Preet Bharara:

From CAFE and the Vox Media Podcast Network, this is a special edition of Stay Tuned. I’m Preet Bharara. Another Supreme Court term has come to an end with the justices releasing decisions in many high-profile cases. Just this week, the justices issued the long-awaited ruling in the case where former President Donald Trump sought absolute immunity from criminal prosecution for his acts as president. President Biden addressed the ruling in a Monday evening speech from the White House.

Joe Biden:

For all practical purposes, today’s decision almost certainly means that there are virtually no limits what a president can do. This is a fundamentally new principle and it’s a dangerous precedent.

Preet Bharara:

The justices also issued decisions relating to January 6th prosecutions, emergency abortions, and the so-called administrative state. Joining me to discuss are my CAFE Insider co-host, Joyce Vance, CAFE contributor and CNN legal analyst, Elie Honig and CAFE contributor and NYU Law School Professor of Administrative Law and Constitutional Law, Rachel Barkow. Welcome to the show, a special episode of Stay Tuned and Insider, lots going on.

Before we start talking about the Supreme Court, and there’s a lot to talk about, and in particular, a lot to talk about with respect to the finally arrived immunity decision, such as it is, we are all recording having this conversation in the 1:00 PM hour on July 2nd, Tuesday. And we should just mention in passing that one bit of legal news emerged today unrelated to the Court, and that is the former mayor of New York City, the former US Attorney for the Southern District of New York has been formally disbarred from practicing law in New York. Anyone have a comment?

Elie Honig:

I have a question for you, Preet.

Preet Bharara:

Yes, Elie.

Elie Honig:

Do they take down Rudy’s portrait at the SDNY now?

Preet Bharara:

That is a great question. So for people who don’t know, and I don’t know if it’s still the case because they’ve moved temporarily because the original building, 1 Saint Andrews Plaza, is being renovated. But on the 8th floor of one 1 Saint Andrews Plaza, for many, many, many years, in the hallway leading to the Office of the US Attorney, is a wall of portraits of all the people who had served as US attorney. Not all the way back to the beginning of time, but going back quite a bit. I don’t know. That’s a great question. Joyce, you were a US Attorney. Would you remove the portrait of a disbarred former US Attorney?

Joyce Vance:

I think I would turn it face-in to the wall.

Preet Bharara:

You know what Mrs. Alito would do? She would turn it upside down.

Elie Honig:

More options than I thought of here.

Rachel Barkow:

Yeah. I think you leave it up there like the portrait of Justice Taney that hangs in the Supreme Court as a reminder of the darkest days of the office.

Preet Bharara:

The professor coming in with the academic and intellectual jurisprudential approach. Well, glad that we’re all assembled. Let’s get right into it. I’m going to do my best to describe the main holding of Trump v United States, and then we’ll take it from there. So in the immediate moments after the opinion dropped and the main opinion, the majority opinion is 43 pages and there’s concurrences and there’s dissent. So it goes on for a while. There’s that weird moment on cable television and on the internet when people don’t really fully understand what it means.

And I don’t know if you folks had the same experience, but in the opening moments when people are reading the syllabus of the case and describing the top line, it didn’t seem so bad, it didn’t seem so crazy. In essence, Justice Roberts writing in a 6-3 opinion, writing for a 6-3 court, the majority opinion, there are basically three categories of circumstances, right? One is where the president arguably has your core duties implicated and has conclusive and preclusive authority. With respect to those things that are core to a president’s duties and obligations and responsibilities, there’s absolute immunity, right?

Second, where there are official duties or there are official actions being taken that are not core or conclusive and preclusive, whatever that means, but where the president may, for example, share responsibility and authority with the Congress, with the legislative branch. Those may be immune from criminal prosecution, but there is a presumption, and we can talk about how strong that presumption is.

There’s a presumption of immunity, but that can be overcome by prosecutors arguing in court. And then third, there are some things that presidents do that are purely personal and unofficial, and for those things, there’s no immunity at all. That, on its face, in the first five minutes when people were talking about it, didn’t seem nutso to me. What’s wrong with that tripartite rendering in the decision?

Elie Honig:

So Preet, I’ll jump in. That all was as I expected and as I think a lot of people who are prognosticating expected that they would establish a rule for criminal immunity, that it would be more or less tied to official or unofficial acts or in or out of the scope of the job. But what followed that on closer reading was, for me, three oh-my-goodness revelations that went beyond that, which we can break down, but I’ll tick them off real quick.

One, not a surprise, but important, they made clear that once the case goes down to the District Court and Judge Chutkan does her fact finding, that, in itself, is appealable before trial, which means no chance this case, 0% this case gets tried before the 2024 trial. The second one was just-

Preet Bharara:

2024 election.

Elie Honig:

I’m sorry, yeah, the 2024 election. I still have that psychological thing, like the big crucible I still think of as a trial from our prosecutor-

Preet Bharara:

It’s going to be a trial and also, dad joke coming, tribulation.

Joyce Vance:

Ooh.

Elie Honig:

Oh, there you go. The second oh-my-goodness was just how broad the Court describes the outer perimeter, and I’ll leave that out there for us to discuss. But the third one, the one that blew me away was that a prosecutor cannot even… Forget about charging a president for an official act. You cannot even introduce any evidence of an official act as part of your trial to explain the narrative, to give the timeline to establish motive or intent. And that’s what Justice Barrett separated herself from the main majority in her concurrence on. She thought that was too far. That one really surprised me and that has major implications for how-

Preet Bharara:

I think that’ll become more readily apparent and understandable when we lay more groundwork. Joyce, Rachel, do you have a thought of just, overall, your reaction before we break it down?

Rachel Barkow:

Yeah. I can jump in a little bit on the core decision. So the idea that there would be core things subject to absolute immunity, the Court didn’t need to decide that at all because that wasn’t an issue in this case. We’re talking about things that would be more outer perimeter stuff. So I think the Court was reaching out to be broader in its pronouncement in this case than it had to be, which contradicts some of the things it says in the opinion about how it doesn’t want to posit what happens in this case in particular ways, but then-

Preet Bharara:

Can we pause on that for a second, Rachel?

Rachel Barkow:

Yeah.

Preet Bharara:

So that people understand there’s only one set of things that they decided with respect to the indictment in this matter was core, and that was conversations that the president had at the time with members of the Justice Department seeking to interfere in Georgia. All those kinds of things, they decided, or Roberts, for the majority, decided that’s core to the president’s responsibilities. And so no way, no how can you prosecute based on those allegations. And the rest of it they’re sending back to the lower court. So do you want to address the issue of the DOJ conversations as being core somehow?

Rachel Barkow:

Yeah. So this is the part I mean about it going broader than it had to. So in saying that there’s this core group of presidential powers that get absolute immunity, you might think of those as being things like ordering the Military to go abroad and using the Commander in Chief powers, making those kinds of Military decisions, or the power to veto legislation, or maybe the pardon power as part of that.

But the Court says in the opinion, “The core powers also include this idea that the president has to take care that the laws are faithfully executed,” which is language from the Constitution that a certain group of conservative scholars reads in the most robust way humanly imaginable, such that core presidential powers basically means controlling the entire executive branch of government.

And it’s from that one that he gets the idea that any conversation he has with Department of Justice officials fall into this core group of protected activity that gets absolute immunity. So no matter what insane conversation he would have with his Attorney General, that would be something that could never be the basis for a criminal prosecution. And as Elie alluded to, you couldn’t even use that conversation as evidence related to unofficial acts that he takes. If he says to his AG, “Hey AG, I’m thinking of murdering my wife,” and then there’s a case against him for murdering his wife-

Preet Bharara:

If Trump would say, “Take my wife please,” and it would be understood.

Rachel Barkow:

But the crazy thing about that is that if you could bring a prosecution for murdering the wife, that’s unofficial act, but you couldn’t use evidence of the conversation with the Attorney General based on the opinion that the Supreme Court wrote. So it’s cabining off this core executive activity that is not only immune from criminal prosecution but exists in this airtight bubble that we can never know about or use in cases going forward.

And I agree with Elie. I think that was an extraordinarily overaggressive, ridiculous policy-wise, no basis in constitutional text history or anything else. That’s just the Court reaching out to decide a very sweeping thing that is going to have enormous ramifications going forward for the country.

Preet Bharara:

Joyce, you and I were texting before today, between yesterday and today. I wonder what you think of this. One of the implications of this core area that we’ve been talking about is conversations with people within the administration that the president has are immune. Based on that and other factors, would this decision render Richard Nixon immune based on what he did in Watergate?

Joyce Vance:

Yeah. That was one of the first thoughts that I had as this was coming down, right? If Richard Nixon had only known, he would’ve never left office. Rachel’s hypothetical, by the way, is one I’ve been playing with, although, Rachel, mine isn’t nearly as much fun as yours. I was imagining the president goes to the Attorney General and says, “Hey, let’s rob a bank together.”

But it’s that same notion of how artificial this is and how hard this Court worked despite, at the end of his opinion, the Chief Justice spends some time saying, “We’re not focusing on the individual involved.” He doesn’t really even say his name. “We’re writing an opinion for the future and talking about future presidents and not focused on current personalities because that would be bad or dangerous,” or whatever the argument that he makes is.

But in reality, it’s hard to avoid the impression that they were doing everything they could to make sure that there wouldn’t be a timely prosecution of Donald Trump. And I don’t say that lightly, and I don’t particularly enjoy saying that because I’m hardwired to be deeply respectful of all courts, but especially of the Supreme Court. But reading this one was really troublesome, and I’ll tell you Preet, I just want to quickly go back to your first question, “When did you know that this case was going to be a problem?”

And for me, it was on page six. I’m reading through real fast. And the Court says, “We conclude that under our constitutional structure of separated powers, the nature of presidential power requires that a former president have some immunity from criminal prosecution for official acts during his tenure in office.” And I write, “I’m okay through here,” because I am. Clearly, there should be some scope of immunity. Then the next sentence, “At least with respect to the president’s exercise of his core constitutional powers, this immunity must be absolute.”

And I write, “This is bad.” And I mean this is bad because I have in my mind this notion of a president who murders or does something horrible, like starting an insurrection, and he shouldn’t have absolute immunity. There has to be some mechanism. But it’s the final sentence in the paragraph where I realize we’re in big trouble. The Chief Justice writes, “As for his remaining official actions, he is also entitled to immunity.”

So I suddenly realized that for this entire scope of official actions, there will be immunity. I write in the margin, by the way, “This is abomination.” Apparently, I’m never one for hyperbole. But there is a sense early on in this case that the Court is going to do exactly what it did, that it’s going to define immunity very broadly by defining official acts very broadly far beyond what we would commonly understand that to mean.

Preet Bharara:

I want to drill down on another hypothetical for the group and talk about some controversy that has erupted since this decision because people are reading it differently. So at oral argument, people will remember, there was a discussion of the hypothetical in which a sitting president views his political rival as a threat to national security or to the country, and orders SEAL Team 6 to assassinate his political rival. And that hypothetical is not addressed directly in the majority opinion.

I’m wondering if this group thinks, based on the definition of official act and based on the bar against delving into motivations on the part of the president engaging in some core conduct, which is the protection of the national security, however the president might define that or interpret that, would this opinion allow that? And to the extent people are saying it would, I’m seeing Trump supporters and conservative folks saying that’s a garbage reading of the majority opinion that’s not within the core power. What’s the right way to read it with respect to that extreme hypothetical?

Rachel Barkow:

So can I say something on that?

Preet Bharara:

Yeah.

Rachel Barkow:

Because I think it’s telling that that is a hypothetical that is in the dissent. Justice Sotomayor has a list of things that she says will be immune after the majority’s decision becomes the law, and she has that as one of the things. She has a list of things that president could do: accept a bribe for a pardon, immune; order the SEAL Team to assassinate arrival, immune. And then she has immune, immune, immune.

And what I think is telling is based on Supreme Court practice, when a dissent raises a point like that, if that’s not right, the majority would clearly and expressly say so. That’s the easiest thing in the world to do in the majority-

Preet Bharara:

Because they do it, and we’ll get to it. The majority does it with respect to a dispute about bribery and the difficulty of proving bribery.

Rachel Barkow:

Right.

Preet Bharara:

I should mention to the audience in case they don’t otherwise know. Rachel, you clerked on the Supreme Court for Justice Scalia, so you have some sense of how these things work. So is the only explanation for a non-response that they accede to the point?

Rachel Barkow:

I believe so. I think that silence speaks volumes because the most persuasive thing you’d want to say in response to something like that is, “Don’t be ridiculous. Nothing we’ve said here would authorize that.” And he doesn’t ever say that. He says, “The dissent is engaged in ‘fearmongering.'” But he never actually addresses that specific line of attack. And I think that’s because that line of attack is correct and that is also how I read the majority opinion.

It falls into that core power. It would be an exercise of Commander in Chief powers to give a Military order, and then that order gets carried out if the Military leadership doesn’t say no and they actually go ahead and do it. I see no basis under the Supreme Court majority’s opinion for bringing any kind of criminal action on the basis of that, given everything they said about core powers and absolute immunity.

Preet Bharara:

I’ll be right back with Joyce, Rachel and Elie after this. Does anything stop the president, and let’s assume the hypothetical of President Trump regaining power through the election in November, not ordering SEAL Team 6 on a political rival, but ordering the FBI to use some pretextual basis, material witness warrant or something else to round up people he doesn’t like or political adversaries of his who he will say harm democracy or trying to undermine democracy and the government and put them in jail while those things are litigated? Can he bear any criminal responsibility for undertaking that roundup under this opinion? Anyone?

Elie Honig:

It’s a great question. I was going to first answer with the obvious answer, which is there’s all the other guardrails which we’re well aware of, prosecutorial discretion, resignations, grand juries, et cetera. But I get your question, is another one of these confounding hypotheticals along with the ones that Justice Sotomayor poses. I believe that if the SEAL Team 6 hypothetical were to come up, certainly, Justice Sotomayor would conclude that’s not an official act. I think I would conclude that’s certainly not an official act.

But Rachel makes a good point. If you take the letter, the decision here and motivation doesn’t matter, you’re just looking at the means and mechanisms. What circle of power is the president operating in here? There could be an argument for it, and I do think that’s an interesting part, maybe a problematic part of this decision throughout. The focus throughout in deciding whether something’s an official act or not is always on who is participating in the conversation, but not what is the substance of the conversation.

I expected it to be quite simply, if it has to do with government, with legitimate exercise of government, it’s covered. And if it does not have to do with legitimate exercise of government, it’s not covered. Instead, the question is really just who’s talking to who? If the president’s talking to the AG, almost certainly covered. If the president’s doing his Military thing as Commander in Chief, almost certainly covered. And that, I think, leads us to some of these really difficult, maybe problematic results that come out of these hypotheticals.

Preet Bharara:

Yeah. Part of the problem is this line in the opinion I’m reading from the syllabus. We’ve already said this part, “In dividing official from unofficial conduct, courts may not inquire into the president’s motives,” right? Problematic for many reasons. But then they also write, “Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law.”

So just because you were able to allege in good faith and with great power and persuasiveness that an act violated a crime, that by itself, doesn’t take it into the land of unofficial conduct. Isn’t that circular? Am I missing something?

Joyce Vance:

No, I think you’re dead on the money. I always thought about the distinction between unofficial and official conduct as being the distinction between acting as President Trump and acting as Candidate Trump. And the Court just doesn’t see it that way. Shame on them for not adopting my views.

But they let Trump get away with a lot of what I would call campaign conduct under the rubric of either who he’s having the conversations with or its position within the federal government. And I think that’s an awfully strange construct for them to have come up with here.

Rachel Barkow:

And I’ll just add that I don’t feel that there are that many other guardrails in place for the scenario of rounding up your enemies and trying to get them prosecuted. Because I think the guardrails in the past that we’ve always relied upon were these decent public servants, who take an oath to the Constitution. And at the same time that the Supreme Court decision is being handed down, there’s an entire project by Heritage and the Trump campaign, Project 2025, which is to install loyalists into every significant one of these positions.

People who swear their loyalty to Trump, not to the Constitution. They’re looking for people whose primary characteristic is that they’re going to do what Donald Trump asked them to do. So if we would normally think about those guardrails, I think they’re all coming down because the architecture that is being put in place right now is to have a whole bunch of people who just say yes to whatever he asked for. And so we won’t have those guardrails either.

Joyce Vance:

And Rachel, I think that’s dead on the money, particularly because Project 2025 website there for everybody to read, and I encourage people to do it. It talks about, “This will begin on day one,” right? The implementation is over the first 180 days, and it’s not just the political ranks at the Justice Department and other federal agencies, it’s the career ranks too because they have this plan to change how the federal bureaucracy works, in essence, inserting loyalty tests for career employees. This stuff, I think, removes all of Elie’s guardrails.

Preet Bharara:

Can we talk about a few more hypotheticals that are not such hypotheticals? On the issue of first, the self-pardon, as you pointed also, our friend, Rachel, has some expertise in pardon power. Am I correct that this opinion, the majority opinion, basically green lights the self-pardon by President Trump or any other president of his own potential misconduct?

Rachel Barkow:

So that I’m not as sure of because there is language in this opinion that says the courts still say the scope of what presidential authority is at the outset. And then after they have decided that yes, the president has the authority to do X, it falls into this immunity rubric. But the question of whether self-pardons are part of the pardon power has not been litigated. And so there is still an opening for the Supreme Court to say that’s not part of the pardon power. And if it’s therefore not part of the pardon power, then it wouldn’t be subject to this kind of immunity decision. Now, he could give-

Preet Bharara:

Right. The motivation is not necessary to know.

Rachel Barkow:

Right. It doesn’t matter what the motive is. That’s just a pure jurisdictional type question to say…

Preet Bharara:

Let’s talk about a different scenario, which is also discussed and argued about back and forth between the competing opinions. If someone bribes President Trump or any president in exchange for a pardon, can he be criminally responsible for that or is he immune? And if he’s potentially criminally responsible given the other part of the holding about motivation and evidence, how would the prosecution prove it?

Rachel Barkow:

See, I think that is a very difficult case to bring now, in light of the fact that they said you can’t use any… You can say yes, this pardon took place, but you can’t bring in-

Preet Bharara:

Right. That’s the back and forth that Robert seems to have engaged in with the dissent.

Rachel Barkow:

Right. And that’s where they lost Justice Barrett. So it’s not like they lost a liberal here. This is a 5-4 on this one. And the idea is it’d be very hard, I think, to make out that quid pro quo case. And by the way, there’s another case this term that says if it’s a gratuity, it’s not covered either.

Preet Bharara:

So you need to have some information about when the official action happened compared to the money paid, right? Because the Court is now held in a different opinion, as you just mentioned, that money paid after the official action is just like a tip.

Rachel Barkow:

Right. If you liked your service by the president today, you can leave 20, 22 or 24%

Joyce Vance:

All in gold bullion, please.

Preet Bharara:

Yeah. Well, that’s Menendez.

Rachel Barkow:

Well, I will just say on the pardon front, I think that that one, unlike the self-pardon, but the idea, let’s say he decides on day one, which he’s alluded to the fact that he’s interested in something like this, he’s going to pardon all the January 6 people. And then afterwards, he fundraises from them, he gets money from them.

They’re all pouring in dollars into his campaign. I don’t see how you successfully prosecute that. I’m going to defer to the people who has prosecutorial experience here, which isn’t me, but I would think that’s a really hard case to make when you’re not allowed to use any evidence around the giving of the pardon itself.

Preet Bharara:

What’s the logic of not being able to use the evidence? We talked about what was necessary and not necessary to decide including the core category idea. But this step too far, do you think it was an error? Do you think they’re trying to protect something? Because as Elie mentioned at the very outset of the program, that’s one of the oddest things about the opinion. Is there any other explanation you folks have about what the hell was going on in their minds?

Joyce Vance:

Roberts is pretty explicit about this. He’s protecting the imperial presidency, right? And he says that to provide immunity from prosecution but to permit the evidence to be used would really make a mockery of the whole notion of making sure that the presidency, the president was free from interference by stuff that might make him look over his shoulder and say, “Gee, maybe I shouldn’t do that because it might be a crime.”

God forbid, according to Roberts, that our president should ever do that. We don’t want them to feel constrained in any way by this notion of what’s legal and what isn’t, like mere mortals are. And so this evidentiary argument, which is, I think, really surprising, right? We have a criminal justice system where you can use uncharged conduct to prove up a whole hoard of things at trial, commonly used for motive, for intent to prove identity, all sorts of things.

But now there’s a special carve-out just for presidents, and I think this is one of the most shocking parts of the opinion. As you point out, Justice Barrett doesn’t join, making it 5-4, which means that Sam Alito is the key vote on this one. And Rachel may have thoughts about whether he or Justice Thomas should have recused on this case, but the majority gets pretty slim here.

Preet Bharara:

Can I sketch out a scenario to explain maybe or predict maybe how this would work in practice? So it won’t necessarily be the case that Trump, if he’s reelected, wakes up one morning and decides to round up his political foes or pardon somebody in exchange for contribution or whatever the case may be. What he may do is ask his handpicked Attorney General to ask his handpicked Assistant Attorney General of the Office of Legal Counsel at the Justice Department to do a memo, to do an opinion.

In light of this case, this immunity case, is it appropriate or proper and lawful? And does the president have criminal immunity from any action relating to X, Y or Z, any of these horrifying scenarios we talked about? And if it is the case that the Office of Legal Counsel writes a pliant and compliant opinion endorsing, based on this case and others, that the president is fully free to do those things, doesn’t that provide an extra entire layer of immunity in practice from criminal prosecution later because the president can say he relied on counsel?

Rachel Barkow:

I think that’s true, and I think I’m glad you brought up the Office of Legal Counsel because one thing I did want to highlight about this case is we have way too many people on the Supreme Court who served in that office and who served in executive branch positions where basically, their whole job was to worship the president and think about presidential power.

And I think that’s how you end up with a decision like this. These are people, almost from birth or right after they graduated from law school, who just made it their life to serve executive power. And I actually think it’s quite telling-

Preet Bharara:

Yeah. Roberts did, right?

Rachel Barkow:

Yeah.

Preet Bharara:

Kavanaugh.

Rachel Barkow:

Roberts, Alito, Gorsuch, Kavanaugh, they all worked for presidents in important executive positions. And so the idea of the president as the most important actor in government and thinking of the president needing energy and dispatch and secrecy, et cetera, that is what they have been nursed on from the very beginning of their legal careers. And I do think it’s interesting and telling that the conservative who broke ranks from that is the one person who really didn’t have that kind of experience. That was not Justice Barrett’s experience.

And so she saw this for what it is, which is loony that how could you possibly need to carve out that much immunity. Not even allow it to be used as evidence, is a little nuts. And I think the way you think of it as not nuts is if you spent your life basically focused on what can I do to make the executive the president as powerful as humanly possible?

And so I do agree with you that they’ll definitely put more people in OLC just like those justices. That person will probably then become a justice, whoever writes that memo. They’ll probably be next in line when the next spot opens up. And I think this is how you create an architecture of an insane quantity of presidential power, is you have those kind of people, you put them on the court and they issue decisions like this.

Elie Honig:

One question I had before this opinion came out is, is it going to apply to only the president or to all federal executive branch employees? If we look at civil immunity, which has been around since 1982, Nixon v Fitzgerald, we all, I think at some point, benefited from civil immunity in our role as DOJ employees. We couldn’t get sued by people who he subpoenaed because we subpoenaed them or people we locked up from prison.

Otherwise, I’m sure we all would’ve been sued many, many times. And when we were, they were quickly dismissed. I was halfway expecting this opinion to apply to all federal, at least executive branch employees, so they can’t be charged criminally for what they do as a prosecutor or something. But the Supreme Court chose to make it, for now at least, apply only to the president. I could definitely foresee a day where there are charges brought against some other federal official, and that person will argue for an extension of this case.

Preet Bharara:

Yeah. So we talked a lot about the core category where there’s absolute immunity. Then there’s this other more murky area, although I’m not sure how murky it is, where the Court said, “We serve the role of final review, not first view.” And so with respect to the case at hand before Judge Chutkan in Washington DC, with respect to all this other stuff, we’re sending it back to her to make a determination.

And we’re going to give her some guidance. I don’t know how good that guidance is. With respect to all these things, including the fake electors and other bits of conduct outside of conversations with the DOJ, what kind of guidance does she have? And what is our expectation of how much she will, as an initial matter, be forced to gut Jack Smith’s case in DC? And ultimately, what might be gutted if it comes back to the Supreme Court?

Elie Honig:

So I think if you do this mental exercise, I can see a world where the end result of this process, after Judge Chutkan applies this new case and after it goes back through the appellate process, back up potentially to the Supreme Court where Jack Smith is not left with enough even to proceed on his case. Because let’s take the first category we’ve been talking about, the automatic core duties that applies, the Supreme Court says the conversations, interactions between the president and DOJ.

Okay. So pull out the entire piece and remember, can’t even use it as evidence. Pull out everything from this case having to do with Jeffrey Clark and Trump trying to get DOJ to investigate fraud. And Jeffrey Rosen, we all remember this whole sequence. That’s out now. If we get into this middle category that you’re talking about now, Preet, the presumptively immune, the Court specifies that conversations between the president and the VP are presumptively… Not automatically, but presumptively immune. But they’re hint, hint, wink, winking the judge like we expect that to be out of this case probably.

So there goes Trump’s whole effort to pressure Mike Pence. And another thing that the Supreme Court singles out and says probably not going to be good is his speech, that he has very broad rights to make speeches and to engage in speeches as president. So there goes, likely, your Ellipse speech on January 6th. Take those things out and this is a skeleton of an indictment that I’m not sure can even make it to trial.

Rachel Barkow:

I was just going to add the one thing from the Barrett dissent. Or not dissent, but her concurrence on this point, which is, she says, “It’s weird that the majority points out the things that are going to be immune but doesn’t identify anything that is fair game.” And she uses the example where she says, “The indictment alleges that the president asked the Arizona House Speaker to call the legislature into session to hold a hearing about election fraud claims.” And she says, “The president has no authority over state legislatures or their leadership. So it’s hard to see how prosecuting him for crimes committed when dealing with that would unconstitutionally intrude on executive power.”

So that could be something that could remain in the Jack Smith prosecution. But it’s interesting that she said that and the majority did not say that. Because again, I would think if they wanted to write an opinion where they’re not being accused of looking like they’re wholly in the tank for Trump, that they might want to reach out for something that is still viable in this case. And she did that. She did that. She had an example of that, and they don’t say anything about that. They don’t take her up on that offer to show, “Look, we are not saying everything’s off the table,” which makes me wonder if there’s actually not five justices to agree that even something like that could be part of a case.

Preet Bharara:

But how’s this going to play out as a pragmatic matter? So it goes back to Judge Chutkan. She can decide at any moment going forward to have a hearing, some proceeding where the parties will have an opportunity to argue that based on this sweeping immunity decision, these allegations that the Trump team will argue need to go, maybe they’ll argue more forcefully and more expansively than Elie just did even.

And the government will say, “Well, no, we can see that these three counts have to go or these seven allegations have to go, but that we have an argument in favor of overcoming the presumption on these other things.” And they have a back and forth and they argue about it, and it’s a tough argument. And then Judge Chutkan splits the baby in some fashion. At that moment, and that’s months from now probably… Not weeks, probably months from now. Then the Trump team appeals that. Doesn’t it go right back up the chain for another several months of proceedings before it gets to the Supreme Court again and before there’s a trial?

Joyce Vance:

Well, it does and the Court makes that clear. I almost read the opinion as a little aside to Judge Chutkan where they tell her, “Hey, listen-

Preet Bharara:

Yeah, we’ll see you later.

Joyce Vance:

Yeah. “You’re our fact-finder. Take that black robe off. You have a role here, and that role is to get us some facts.” And they actually chastise her a little bit for not making these distinctions between official and unofficial acts in the first go round. And so they suggest that that’s what they would like to see out of her this go round before they get back and take a stab at it.

And look, to the point Rachel was making, her surprise that the court didn’t try to do something so that they didn’t look totally in the tank for Trump, well, subtext here, they look whether they are or not to be completely in the tank for Trump. And given the way they analyze a lot of these issues around whether something is official or unofficial, for instance, this very broad reading they give to presidential speech, that could mean that the speech on the Ellipse is off limits for Jack Smith as an explainer for everything that comes afterwards.

The notion that they will ultimately decide for themselves whether or not Jack Smith can move forward on any conduct or use any evidence, I think is something that means we should pay attention to, Elie, when he says, “There might be nothing left of this case when all is said and done.”

Elie Honig:

And can I just add to that? Judge Chutkan made a tactical error here. She should have been able to see around two or three corners or maybe one or two corners. And as proof of that, I pointed it out in a CAFE brief shortly after this happened, and I’m no soothsayer. When Judge Chutkan issued her opinion on Donald Trump’s immunity motion, all she said was, “There’s no such thing as immunity across the board immunity.”

And I thought, “Well that’s good. That’s part A.” Now, let me turn the page to part B where she says, “And even if there was, I hereby find that A, B and C are in and maybe D is out.” That would’ve saved a whole round of this because what the Court would’ve been reviewing now would’ve been her prior determinations. So I, at the time, said, “Why is she not deciding this?”

And in fact, the Court of Appeals tried to back-cover it for her. They said, “Well, we find that A, there’s no immunity. B, even if there is, he’s outside of it.” And there was some C. I forget what it is. But I think they rejected Trump’s impeachment argument. But why would Judge Chutkan not have done the same thing that federal courts do when someone’s trying to remove a case, when the Fulton County defendants, Mark Meadows and Jeffrey Clark, wanted to get their cases moved over to federal court?

The test is similar. Does the charge relate to something within the scope of the job? And the Federal Judge there in Georgia, I think his name is Steven Jones, held a little hearing. And he said, “Well, we’ve had our hearing. Mark Meadows testified, and I find that he was outside the scope. He loses.” If Judge Chutkan had taken a week or two weeks and done that, it would’ve saved us a whole round of appeals and it would’ve set this case on a much more plausible, much more quick road to trial. So I think that was not out of any bad faith on her part, but I think it was an oversight.

Preet Bharara:

So I’d like to get the opinion of this esteemed panel on how this opinion affects not just the DC case, which we’ve been discussing at length, but the other three criminal cases as well, including the one in Manhattan. Before I do that, Rachel, do you have a thought on Justice Thomas’s concurrence here?

Rachel Barkow:

Well, he wins the Chutzpah prize for: on his own, not joined by anyone else, just deciding, “Hey, I want to look into whether we could even have a special counsel investigating the president at all and deciding, no, we cannot, that that is unconstitutional. It’s just an egregious act of-

Preet Bharara:

Was that briefed?

Joyce Vance:

No.

Rachel Barkow:

I don’t think so.

Joyce Vance:

It was not. It was briefly raised in oral argument but not briefed as part of the case.

Rachel Barkow:

And it’s a live issue in the case before Judge Cannon though in-

Joyce Vance:

Well, you know she’s going to cite that opinion, right?

Rachel Barkow:

Yes.

Joyce Vance:

We’ll see that again.

Rachel Barkow:

And that’s what it felt like to me. It felt like, “Hey, Judge Cannon, just in case your hands are full and you don’t have time to research this issue, allow me to go ahead and write it for you so that it’s pre-decided, and you can just use this.”

Elie Honig:

This is Justice Thomas just going like, “You know what else is on my mind?” What?

Preet Bharara:

Get off my lawn.

Elie Honig:

Yeah, right. It’s airing of grievances.

Preet Bharara:

It’s the get-off-my-lawn concurrence. Can I ask a dumb question, a dumb law student question for the group? And if the professor wants to answer it… Well, actually everyone here is a professor of some sort. I think only one of us has tenured, by the way.

Elie Honig:

I’m not really a… I’m a teacher.

Preet Bharara:

What’s the value of Judge Cannon if she gets to it citing a Supreme Court concurrence on a point with which no other justice agreed?

Rachel Barkow:

It has no precedential value, no authoritative value. So it would be like when you cite anything as just persuasion but not as authority. But I think she would certainly be able to borrow from the legal analysis. He went through a lot of different sources and constitutional arguments to get to his results.

So he did legal legwork in much the same way as a conservative think tank might do. And so that’s just all out there for the taking. It doesn’t decide the matter. It doesn’t have that kind of authority of a five justice vote, but it would be helpful to her, I’m sure.

Preet Bharara:

Right. You should get off my lawn because the lawn is mine.

Elie Honig:

And some other stray thoughts I had.

Preet Bharara:

And trampling was frowned upon in the history and tradition of the country at the founding.

Joyce Vance:

Justice Thomas is our Circuit Justice in the 11th Circuit. And of course, personality shouldn’t play any role in cases, but when Judge Cannon cites to that concurrence, which no one else joined, and then it goes up to Atlanta, we’re talking about judges who have close relationships with the justice, who is the decider for our circuit.

And I worry, and I hope I’m worrying for nothing that we are in a moment as we get closer to the election where there may be some judges who aren’t setting aside their futures and their careers and who are contemplating not wanting to be on Donald Trump’s bad side.

I’ve always felt very good about this circuit, was very certain that they would rule against Judge Cannon just like they did, just as quickly as they did. I have to confess, I’m growing more and more concerned the closer we get to this election.

Preet Bharara:

Let’s talk about the impact on the three other cases. So as everyone in America and in the world knows, Donald Trump was convicted. There was an appeal that will be filed, and that’ll be addressed by the Appellate Court in New York. But there’s a motion to set aside the verdict. I don’t think we know the substance of it fully yet based on this immunity decision. What’s the realistic impact of this decision on Trump’s conviction at the Manhattan DA’s office case?

Elie Honig:

Well, I’ll take a crack at that. It gives him a shot, I think a long shot, but it certainly gives him a basis of-

Preet Bharara:

What’s the argument? I thought it’s already been adjudicated, that the things he did in that case, the payoff and the fabrication of records and all of that was personal in nature.

Elie Honig:

Right. Here’s what I think the argument… Well, first of all, it’s substantial enough that it’s already upset the sentencing date, almost certainly, right? The DA has agreed that the sentencing date should be pushed back.

Preet Bharara:

Actually, guess what, Elie? Breaking news, the criminal sentencing of Donald Trump in New York has already been postponed to September 18th. So there you go.

Elie Honig:

Trump’s team is going to argue that some of the evidence, a small portion, 5%, 10%, had to do with Trump’s conduct while he was in office. He, for example, had meetings and conversations with Hope Hicks, who was his comms director in the White House. He’s also argued one of Trump’s attorneys was on air right before my segment last night on CNN and said, “Well, he used the White House Twitter feed to manage his public messaging.” That does not convince me at all. And I think what Judge Merchan will say is all of this had to do with payoffs, personal payoffs to a porn star and therefore not official action. But to go back to a point we were discussing-

Preet Bharara:

And it was already adjudicated, as such, when they tried to remove it to Federal Court, was it not?

Elie Honig:

Right. Yeah, by Judge Hellerstein. I think that’s right. But to go back to Rachel’s description, all of our description of yesterday’s Supreme Court ruling, if all you do is put aside any question about motive and just look at who’s talking to who, while just in a vacuum, a president having a strategic conversation with his comms director about how do we message X to the public, you could arguably square peg into a round… force it into what the Supreme Court came down with yesterday.

Now, I don’t think this argument’s going to succeed in front of Judge Merchan or probably the New York Appellate Courts, the state Appellate Courts, but you know who’s lurking over all of this, and if they want to take an aggressive reading of their own decision from yesterday. Again, I don’t think it’s likely Trump gets his conviction overturned, ultimately, as a result of this, but it gives him a quiver, an arrow, a quiver. You know what I mean, a thing to shoot out.

Preet Bharara:

Well, it makes me quiver.

Elie Honig:

I’m not an archer.

Preet Bharara:

Anyone else on the Manhattan case?

Joyce Vance:

So look, I will say just real quickly, I think that the DA’s office is doing the right thing here. They agreed that Trump could have until the 10th, which is the day before sentencing was supposed to take place to sit out their argument. They’ve asked for two weeks to respond. They’re treating it seriously. There will be a good record so that when this ultimately does go to that ivory tower in Washington, at least it’ll be clear what the arguments below were and what the decision is based on.

Preet Bharara:

More from our conversation after this. Let’s stick with State Court proceedings. In Georgia, the works have already been gummed up because of all sorts of other things. How’s this going to affect that? Noting, by the way, that some of the allegations in the conduct and question in the Georgia case overlap and are aligned with some of the conduct and allegations in the DC case that we’ve been talking about this entire program.

Joyce Vance:

Well, look, I think a lot of this comes down in the first instance to how the judge views it. Because one feature of Trump versus United States is that there is a lot of discretion invested in judges to make these distinctions between official and unofficial conduct. And something we have the specter of is different judges making different rulings.

But at least in the first instance, and the majority opinion goes to a lot of trouble to talk about the complexity of these arguments and how official and unofficial conduct might be intertangled and courts have to sort that out. And nowhere is that a bigger problem than in the RICO indictment that just contains so much information, so many different defendants.

And so I think we’re looking at a lengthy process in front of the trial judge here, although, at this moment, he lacks jurisdiction to move forward because the issue of whether or not Fani Willis can continue to participate and the case is still on appeal.

Preet Bharara:

And with respect to the Florida case, I would expect the argument for Jack Smith to be, “Well, the crimes are charged in terms of timing and the sequence against a private citizen, who didn’t have presidential prerogatives when he retained and continued to hold onto and lie about and obstruct with respect to these sensitive national security documents.” Does that win the day?

Rachel Barkow:

Isn’t part of what’s at issue in that case is if he had the authority to declare everything declassified and we’re not allowed to look into his motive? That seems to fall into that absolute immunity realm. So I think that complicates things.

Preet Bharara:

But that’s crazy. That means that if there’s any even remote ridiculous, outlandish, farfetched argument that you undertook some action as president that would excuse and justify an ongoing crime after you became a private citizen. That can be the basis for a full immunity defense, and no one can even question or ask, make inquiries about it. That would be the result of that posture, would it not?

Rachel Barkow:

I think so, and I think, sadly, that is what the majority opinion is saying.

Preet Bharara:

So is that your way of saying that the Mar-a-Lago case is done?

Rachel Barkow:

I think it’s tough.

Preet Bharara:

Anyone else want to give us some hope on the Mar-a-Lago case, at least going forward, and we have a day in court?

Rachel Barkow:

I should say, by the way, I didn’t have a lot of hope in that case anyways, given the judge. So maybe I’m the wrong person to ask.

Joyce Vance:

Maybe I’ll be a little bit more optimistic on this one. To the extent that much of this conduct happens after Trump leaves office, I think that you can make an argument. Judge Cannon will not make it, by the way. So the 11th Circuit is going to have to be the hope here.

But you can make an argument that the government has sufficient non-immunized evidence to move forward on these charges. Whether or not we’re going to actually see that argument surface is a different question, but I think that there’s a possibility.

Preet Bharara:

So I think we’re all still digesting the opinion, lots of different points of view. We’ll keep talking about it, but we should talk about a couple of these other cases I mentioned at the outset as well. There’s another criminal case called Fischer v United States, which is related to the question of what it means to obstruct or impede an official proceeding. Does anybody want to tell us what the holding of that case is?

Rachel Barkow:

Well, the Court decided in Fischer that given the language of the statute and the way it is constructed, that the statute is limited to impairing or obstructing documents, records, objects, tangible things, and doesn’t include the idea of interfering in some other catchall way.

Preet Bharara:

So it’s not a constitutional question like some of these other cases that we’ve been talking about. It’s strictly a matter of how you interpret a statute, correct?

Rachel Barkow:

Correct. I, for one, think the court got this one right, and I think that the concurring opinion by Justice Jackson is really a tour de force in terms of how she describes the legislative background of this statute, and why you wouldn’t want to read it as this broad, all-encompassing, 20-year maximum, you can be charged with this thing for impeding any kind of official proceeding. I was disappointed that nobody cited the rule of lenity because I think that would be really helpful here.

Preet Bharara:

Yeah, I was wondering that. Can you remind people what that is?

Rachel Barkow:

So the rule of lenity would say if you’re not sure what a statute means, it’s ambiguous that the tie goes to the defendant. And you take the more narrow interpretation. And I think this is a case that’s a perfect candidate for that, and weirdly, that is not what either the majority opinion or even Justice Jackson’s opinion says about this statute. They think it clearly doesn’t cover it given the language of the statute itself, and then if you take Justice Jackson’s opinion, also the legislative history and the background of it.

But I do think they get to the right result here. And I will just say I get it when you think about it in the context of January 6th, and definitely wanting to make sure that the people who engaged in that activity are appropriately charged. There’s a temptation to want to read this statute in a way that covers them, but you really need to think about how statutes apply in all cases and going forward.

And if you read that section about, “Otherwise obstruct, influence, or impede any official proceeding,” that is going to include any kind of protest activity, and protestors are of all political stripes and persuasions. And you have to imagine what this looks like in the hands of prosecutors who might want to really come down hard on other kinds of protest movements.

And I think you absolutely should take a narrow reading of this statute. If Congress disagrees and does want to create a really broad 20-year maximum that includes potentially prosecuting people for protest activities to stop a proceeding that they don’t like, Congress can go ahead and fix this if they think the Court got it wrong. But I actually think the Court got it right.

Preet Bharara:

We should point out, by the way, as you mentioned in passing that at least with respect to one of the justices, Justice Jackson joined the majority, and Justice Barrett joined the minority in this case. So this, unlike the immunity decision and many other decisions we’ve been talking about during this term, was not party line based on which president did the appointing.

Elie Honig:

Let me offer our listeners a little rule to go by, and this applies going back maybe 20 years. Anytime the Supreme Court grants cert and takes a case having to do with whether a criminal law, especially a corruption-related law, but whether a criminal law, generally, will be applied broadly or narrowly, bet on narrow, it almost always comes out narrow.

Preet Bharara:

Narrowly. We have direct experience with that.

Elie Honig:

Yes.

Preet Bharara:

Here’s a question I have, and I asked another guest in a different context this thing. And I don’t know that I come out the way you come out necessarily, Rachel, but I think it’s not a crazy decision. Either way is plausible how you define what “otherwise” means. Does “otherwise” mean there’s a whole slew of ways in which you can violate the statute that are different from what the language came before? Or is the language after “otherwise” cabined by what came before? Both of those are not crazy ways to interpret the statute.

And as the Court points out, the DC Circuit, when it went the other way, found that the word “otherwise” means that the provision unambiguously covers all forms of corrupt obstruction of an official proceeding. And I keep getting struck by case after case after case, including this one, where a court, sometimes even a divided court, finds that something is clear or something is unambiguous when the mere fact that if you assume people are acting in good faith, which is not always true, but you assume other judges and justices are acting in good faith and have legal training and are smart, and they think that there’s a reasonable interpretation to the contrary, how can you characterize your reading as unambiguous?

Rachel Barkow:

I think they do it because they do know the rule of lenity is lurking in the background. If it’s ambiguous, they really should-

Preet Bharara:

Can I say gaslighting?

Rachel Barkow:

Yes.

Preet Bharara:

It’s a little nuts, and it happens again and again and again. If and when we get to Chevron, there’s a line by Judge Roberts where he says something, “The APA makes clear that X, Y, and Z.” Well, for fricking 48 years, it wasn’t. So I don’t know. I always wonder how you explain that to lay people who have read the Dickens phrase that, “Sometimes the law is an ass,” isn’t it?

Elie Honig:

By the way, there would’ve been a way to write this statute clearly to land on the result where we now are, which is rather than, “Or otherwise, obstructs, impedes,” it would just be, “Or similarly obstructs, impedes,” right? Then we would’ve been like, “Oh, okay, I know what that means.” “Similarly” is a weird word to put in a statute, but “otherwise” is almost inherently ambiguous the way it’s used here.

Preet Bharara:

Can I ask you a question, Rachel? This is for you.

Rachel Barkow:

Yeah.

Preet Bharara:

How would Justice Scalia have decided this matter?

Rachel Barkow:

I would like to believe that he would have seen this as a rule of lenity case, because trivia, when he was on the Court, he was the justice most inclined to use the rule of lenity. And he read statutes in favor of criminal defendants using the rule of lenity more often than anybody else. So I think in this case, he would’ve been in with the majority, and I’d like to think he would’ve been the one who cited the rule of lenity here, but who knows?

Preet Bharara:

Look, we used to use… And I’m sure I’m speaking also for Joyce and for Elie. We made decisions, and obviously it’s not formally the rule of lenity that’s applying really as a legal doctrine. But in matters where it was a very close question, “Do you charge? Do you not charge?”

And some people thought it was too close for there to be a charge based on the evidence and the law, that you didn’t charge. The tie goes to the defendant in those cases. And I think that makes not just logical sense, but sense in terms of fairness and justice too. Again, I’m not pronouncing a view on this one.

Rachel Barkow:

And I’ll just add that I don’t think that this case will be devastating to any of the January 6th prosecutions. Unlike what we were talking about in terms of the aftermath of the Trump immunity case and prosecutions against him personally, the cases against the January 6th insurrectionists, there’s all kinds of other statutes to charge them with, very few of the cases involve just this as the charge. This is easily addressed.

Preet Bharara:

DOJ put out a whole press release. They did a lot more talking than they usually do in the wake of a Supreme Court decision. They put out a chart with statistics about how many people have been charged, how many people this decision affects. That’s some of how we know what the stats are. Does everyone else agree it’s not particularly devastating to the January 6th cases?

Joyce Vance:

Yeah, I think that’s right. The statistics were that there were fewer than 20 cases that were either standalone or defendants were still in custody.

Elie Honig:

It matters, but it doesn’t gut the January 6th prosecutions writ large.

Joyce Vance:

But the question about who it matters to is Donald Trump, and maybe the immunity decision knocks some of it out. But I think the question is whether he’s properly charged two counts, conspiracy count and a substantive count under this same statute in Jack Smith’s Washington indictment.

Rachel Barkow:

I think that’s okay though, Joyce, unless you disagree, because I think they have the argument there that he did tamper with evidence by trying to create a false set of electors, like paper documents with false electors on them. So meets the kind of document alteration requirement that the majority opinion says is required to charge under the statute.

Joyce Vance:

Yeah, I agree with that. And I think it also survives immunity, at least if you’re Justice Barrett, maybe she can drag some of her brethren along with her on that one. But still, in this environment, I think if you’re DOJ, you’ve got to sit down, reassess everything and make sure that that first blush impression really holds up.

There’s always been talk that Jack Smith could survive even a bad finding in this case for exactly the reason that you identify, that this is much closer to a documents’ alteration case, but there may be questions of how personally responsible Trump is for that.

Preet Bharara:

There’s another case called Loper Bright Enterprises versus Raimondo that overruled, and we’ll talk about what this means in a moment, a very famous case called Chevron, which had been decided in 1984. And in any other Supreme Court term or end of term, a podcast, a news broadcast, a newspaper would probably have led with this case, right? Because it undoes half a century of jurisprudence on generalized judicial deference to executive branch agencies. But because of the nature of the immunity decision and some of these other things, it’s a little bit flown under the radar, if that’s fair to say.

So by the way, I have a little bit of PTSD from Chevron because it was decided about five or six years before I started law school, and the Law Review writing competition, which was a brutal undertaking, presented a Chevron question. That’s why I’ve never practiced administrative law. I have, basically, for the last 40, 30-something years, shuddered every time someone mentioned Chevron. So maybe someone else wants to describe what Chevron was and how it was undone.

Elie Honig:

Chevron had it coming, Preet.

Preet Bharara:

Didn’t everyone have that Law Review writing experience where you lock yourself up somewhere for, I don’t know, it seemed like several weeks, but it was just a week?

Elie Honig:

It’s horrible. I had it.

Preet Bharara:

Anyway, it worked out.

Elie Honig:

Not for me.

Preet Bharara:

Oh, well, everything else worked out for you, Elie.

Elie Honig:

I think Rachel needs to start us on Chevron.

Rachel Barkow:

Okay. As the administrative law professor, I feel like I can. I better be able to handle this one. So Chevron was a case that decided that if you read a statute and it was ambiguous or there was a gap, that the agency’s interpretation of that ambiguity or it’s filling in of the gap would be acceptable as long as the agency’s interpretation of the statute was reasonable. It was a unanimous decision. It wasn’t a full complement of the court that had decided it because not all the justices participated in it.

But all the justices who had participated in the Chevron decision agreed that was correct. And the decision was not seen as a big deal. Justice Stevens wrote it. He didn’t think it was a big deal or he was changing the law or was anything significant. And it just became the way that you analyzed agency interpretations of statutes, particularly in the DC Circuit, which is the Court of Appeals that gets most agency challenges.

And it was accepted by Republicans and Democrats alike that that was just, of course, that’s what you would do because if a statute isn’t clear, you’re deciding between: do you go with the expert agency’s interpretation of how to interpret that statute? What makes most sense given the complicated area that the agency is in charge of? Or do you go with a court and its interpretation when the court doesn’t have any specialized information or knowledge or background?

And so this was just the accepted framework that everybody went along with for four decades. No one suggested there was anything wrong with this until moneyed conservative business interests decided that agencies were being too aggressive with their decisions in ways they did not like, and they decided that the answer was to kill Chevron. And they really went on a concerted campaign, and it started by getting judges and justices appointed who agreed that Chevron was bad.

So as we think of what Project 2025 means for the future and how it means when you set an agenda to pick people who are going to decide things a certain way, that was basically part of the plan for selecting judges. And this isn’t conspiracy-minded, this is all public information. We have the people on record saying, “Oh, yeah, we wanted to take down Chevron, and we picked people who agreed with us, and they’re proud of it and they’re running a victory lap right now.”

So that was very much the effort that was put in place, and you’re now seeing the fruit of that effort, which is, the Court decided to overrule it. And I will just say if you were upset by Dobbs and the fact that the Supreme Court overruled a 50-year-old precedent involving a constitutional right, you should be absolutely furious with this one, because this is a case where what the Court was doing was interpreting a statute. It was basically saying there’s this Administrative Procedure Act, and under the Administrative Procedure Act, that should be the standard that we review statutory interpretation.

If the Court was wrong about that, when it decided the Chevron case, Congress had 40 years to overrule it. It wasn’t like that was a constitutional decision. There was ample opportunity for Congress to say, “No, no, no, you have it all wrong. We don’t want it to be that way.” But Congress never did that. Congress accepted it, it reauthorized statutes that were given Chevron deference. It accepted all of it. So this was the Court being super aggressive and deciding to overrule its own statutory interpretation decision even though Congress agreed with it.

Preet Bharara:

By its silence.

Rachel Barkow:

And it’s outrageous. It is a truly outrageous decision by the Court, by a Court that claims to be, “We do balls and strikes.” And there’s a whole separate opinion by Justice Gorsuch talking about judicial humility, which, if you want to talk about gaslighting, then read a whole opinion about judicial humility and the context of a Court going out of its way to overrule a doctrine that never caused any problems that everybody used and relied upon, and that Congress accepted, and it used to be Republicans accepted it too.

Preet Bharara:

Yeah. I wanted to add that historical footnote, and I’m just going to quote a passage from SCOTUSblog. Amy Howe wrote the post. And it goes to a question I have about outcomes and how, if enough time goes by and a particular ruling begins to favor the other side of the ideological spectrum, people will walk back their principles and find some other pretextual way to undo a prior ruling.

As she writes, “Although the Chevron decision, which upheld the Reagan-era Environmental Protection Agency’s interpretation of the Clean Air Act, meaning a conservative interpretation, which eased regulation of emissions, even though it was generally hailed by conservatives at the time,” because of the outcome as I’m pointing out, “the ruling eventually became a target for those seeking to curtail the administrative state, who argued that courts, rather than federal agencies, should say what the law means.” So the principle seems to have mattered less over time than the outcome. Is that fair?

Rachel Barkow:

Yeah. And it’s really sad, I’ll just add as a personal note here. So I clerked for a very conservative judge on the DC Circuit, Judge Larry Silberman, and I’m a Democrat, and he was a Republican, like a Republican’s Republican. And one of the things that made that clerkship no problem at all for me, was that we had this shared vision of Chevron, that this was, “Of course, this is what you do,” because he believed in judicial restraint and he would talk about it all the time.

He gave a speech to the ABA about how important Chevron was, to thinking about judicial restraint because of course, it shouldn’t be federal judges that make these policy calls. It should be people in the executive branch who are ultimately responsible to the electorate because you elect presidents who put these people in these agency positions and set these policies. And it was one of those areas where I used to tell people when they’d ask, “How could you possibly clerk for somebody who is conservative?”

I would say, “You know what? Actually, there are these areas of law. They’re not about liberal and conservative; they’re about how you think about institutions.” And it was actually a great clerkship and a great year. And I have to tell you, I’m so sad right now because I just am wondering how many spaces like that exist in the law anymore, because it seems like everything has become so politicized that there aren’t that many pockets where you see people on the left and the right agreeing to a larger institutional principle. And I actually think Chevron’s death is the ultimate monument to the death of that bipartisan consensus of what you think about the role of the courts.

Preet Bharara:

I want to bring the others in, in a moment, but I do have another nerdy law student question. In overruling Chevron, Justice Roberts has this aside. He says, “Chevron, decided in 1984 by a bare quorum of six justices, triggered a market departure from the traditional approach.” What’s the slander of bare quorum of six justices? Isn’t the overruling also six justices? Why does it matter that some had to recuse themselves? I just wanted to know from Rachel what the hell was going on with that comment?

Rachel Barkow:

Oh, that’s such BS. It’s like make-weight garbage. It’s because when you claimed in your confirmation hearing that you were all about stare decisis, you have to come up with these BS arguments to explain why you’re overruling a foundational concept that should absolutely never have been overruled. Stare decisis is meaningless, I will say.

That is your other takeaway from Loper Bright. If you don’t know about that one, which caused no problems, it wasn’t wrongly decided, it’s just on every stare decisis factor that you think about should be upheld, everything they ever said about precedent at their confirmation hearings was just a complete untruth.

Elie Honig:

Rachel, this has been the most moving, passionate, defense of Chevron that I’ve ever heard. Seriously.

Rachel Barkow:

I know. I’m sorry. I’m sorry. This is the ad lib professor-

Preet Bharara:

Elie, if you had done some of that, maybe the course of your academic career in law school would’ve been different.

Elie Honig:

Yeah, would’ve made Law Review. I shouldn’t have given you that and the entire audience, but go ahead, everyone. You can use it.

Joyce Vance:

Rachel, one of my buddies is Lisa Bressman at Vanderbilt, who you may know.

Rachel Barkow:

Oh, I love Lisa.

Joyce Vance:

She’s one of my favorite people in the whole world, and I just feel like she’s needed therapy all week for the death of Chevron. I’m going to send her some cashmere-

Rachel Barkow:

You guys, it’s so sad. I have a hat that my students gave me one year, and I bring it out every year when we teach them-

Preet Bharara:

Is it from Chevron, the gas station?

Rachel Barkow:

Yes. It says it’s Chevron, the gas company.

Preet Bharara:

I love it.

Joyce Vance:

So I actually teach it as part of my Democratic institution seminar. We talked about Chevron at length, and I’ve just realized I’m going to have to write new classes now.

Preet Bharara:

Can I ask a contrarian question? How did we survive for generations until 1984 when Chevron came into existence?

Rachel Barkow:

They gave statute Skidmore deference. I think the courts had a pretty deferential sense then. The biggest-

Preet Bharara:

You could get that hat too.

Rachel Barkow:

The biggest difference though, Preet, honestly, from just a political standpoint is you have to remember, we had all Democratic Congresses from the new deal until the ’80s when Newt Gingrich is… When is the Newt Gingrich? ’92 or whatever? But you had Democratic Congresses as well. And so the idea of the… I think courts weren’t really thinking of the gridlock that we’re thinking of today. So the agencies doing what the Congress wanted, even when they did “liberal things,” wouldn’t have seemed that weird because they were Liberal Congresses.

But once you start to have the deregulatory agenda of Reagan in the picture, then it all of a sudden becomes attractive to think of this idea of, “Well, what we want you to do is defer to these agencies which aren’t going to give these statutes their broadest reading anymore.”

Chevron, at its birth, is a more conservative idea, if you think of who is operating in the branches at the time. And then if you really want to be a complete cynic, you ditch it once you feel like you have enough people in the courts who will do what you want, and you think that democratic administrations, when they come in, the agencies have too broad of a reading.

Elie Honig:

I will say this in defense of Loper Bright, it’s a good exercise in choosing your plaintiff, because the fact pattern here is almost so over the top that it almost makes you sympathize. Are you a fisher?

Joyce Vance:

It’s a real red herring.

Elie Honig:

Right. The regulation that gave rise to this was some rule from the National Marine Fisheries, whatever it is, Service.

Preet Bharara:

Don’t say that dismissively.

Elie Honig:

No, no, no. Listen, I am very appreciative to what they do.

Preet Bharara:

It’s a very good service.

Elie Honig:

But the regulation here, I may not get it exactly right, but it required commercial fishermen to have a federal monitor onboard their boats with them. I don’t know if they’re measuring the size of the herring to make sure or whatever. But monitoring the catch that comes in and pay the guy’s salary. So I get it. I’m generally with you, but if you wanted to hold up an example of the administrative state where you roll your eyes, it’s a pretty good one.

Preet Bharara:

Well, Roberts’ point is that when you talk about expertise, there’s subject matter expertise, there’s scientific expertise or medical expertise, there’s engineering expertise and all of that. But there’s a difference between that and judicial expertise, and statutory expertise, and legal expertise. And the question is can you readily distinguish those things?

Rachel Barkow:

Well, I think he’s putting in mind that you’re reading a statute and you’re just grabbing the dictionary and you’re trying to figure out that courts are really good at that-

Preet Bharara:

These are the same guys who, from time to time, say something is unambiguous when there’s disagreement about it.

Rachel Barkow:

But in reality, what they’re doing is things like deciding how much noise in a statute that says aircraft flying over the Grand Canyon National Park is permissible to provide for substantial restoration of the natural quiet. Is John Roberts really in the best position to decide natural, quiet, and how we think about…

Preet Bharara:

That would be Thomas.

Rachel Barkow:

Get off my lawn. It’s too loud.

Joyce Vance:

But the exact language from the case I think is compelling on this point. They write, “Perhaps most fundamentally, Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguity. Courts do.”

And Rachel, I think that’s your point, that he’s treating this like it’s about resolving statutory ambiguity and not important questions like, “Is it enough to have four bolts attaching that engine to an airplane, or do you need six?” I don’t want Clarence Thomas or John Roberts or any of that crew, Elena Kagan, for that matter, making those decisions.

Preet Bharara:

You know what crystallized this? Did you folks see the folks who pointed out one of the contemporaneous or recently decided Supreme Court opinions written by Justice Gorsuch? As somebody pointed out in a tweet, “Justice Gorsuch’s opinion refers five times to nitrous oxide, AKA laughing gas, rather than the entirely different chemical compound smog-causing nitrogen oxides actually at issue in the case.” So maybe expertise does matter.

Elie Honig:

I like that. I didn’t know that.

Joyce Vance:

Perhaps.

Rachel Barkow:

Definitely.

Elie Honig:

Wait, so he thought he was regulating smog, but he was actually regulating the stuff that your dentist gives when you get teeth pulled?

Preet Bharara:

Laughing gas. Yes, which I believe strongly should never be regulated.

Elie Honig:

Free flow of laughing gas.

Rachel Barkow:

We’re all going to need it after these cases.

Preet Bharara:

I think we all need universal basic nitrous oxide. Can I end with a final question? And this is to everyone who teaches, and maybe in particular for Rachel. Marc Elias, who everyone knows is a lawyer for Democratic causes and files suits with respect to elections and campaigns. He writes in social media, “Among the people I feel bad for today are law professors who have to stand before classrooms of students and explain with a straight face how any of this makes sense.” Does that resonate with you folks?

Rachel Barkow:

Well, I’m not looking forward to teaching any of these. I will say he’s definitely got that part right. Like I told you, I am a little sad because I’m the target audience for conservatives who want to make the judicial restraint argument because I’ve bought it for most of my life. I really did believe there was a group of really principled people who when they said they just didn’t want judges making the law, and so when they were overturning “liberal decisions,” it was about an institutional role.

And I believed that and thought that was a real thing. And I think Chevron is a perfect example of something like that. But as they start to demolish all those things and they themselves exercise no judicial restraint, where they aggressively overturn things on constitutional grounds, where they make atextual decisions like the immunity case, it’s just hard to see that that kind of principled judicial restraint conservative judge exists anymore, at least at a broad level. And that does make it very hard to teach students that law is doing more as opposed to politics.

Elie Honig:

Rachel and Joyce, as you two teach law students… I teach undergrads, I don’t get deep into Supreme Court doctrine or cases. But do you teach that way now? Because I remember being taught in a very… “Well, what the justices do is they apply the inputs and whatever the output is, that’s it.” There was never any discussion of, “Are they partisan…” Has that changed in the way you teach?

Joyce Vance:

Law students aren’t stupid. They understand that when you talk about stare decisis and precedent in terms where they see case after case overturned without meeting the standard for reversing longstanding precedent that something’s afoot.

And Rachel, I’m curious about how you do this, but I think we live in this very uncomfortable time where we have to acknowledge that something is broken in the rule of law. And I think the important pitch to our students, the important message for them is to think about how it should work, and what they can do to be part of getting us back to a better place.

Rachel Barkow:

Yeah, I agree with you, Joyce. I try to keep my eye on how things should be working, even if they don’t always work that way. And there’s examples where you can show, like, “Oh, hey, look, here’s where the conservative justice joins the liberal view or the liberal justice join the conservative view.” So it’s clearly not pure politics. And more importantly, really think about the kind of people that you want to have in those positions. Who should those justices and judges be?

And when you vote, you want to think about who’s going to get appointed and how those people view their role, because all of that really matters. And it couldn’t matter more than it does right now, given what we’re seeing on this Court. I’ll just add, it’s a 6-3 Court, but some of these justices are getting up there. And whether this 6-3 is cemented for decades more, really does depend on who wins the next election. Because Justice Thomas, Justice Alito, they’re older, and if they’re replaced by younger versions of themselves, this is the kind of thing that you’re going to be seeing then for decades and decades.

Preet Bharara:

The good news is, won’t they run out of precedence to overturn? Hey, we’re out of it. We’re out of precedence. This has been wonderful. So I am not experiencing a lot of joy when it comes to law and politics and the Supreme Court in particular in the last number of days and weeks. But it is a real pleasure and honor and treat to be with you three to break it down for our audience. So thank you so much, Joyce, Elie, and Rachel.

Rachel Barkow:

Thanks for having me.

Elie Honig:

Thank you all.

Joyce Vance:

Thanks y’all.

Preet Bharara:

My conversation with Joyce, Rachel, and Elie continues for members of the CAFE Insider Community. In the bonus for Insiders, we discuss the Supreme Court ruling that preserved, for now, access to emergency abortions and more.

Rachel Barkow:

I think you’re going to sadly see a lot of women’s life and health at risk, not just in Idaho, but in states around the country.

Preet Bharara:

To try out the membership for just $1 for a month, head to cafe.com/insider. Again, that’s cafe.com/insider. Well, that’s it for this episode of Stay Tuned. Thanks again to my guests, Joyce Vance, Rachel Barkow, and Elie Honig.

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me @PreetBharara with the hashtag #AskPreet.

You can also now reach me on Threads, or you can call and leave me a message at 669 247 7338. That’s 669 24 Preet. Or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network.

The executive producer is Tamara Sepper. The technical director is David Tatasciore. The deputy editor is Celine Rohr. The editorial producer is Noa Azulai. The associate producer is Claudia Hernández. And the CAFE team is Matthew Billy, Nat Weiner, and Jake Kaplan. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.