicted is actually a crime. It’s 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 then 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 So I think they’ve got him dead to rights on the crime there But why did jack smith bring it in Florida?

I think just as easily it brought it and either DC or…

Pam Karlan: I think I have an explanation for that. It might be wrong, but it was that at the time he brought the indictment. There was a case up at the Supreme Court. That was about whether if a case went through to a verdict in a jurisdiction in a federal district where venue was improper.

And the conviction was reversed for improper venue. Could you try the person in a jurisdiction where venue was proper? And so there was a little bit of concern. 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.

But that’s just a guess on my part.

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

Pam Karlan: No, I think it was that the refusal to turn the documents back over was, that, that

Michael McConnell: But it’s retention is the crime, I think.

But I think it, 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.

Michael McConnell: Yeah, but anyway, it’s ironic that the most straightforward prosecution is the one that’s on the slowest track.

Pam Karlan: Yes. Yes, indeed. Michael, this has been super interesting, and I thank you so much for coming to talk to us. This is Stanford Legal. If you’re enjoying the show, tell a friend and please leave us a rating or review on your favorite podcast app.

It’ll help us to improve the show and get word out to others. I’m Pam Karlan. See you next time.