Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara.

Jack Goldsmith:

What the Court made clear over and over again, most justices today said something to the effect of, “I don’t really care about this case. I’m worried about future presidencies.” And that’s what the Court is going to struggle with when they were drafting this opinion.

Preet Bharara:

That’s Jack Goldsmith. He’s a professor at Harvard Law School, former U.S. Assistant Attorney General and the co-founder of Lawfare, an online national security publication. Goldsmith joins me to break down what happened at the Supreme Court where the justices heard oral arguments on Donald Trump’s immunity defense in the election subversion case brought by Jack Smith. We recorded this conversation shortly after arguments wrapped up on Thursday afternoon. That’s coming up. Stay Tuned.

Q&A

Preet Bharara:

Now let’s get to your questions. So folks, while the Trump trial is ongoing, in addition to our usual Q&A, I thought it might be helpful to break down some trial basics for you all, based on questions we’ve been getting from listeners. This week, we’ll be tackling mistrials and jury sequestration. Here’s a question that keeps coming up. What does a mistrial mean and how does it come about and what are the chances of one in Trump’s ongoing Manhattan prosecution?

I think that’s an important question and one that will become more important as time goes by and as the trial unfolds in a Manhattan courtroom. As you probably know, there are essentially three basic possible outcomes of a trial. There could be a conviction, there could be an acquittal or there could be a mistrial. I think folks pretty much understand what a conviction means and what an acquittal means.

It’s now for a mistrial. A mistrial just basically means that a trial has ended without a final decision, judgment or verdict. A mistrial can happen in basically one of two ways. The first way can happen when a jury can’t agree on a verdict. That’s called a hung jury, and so a new jury must be impaneled and a new trial held if the prosecution still wants to persist in the case. By the way, a corollary of a jury not being able to reach a verdict is you could run out of jurors. If for one reason or another due to illness or conflicts or some other reason, the number of jurors in the box goes below 12, that’s a mistrial also.

The second basic way that a mistrial occurs is when there’s some kind of significant procedural error or misconduct or something else that may have rendered the trial unfair. When that happens, the judge will adjourn or end the case without making any final decision and generally speaking, grant the defendant a new trial, assuming again, the prosecutor wants to retry the case.

So what kind of errors are those? The procedural error or misconduct could mean something like an egregious mistake in the jury selection process or even jury misconduct. Usually though issues with jurors can be cured by replacing a juror with an alternate. A mistrial can also arise when there’s some kind of procedural transgression by a party. For example, if a prosecutor introduces inadmissible evidence that’s in some way unfairly prejudicial to a defendant, especially where subsequent jury instructions can’t cure the mistake, that might be a procedural error and result in a mistrial. That’s why prosecutors know never to make any comment in any way, shape or form about a defendant’s decision not to testify. That is the kind of thing if uttered and not curable can result in a mistrial.

By the way, the defense side can also cause a mistrial by, for instance, failing to follow a judge’s direction when questioning a witness in front of the jury. Mistrials can also occur if there’s misconduct by the judge who may not follow proper procedure or allowing proper evidence to be admitted or wrongly excluding admissible evidence or some other thing that causes the trial to be rendered unfair when pointed out by one of the parties. The basic principle is if some bad thing happens that can’t be cured with an instruction or undone in some way by for example, replacing a juror, then the situation is ripe for the declaring of a mistrial.

Now, one obvious question that’s implicit in the questions that I keep getting is why is a mistrial necessarily a bad outcome? Well, it’s not in the broad sense of things because if there was some unfairness, you want to have another go at it. So if there was some kind of procedural error or misconduct on the part of litigants or the jurors, the trial should be voided. But as a strategic matter, mistrials are generally thought to be bad for the prosecution.

I guarantee you the only people in that courtroom who want a mistrial in the Trump case is the Trump team. The prosecutors don’t. The judge doesn’t, and I bet the jurors don’t either. Why is it bad for the prosecution? Well, first there’s a drain on time and resources that have to be spent in retrying the same case, recalling witnesses and experts for instance, and scheduling new trial dates, which may be difficult to do.

Second, the prosecution will have lost I guess some of the element of surprise. If a mistrial happens well into a trial, many of the prosecution’s arguments and witness testimony will already have taken place. So the next time around, the defense generally speaking, will have an advantage and there is also at a second or future trial a greater likelihood of inconsistent testimony that provides fodder for cross-examination by the defense. So generally speaking, prosecutors do not like mistrials.

Now in this case in particular, the case of The People v. Donald Trump, a mistrial would be potentially disastrous for the prosecution for yet another reason, delay. The criminal case bought by Manhattan DA Alvin Bragg, as I’ve said many times, may be the only criminal case against Donald Trump with any chance of concluding before the election and if a mistrial were to occur for any reason at all, those chances would be lessened and any hope of Donald Trump being held to account in a court of law before the American people cast their votes might be gone.

So getting back to one of the initial questions, how likely is a mistrial to occur in this case? Well, as with many things in the future, it’s impossible to guess. The answer depends on a whole host of factors. Now, on the one hand, as I mentioned earlier, if you run out of jurors for one reason or another, that’s a mistrial. I think that’s very unlikely to happen in this case. That’s why we have six alternates, which is a substantial number and more than the usual number of alternates that get seated in any particular criminal case in state or federal court.

It would take a lot for six jurors given the expected duration of the trial to be removed and replaced by alternates. So I don’t think the likelihood of that being a basis for a mistrial is high at all. I also think generally speaking, the prosecutors are very careful in this case, the judge is pretty careful in this case and they’ll do everything they can to avoid the possibility of a mistrial.

Now, some have speculated, and its pure speculation, that with respect to the Trump team, they might try intentionally to seek a mistrial with some kind of shenanigans in court. Perhaps Trump’s lawyer or a witness or perhaps Trump himself might deliberately say or do something in court that violates one of the rulings of the judge or the norms of trial procedure or a rule of evidence in a way that could arguably irreversibly prejudice the jury and in a way that the prosecution would have to accept a mistrial. I think it’s a low possibility and it’s a dangerous way to play, but it’s non-zero. And with Trump, I’ve learned to never say never. In any event, let’s hope it doesn’t come to that.

Here’s another recurring question that I get particularly since people have been focusing on jury selection in the Manhattan criminal case and the question is why and under what circumstances are juries sequestered rather than just made anonymous? As you all I’m sure know by now, the jury in Trump’s Manhattan prosecution is anonymous. In New York, what that means is the identities of the jurors will not be publicly known, not to the press, not to you and me, but they will be known to the parties themselves. That’s how they’ve been able to do social media research on the jurors and strikes them for cause based on that research, because they do know the jurors identities.

In this case, what that means is the identities of the jurors will not be publicly known, will not be known to the media, will not be known to you and me, but they will be known to the lawyers who are arguing the case. Why do we use anonymous juries? Well, there are two related reasons that are commonsensical, juror safety and juror integrity. If jurors names are not publicly known, it’s much harder for them to be targeted for intimidation or harassment or tampering, and it’s a pretty substantial step to have an anonymous jury.

Now, an even more substantial step and rare step is to sequester the jury. That’s when in very sensitive cases, juries are completely physically isolated during trial. They’re not just anonymous, but they’re as the name suggests, sequestered. Like anonymity, sequestration ensures that jurors can’t be intimidated or tampered with or harassed. For instance, sequestration was ordered in the 1992 trial of organized crime boss, John Gotti, where there were actual fears that jurors might be intimidated with physical violence or even bribed to reach a certain verdict.

But sequestering the jury also serves another purpose, juror impartiality. Physical isolation obviously makes it easier to prevent jurors from reading or watching or listening to outside information so that ideally their verdict is based solely on what they hear and learn at the trial. That’s one reason why we had sequestration in O.J. Simpson’s prosecution. That was in light of the immense publicity surrounding that trial with the hope that jurors wouldn’t be influenced by ongoing saturation media coverage.

Sequester juries are usually put up in hotels for the pendency of the trial. That way they’re safe from intimidation and safe from the coverage. These days, sequestering a jury is a very, very rare thing and sequestration is used quite sparingly. For one thing, it is very, very expensive, very labor-intensive, requires a lot of resources. And complete isolation sometimes for many weeks, if not months, is understood to be extremely taxing on jurors. And depriving jurors of access to smartphones, although not unprecedented, seems like an extreme measure that most judges just wouldn’t take in this day and age. Those are the considerations at play that explain why we have an anonymous jury but not a sequestered one.

Now I think the current setup is not perfect. In this case as I’ve said before, I would concede it’s really, really difficult for even the most conscientious of jurors to remain completely in the dark about these proceedings, right? Just think about it. Anytime you open your phone or a newspaper or turn on the TV for some innocent purpose, you will likely encounter some bit of news about this trial, even if you’re doing your absolute best to follow the judge’s instructions not to consume outside information.

But one would hope that these jurors understanding the stakes, understanding the scrutiny, understanding the importance will take their civic duty very seriously and that the solemnity of the proceedings and the historic moment in which we find ourselves will impress upon that jury the importance of giving Mr. Trump the fairness all defendants are entitled to at trial.

This question comes in a tweet from Kenneth, who writes, “What difference does it make that the judge in the Trump trial says his attorneys have lost all credibility? It’s not the judge that decides the case, it’s the jury. All the judge can do is sanction the attorneys and/or call a mistrial, which is what Trump wants. #AskPreet.” Well, Kenneth, that’s a really great question. I think it’s an insightful question.

For context, people may appreciate that earlier this week there was a hearing on the question of whether or not Donald Trump should be held in contempt for violating the gag order in the case. As of this recording on Wednesday morning about 11:00 AM eastern time, there has been no ruling on the contempt request. It’s quite possible that there will be a ruling by the time you listen to this podcast. But during the course of that proceeding, Justice Merchan again and again lambasted Todd Blanche, one of Trump’s main lawyers, and at one point when Todd Blanche couldn’t come up with legal authority for his position about why Donald Trump should not be held in contempt, Judge Merchan lit into him and said, as you point out in your question, “Mr. Blanche, you have lost all credibility with the court.”

So Kenneth, you’re absolutely correct that in this case where there’s a jury, it is that jury that makes the decision about guilt and renders the verdict, not the judge. But as I’ve pointed out many, many times, as I’ve written about and as I’ve experienced directly myself, judges in a case are really, really important and have a lot of power and authority to shape the kind of case that goes to the jury when they begin deliberating upon the conclusion of the entering of the evidence.

Every day in that courtroom, the judge is making rulings not on the ultimate verdict, making rulings about what evidence comes in, what doesn’t, can indicate indirectly or directly whether or not he thinks the lawyers are credible, with cues jurors sometimes take for themselves and it makes them think, “Well, if the judge doesn’t trust a lawyer, why should I trust the lawyer?” All of that can have a very serious and negative consequence on a party’s advocacy for their client.

So yes, jury makes the verdict, but the judge has a lot to do with the kind of case and the kind of evidence that the jury must consider when it decides to render that verdict. That said, by the way, I just want to make another comment about what the judge said. I think the remark was a bit of an overstatement. I don’t think it’s the case notwithstanding the words of the judge that Todd Blanche has lost “all credibility” the court, I think the judge was in a moment of peak. I think he was frustrated that he wasn’t getting legal authority.

He understood, as“a smart judge w”uld, that some of this is not Ie of Todd Blanche not being prepared. Some of this is because Todd Blanche just doesn’t have good facts in his favor or good law in his favor, but he has an insistent client, an insistent incorrigible client who is demanding and directing him to make these weak arguments, and the judge gets that. The judge understands that.

In a way, it’s my sense that the judge is making that admonition with full understanding that Todd Blanche is making these arguments at the insistence of his client Donald Trump, and by making the admonition in front of Donald Trump, presumably he thinks he’s giving Todd Blanche some ammunition perhaps to better control his client going forward.

This last question comes in a tweet from Twitter user or X user @engstromMN who asks the very important question, “What’s a motion in lemonade?” So that’s a great question. I will concede, given the spirit of your question that we do on the show and in other places when we talk about legal issues, I try not to, but we sometimes lapse into jargon and assume some understanding of the jargon that we have lapsed into. We talk about voir dire, we talk about mandamus, we talk about severance and we talk about something else, motions in limine, not lemonade, in limine, L-I-M-I-N-E.

And it’s simply a motion or an argument that a party makes to a judge, not to the jury, but to a judge. Generally speaking, before the trial begins or before the issue is presented at trial, that endeavors to get the judge to opine on and make some ruling on a piece of evidence whether it’s admissible or shouldn’t be admissible, whether it’s relevant or not relevant, whether it’s unduly prejudicial or not, so that the parties know what they can and cannot say, what they can and cannot ask, what evidence they can and cannot put in front of the jury before the trial or before the issue becomes ripe.

That’s all. That’s a motion in limine. A motion in lemonade, I’m not quite sure, but I’d love to hear people write in and tell me what you think a motion in lemonade might be. As they say on social media, wrong answers only. I’ll be right back with my conversation with Jack Goldsmith.

Should Donald Trump be immune from criminal charges for acts committed while he was president? The Supreme Court will soon decide. Harvard Law Professor and Former United States Assistant Attorney General Jack Goldsmith is here to discuss yesterday’s oral arguments.

THE INTERVIEW

Preet Bharara:

Jack Goldsmith, welcome back to the show.

Jack Goldsmith:

Thanks for having me.

Preet Bharara:

This is kind of a special episode for us, Professor. We normally drop our podcast on a Thursday, but we have these historic Supreme Court arguments on the scope of presidential immunity that was occurring on a Thursday, so we halted all production so we could talk to you, one of our best guests.

Jack Goldsmith:

Well, I’m honored, thank you.

Preet Bharara:

And before we get to the oral arguments, and there’s a lot of swirling commentary about how the votes align and whether this will cause a delay in the Trump trial in DC and all of that stuff. Could you, in your best rigorous professorial manner for laypeople, explain to us exactly what the Trump lawyer’s argument is that Americans can understand about the nature of presidential immunity and in particular for former presidents, what’s the argument and what’s the scope of it?

Jack Goldsmith:

The argument essentially is that a Former President of the United States gets complete absolute immunity from all criminal prosecutions for his official acts taken in office, and that would mean basically total immunity for official acts. Now, the question we can get into this later, what counts as an official act and what count as a private act?

Preet Bharara:

Yes, that’s the next question.

Jack Goldsmith:

Yes. So is that the question to me?

Preet Bharara:

Yeah, I might as well, because the first question as you frame it doesn’t really answer the ultimate question, does it?

Jack Goldsmith:

Well, it might because first of all, the court has never made clear where the line is between an official presidential act and a private presidential act. Everybody agrees that the private acts of the president do not get any immunity and Trump’s lawyers argued that the president’s public acts get complete immunity.

Preet Bharara:

Can we see if there’s any common ground at the outer edges of each argument? Are there things that both parties and the court as a whole would agree are official acts for which there should be immunity?

Jack Goldsmith:

I think that the special counsel’s lawyer argued that at the core, all of the president’s constitutional powers, exclusive constitutional powers, the president’s pardon power when he issues a pardon, the president’s recognition of foreign governments, the president’s veto, these are official acts of the presidency. More importantly, it seemed to me that Trump’s lawyers conceded today. I was surprised by this, that many of the alleged act in the indictment were not official acts, that they were private acts and therefore, they would not be covered by the immunity claim.

Preet Bharara:

Was that a mistaken concession?

Jack Goldsmith:

I was surprised that they conceded.

Preet Bharara:

Was it deliberate?

Jack Goldsmith:

I don’t know. I was surprised that they conceded it so readily and it seemed to concern a good chunk of the indictment. I’ll give a qualification to that because well, they conceded that basically the president’s actions, most of the president’s actions with regard to private officials, for example, I think they said that the president’s acts through private attorneys and other private people to try allegedly to put forth a fraudulent slate of electors. I think he said that that was a private act and other things like that, and I was very surprised by that concession. I guess if I were arguing for Trump, I would’ve tried to muddy the waters a little bit on that. That was a potentially large concession, but-

Preet Bharara:

And a rare one, and a fairly rare one. There’s not a lot of conceding in courtrooms, whether district court, appellate court or Supreme Court where Trump lawyers concede anything, do they?

Jack Goldsmith:

Not that I know of, and it was one of the few concessions made in this argument. They really stuck by the position about public acts pretty firmly with some pretty extreme hypotheticals. So that was a potentially large concession because that means that possibly the trial could go forward right away on remand with regard to-

Preet Bharara:

What was conceded.

Jack Goldsmith:

… stripping down the indictment of its alleged public acts, whichever those are, and could go forward with regard to private acts. Now, there are two qualifications I would make to that. One is we don’t know where that line is, and it may be that the district court would have to determine exactly where the line is before the trial could go forward on that basis.

And the second is that Trump’s lawyer insisted that none of the public acts of the president, none of the president’s official acts, whatever those are, could be even put into evidence with regard to possible criminality concerning the private acts.

Preet Bharara:

I want to get to the procedural issues in a moment and the delay consequences that are possible, but just going back to this distinction between official act and private act to add a wrinkle of complication that was addressed at the arguments, you said a moment ago that a core official act of a president might be the granting of a pardon, right? Unfettered power within the constitution to grant a pardon. If that pardon was received in exchange for a million dollar bribe, there was some discussion about a related hypothetical. So a pardon official action as a consequence of a million dollar secret bribe, official act or private act?

Jack Goldsmith:

I think the Trump team would claim it’s an official act and this trouble, the Chief Justice, he used the hypothetical of, I think it was appointing an ambassador, which is an analogy. And what if the president-

Preet Bharara:

In exchange for a bribe.

Jack Goldsmith:

In exchange for a bribe, right. And Trump’s lawyer did not have a great answer to that. I think he insisted that that would get immunity. And this is where, let me just say it’s not clear that this public act/private act distinction is that there’s a clear line there. That’s why the court has never articulated it. It’s also we know that it’s important if they do give immunity, it’s only for public act. So that’s why it’s important in part to determine what the difference between public and private acts is, but the court might not recognize immunity even for public acts. They weren’t committed to that. This was the hypothetical within the Trump’s arguments.

Preet Bharara:

On this question of whether an official act in the normal course and a vacuum, the appointment of an ambassador or the granting of a pardon, is that then pigeonholed into a private act because of the payment of a bribe? Who has the better argument on whether that’s a public act or an official act?

Jack Goldsmith:

So I don’t know what-

Preet Bharara:

This is your chance to play justice.

Jack Goldsmith:

Yes, I’m going to play justice, but the justices didn’t have a good answer to that question either.

Preet Bharara:

Yeah, but you’re smart as any of those guys.

Jack Goldsmith:

I don’t know about that. The problem is that it turns on several different factors. It is a public act when the president does that. Some justices were trying to argue, well, if it’s an official act but it’s for private gain, then that shouldn’t count as an official act.

Preet Bharara:

That’s a pretty good test, isn’t it?

Jack Goldsmith:

I don’t think that works very well because the president does all sorts of things for private gain. I mean-

Preet Bharara:

He might pass a bill for his own electoral advantage.

Jack Goldsmith:

Exactly. Anything that the president does to arguably increases reelection chances might fall in that category and also it gets you into motive. Motive is very, very hard to sort out, especially at the outset of a trial when you’re trying to make the immunity determination, which is why the court has shied away from motive analysis in determining immunity. So I’m not sure that distinction is very helpful.

Preet Bharara:

Can you explain this other argument that’s related to what we’ve been talking about that the Trump team has made before and had made again, which is that in any circumstance, in order for a former president to be charged criminally and for that to be viable and legitimate, the president, that person must first have been impeached by the House and convicted by the Senate. Can you explain what that argument is and whether it holds any water?

Jack Goldsmith:

Yes. I think this is a bad argument. It comes from the impeachment judgment clause. This is a clause that says that judgment in cases of impeachment shall not extend further than removal of office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States. And then it has a caveat. The party convicted shall nevertheless be liable and subject to indictment, trial judgment and punishment according to law.

Now, Trump’s lawyers invoke that provision which doesn’t mention anything about the president and doesn’t mention anything about impeachment, it’s just about conviction. They invoke that argument for the claim that it supports their broad immunity claim and it’s just a terrible argument. It’s just the text of that provision of the Constitution doesn’t support that reading. It doesn’t say anything about the president, it doesn’t talk about immunity. Their claim is that a president has to be both impeached and convicted in all circumstances before the president can be tried. And it’s just not what the clause says.

Preet Bharara:

And this does not necessarily carry the day for the other side in the Supreme Court. But if I remember correctly, wasn’t it the case that Trump lawyers made the argument as to why he shouldn’t be convicted in the Senate on either the impeachment and particularly the second impeachment vote that he was otherwise subject to prosecution?

Jack Goldsmith:

Yes.

Preet Bharara:

After he left.

Jack Goldsmith:

Trump argued the other side of that for impeachment that don’t worry about acquitting him here, he can always be prosecuted after he leaves the presidency.

Preet Bharara:

And now they’re arguing the exact opposite. Just explain to laypeople how, you and I understand there are different proceedings and different arguments and they can be inconsistent and there’s no requirement to be held to a prior argument, but explain to the lay public how someone like the former president of the United States can get away with that nonsense.

Jack Goldsmith:

Well, you could make any argument you want in a brief and before a court, and it may have been a plausible argument in the impeachment context. But that argument has gotten zero traction in either of the courts below and it didn’t get any traction at all in the Supreme Court today.

So I just don’t… Now there’s a related argument that they made below that this provision is it’s actually like a double jeopardy provision and it means that if someone is impeached but acquitted, i.e. that if they’re impeached but acquitted, i.e. not convicted, then maybe they can’t be tried again in a criminal trial. That argument, which is a very different argument, it’s a double jeopardy type argument. There’s more to that argument, but it’s not before the court today. I don’t think it’ll be a winner ultimately. That is I would say a facially plausible argument. But the one they’re making-

Preet Bharara:

I’m sorry, how is it a facially plausible argument if you understand the principle of separate sovereigns, which I probably only have a passable understanding of, what’s the double jeopardy argument exactly?

Jack Goldsmith:

Yeah. So the reason I say it’s a plausible argument is because the Office of Legal Counsel where I used to work, took this argument-

Preet Bharara:

Don’t be so modest, you said it.

Jack Goldsmith:

I used to lead the Office of Legal Counsel under Randy Moss in 2000 when they were thinking of Bill Clinton who had been impeached but not convicted. They took this argument very, very seriously. It took them 60 pages to explain why this argument didn’t work. And it turns out that was probably the right conclusion, but it turns out there are a lot of arguments that that’s what the framers had in mind.

Now, again, I don’t think it’s a winning argument. I don’t think the court is going to grant cert on that. I’m just pointing to that argument to show that there’s something to that argument, but there’s nothing to the argument that this provision gives absolute immunity to the president unless he’s impeached and convicted.

Preet Bharara:

So here are questions that arise in the minds of thoughtful American citizens, many of whom are our listeners who are not lawyers, and they hear two hypotheticals, and I want to ask you about both of them, which came up again and again before, and they came up again and again in today’s Supreme Court oral arguments, right? And you think the way our legal system should work, these are astonishing arguments about those hypotheticals.

And one was what if a sitting president orders his generals to engage in a coup? One of the justices at least asked about that, and the other is one that came up before. What if a sitting president orders the assassination of a political rival for purposes of electoral gain? Are those official acts? Are they private acts? Are they subject to prosecution at least after the presidency? How are we supposed to think about that and how are we supposed to think about the fact that these are sort of straight-faced arguments being made in the highest court in the land by a lawyer for the formerly highest-ranking person in the country?

Jack Goldsmith:

It seems like a crazy argument and it is, but this is something really, really important to understand about this case, and I’ll come back to your hypothetical in just a moment. The justices today made very clear that they weren’t particularly, that none of them I think, or very few of them, maybe one or two in some contexts were defending the Trump immunity argument. And that was the Trump immunity argument was made in those extreme cases. And the reason those extreme hypotheticals were presented was to try to show the reductio ad absurdum how absurd it was for Trump to be making those arguments.

But the problem is, and you understand this, is that what the justices are worried about is not what happens to Trump. They really aren’t. They’re worried about future presidencies. And the problem is, and you can craft horry hypotheticals on the other side as well, which is what happened today as well. The problem is they’re looking for the right rules such that you can have some accountability constraints on the president through criminal law after the president leaves office. But it’s very hard to do, especially with the very broadly worded obstruction and related statutes in this case.

It’s very hard to do without imagining lots of hypotheticals where everyday presidential action suddenly becomes subject to potential criminal prosecution because the president engages in all sorts of law enforcement, engages with Congress, he fires officials, all of which have political implications, all of which might have bad motives. So the Trump lawyers would’ve preferred not to talk about that hypothetical, but they’re pushed into that because those are examples of official acts which are grotesque abuses of power, and they were pushed into those hypotheticals to show how absurd their ultimate position is.

And I don’t have anything to say in defense of that argument. It’s just an implication of what they’re arguing and it shows I think why that argument can’t be right, but they’re hypotheticals on the other side that the court was worried about. What the court made clear over and over again, most justices today said something to the effect of, “I don’t really care about this case. I’m worried about future presidencies,” and that’s what the court is going to struggle with and when they’re drafting this opinion.

Preet Bharara:

And is the way to think about that, what the court’s concerned about or what any individual justice is concerned about. The question to me is are they more concerned about a future president run amok, which a lot of people are, or are they more concerned about a future prosecutor run amok if given the opportunity? And does the answer to that question determine where a particular justice is going to be on these issues?

Jack Goldsmith:

I think it’s going… Yes, I do. I think there are so-called evils on both sides of these things to be concerned about on both sides. This is a perfect example. We’ve never addressed these questions before. The question of a president-

Preet Bharara:

Can you explain why is that, Jack?

Jack Goldsmith:

Sure. This is important. We’ve never addressed these questions before because no president has ever been indicted-

Preet Bharara:

Thank you.

Jack Goldsmith:

after he leaves office. But it’s a great example about how we’ve gone 240 years, the norms have worked pretty well. Presidents have stayed within the large bounds of legality. Obviously, there’s some contested cases and some presidents went off the rails. We see nothing like Trump. Trump here, like everywhere else in his presidency raises novel issues that once you go there, they’re hard because it turns out that so much of our law assumes a kind of reasonable president with, as Schlesinger said, with checks and balances stitched into his or her breasts. And that’s not true here.

Preet Bharara:

Just to ask the question in a slightly different context, just to express some frustration, isn’t it appropriate to find it a little bit odd that given what you’re presented with arguably is a president run amok, right? Indicted in four places, all sorts of civil actions, among the charges impeding the peaceful transfer of power, these are big deal things-

Jack Goldsmith:

I agree.

Preet Bharara:

… that anybody who thinks and considers the issues relating to executive power should be concerned about. And so you would think that the focus would be unlike what you’ve just recited, I think correctly, you would think the focus would be on this guy and another guy in the future like this guy, a president run amok. And I don’t know that they think that their prosecutors run amok. Maybe that’s what’s factoring in here, maybe they do think that. But isn’t it a little bit odd that the concern is that other hypothetical when they’re presented with a president who is arguing fabulously for extreme presidential immunity?

Jack Goldsmith:

I don’t think so actually. First of all, I do not expect the court to credit Trump’s argument, just to be clear. They will reject his argument.

Preet Bharara:

His main argument.

Jack Goldsmith:

His main argument that the president gets absolute immunity from criminal prosecution for official acts. I’m very confident the court will not.

Preet Bharara:

And when you say the Court on that point, on that broad point, you think 9, 0, 8, 1, 7, 2?

Jack Goldsmith:

I would say at least seven.

Preet Bharara:

Okay.

Jack Goldsmith:

Six or seven. On that I’m very confident, and it may be more, it could be nine because in truth, there’s absolutely, there’s extremely little support for Trump’s claim. There’s practically none. The main precedent, I’ll just mention briefly, is a case called Nixon v. Fitzgerald where the court was given immunity after he left office for official acts from civil suits. But the court in that case all but said this rule is not going to apply in the criminal context.

And so I just don’t think it’s very hard to reject his main argument. But again, I really do think that the court, they can’t just say this is really bad, there’s no immunity here in remand because it’s not just a worry about prosecutors run amok, and I’ll come back to that in a second. Even if there aren’t prosecutors running amok, the presidency will be worried about this. And this happens in a context, and I’m sure the justices were thinking about this. Some of them suggested it where it’s not clear how much justice department norms are going to constrain a future president.

In fact, Trump has promised to undo them, indict and prosecute Biden. And so they may be worried about that case as well in terms of how they’re going to craft this rule. I just don’t think it’s as simple as we just need to tag Trump on this and move on. The court, it doesn’t want to, in my judgment. It doesn’t want to protect Trump from this prosecution. It will not protect him from this prosecution. I’m quite confident that this prosecution will be able to go forward, whether it can go forward.

Preet Bharara:

Eventually.

Jack Goldsmith:

Eventually, yes. So that’s a separate question though. Whether it can go forward-

Preet Bharara:

I promise we’re going to get to.

Jack Goldsmith:

Whether it can go forward before November, I’m increasingly doubtful.

Preet Bharara:

Me too.

Jack Goldsmith:

But that’s a separate question. And I don’t think anything the court’s going to say here is going to protect Trump from being prosecuted for many of these acts.

Preet Bharara:

Can I ask you an advocacy question for our listeners? As you point out, the very broad unorthodox immunity argument is going to find no favor among most of the justices and perhaps even all the justices. And certainly among legal experts, it doesn’t find much purchase. Given that there are things that many of the justices are concerned about, including cabining future run amok prosecutors and giving future presidents some protection that’s concrete, what would’ve been the better way for the Trump team to have gone about making these arguments?

Jack Goldsmith:

Oh, I didn’t say that there was a better way. I mean, you know about this as much as I do.

Preet Bharara:

They’re backed into a corner to make the extreme argument because of the position they’re in?

Jack Goldsmith:

No. I think first of all, I think this is speculation. Their main goal is not to win this argument. Their main goal is to delay.

Preet Bharara:

Is to delay, yeah.

Jack Goldsmith:

What they’re trying to accomplish, I think one of the main things they’re trying to accomplish is to ensure that the trial takes place after November. And they succeeded, I think rightly. I think the court rightly granted certiorari in this case because of its importance. And so that’s the first point.

Second point is there’s a school of thought, you know this, that you ask for the moon and if you get one-tenth of the moon and that’s enough that you win. In other words, you open the range of, you asked for an extreme rule and the court rejects that extreme rule, but they end up giving you what you needed in the end. That might’ve been their strategy, I don’t know.

Preet Bharara:

Yeah, I don’t know that this comes up every day in the practice of law in even a monetary negotiation in connection with a civil dispute. Do you ask for a gazillion dollars and hope you come down to a more normal number? Or does the first request for a gazillion dollars entrench the other side into thinking that you’re a lunatic and can’t be bargained with? Do you have any view on those two things?

Jack Goldsmith:

That’s a trade-off or that’s a consideration.

Preet Bharara:

Maybe it depends on the particular institution you’re arguing in front of who the arbitrator is, who the opponent is.

Jack Goldsmith:

Obviously.

Preet Bharara:

But that’s a worry always.

Jack Goldsmith:

It’s always a worry that you can be crazy and seem crazy and the court is just going to, you’re going to lose credibility before the court because you make extreme stupid arguments. The Trump team though, and again, I don’t know if they’re thinking in this way, but they know and if they don’t know, it’s true that the court, no matter how bad their arguments, I’m sure that no one was impressed with the briefs. The briefs in my judgment by the Trump team were not very good.

But no matter how bad the arguments for the broad position, there are credible arguments about how you craft a rule in a way that doesn’t truly severely burden the presidency in terms of the president’s everyday activities. And again, I don’t know what they were thinking. I did not find the briefs very compelling.

Along the way, most of the briefs were in my judgment full of losing arguments, but they did come up with hypotheticals about how the rule of non-immunity will burden the president in various ways. They’re able to get, we haven’t gotten into this yet, but there are a whole bunch of backup positions beyond immunity, which the court seemed attracted to that the special counsel even acknowledged could be ways to protect the president. Maybe that’s what they were ultimately after. So, I don’t know what their strategy was, but I did not find… The brief just made very extreme arguments. Maybe Trump insisted on it, who knows?

Preet Bharara:

Yeah, that’s often the case.

Jack Goldsmith:

I think it’s quite plausible that he said, I’m Article Two and I want to assert maximum Article Two power. And I do think he’s not a lawyer and doesn’t understand the law, but I do think he exercises influence on the arguments that are made.

Preet Bharara:

I’ll be right back with Jack Goldsmith after this.

I want to ask you about the tea leaves that you can see from what questions various justices asked today. But I’m going to ask you maybe a slightly unfair question. Do I remember correctly that you clerked for Justice Kennedy?

Jack Goldsmith:

I did.

Preet Bharara:

Who was an interesting justice, and I think you have written and others have observed, he wasn’t overly drawn to a particular ideological perspective in the world, something of a pragmatist depending on the issue. How do you think he would’ve reacted to these arguments?

Jack Goldsmith:

So I think he would’ve been, as he often was, torn.

Preet Bharara:

Yeah. It’s the most important quality in a justice, no?

Jack Goldsmith:

I actually think it is, and I did not appreciate this when I was a young and naive and arrogant and clerking for him. I did not appreciate how important the quality this is in a justice, and I do think it’s important for a justice to see in a genuine deep way both sides of the case and all of the implications.

And I think he would’ve been drawn just by what we’re drawn to just what we’re talking about. He would’ve been appalled by the allegations in the indictment and by the events related to January 6th and interfering in the election. And he would not have wanted in any way for this opinion, in any way to credit that. And if he had written it that way, I’m sure it would’ve been filled with rhetoric that if not denounced it, made clear that he didn’t approve of the allegations of true.

But on the other hand, he definitely would’ve been concerned about the Article Two implications. And his opinions were often concerned about structural implications of rulings in one context, from one context for another context.

Preet Bharara:

Yeah. We should go back to a basic question again for listeners, whether you are a Trump lawyer arguing for absolute immunity in the broadest possible sense, or you’re one of the skeptical justices who disagree with that but want to make sure that a former president has some protection or concrete notice of the things that are or are not prosecutable, what’s the reason for that?

Because you can imagine someone asking the question, “Well, I don’t understand. If once you’re a citizen, why can’t you just be prosecuted under the protection of the constitution and all the amendments that are protective of defendants and targets rights?” Why is there even a need to have some special set of considerations for someone who used to be the president?

Jack Goldsmith:

It’s a great question and the answer is important, and you tell me if it’s persuasive. The reason is, as the court says in so many cases, the president is a truly unique constitutional actor in a truly unique constitutional position sitting atop one of the three branches filled with the executive power with a duty to take care that the law be faithfully executed, which means of course, that the president has to comply with the law, but also that the president has to enforce the law, which gives him all sorts of powers and responsibilities.

The president makes depending on how you count, because he makes a lot of decisions through subordinates. But the president makes dozens, maybe hundreds of decisions a day about law enforcement, about political things vis-a-vis congress in courts. The worry is that if a president is subject to criminal prosecution after the president leaves office for matters in office that are close to what his core constitutional responsibilities are in running the executive branch, the court worries.

And this is a worry that’s been reflected in many, many cases that the president will be jailed from vigorously exercising his responsibilities. And that is seen as an important evil given the fact that we, on purpose, the founders established a powerful presidency and thought that a robust presidency was needed to make the government work.

So this case, it just couldn’t tee up these fundamental principles more. We have the principle that no person is above the law and that every person has to be subject to criminal law, but we also have a principle that the president has special responsibilities, and if his responsibilities are always bumping up against the possibility of violating a criminal law, then the president is going to hedge, hedge, hedge. That’s the worry and that would make for a bad presidency.

Preet Bharara:

And in fact, at the arguments today, I heard the lawyer for the special counsel’s office who was there, in fact also as a representative of the Department of Justice, the Solicitor General’s Office, Michael Dreeben paying deference to the idea of making sure that executive authority is protected and that we maintain a strong presidency. So this issue, it’s a question of level and scope, but this concern is shared by all sides. Is it not?

Jack Goldsmith:

It is shared by all sides. And let me just say that Michael Dreeben, he was actually arguing on behalf of the special counsel, not the solicitor general.

Preet Bharara:

But I thought he got asked a question.

Jack Goldsmith:

He did. So let me, yes.

Preet Bharara:

Explain that to me because he was asked specifically about the relationship between him and the solicitor general’s office.

Jack Goldsmith:

So the special counsel represents the special counsel, but the special counsel is bound by the rules and principles of the department. And as Dreeben explained, he had a duty to consult with the solicitor general. And when the justice is asked a couple of times, “Is that the position of the department?” And a couple of times he said yes. And they said, “What does that mean? Who did you consult? The attorney general? The solicitor general?” He said, “The solicitor general,” which of course as you know and your listeners know is the branch of the Justice Department responsible for arguing cases in the Supreme Court.

I was just making a technical point. Yes, he did consult with the solicitor general, but he wasn’t arguing on behalf of the SG’s office. That’s all.

Preet Bharara:

But he was not at variance with the SG?

Jack Goldsmith:

He was not and his brief, by the way, and he was hemmed in on several… Let me just tell you what a difficult position Dreeben was in. This has only happened a couple of times in American history. I think in the Nixon case was maybe the last time it’s really happened where you’ve got someone up there where the president is on the other side in a criminal or quasi-criminal context in Nixon.

And the person arguing on behalf of the United States has an interest on the one hand in making sure you can prosecute this person for bad acts, but also has what the SG thinks is an equally important responsibility for protecting the prerogatives of the presidency.

And so he was up there having to defend both positions at the same time. I think he did a pretty decent job of doing that. But as you say, he acknowledged both because he had to because of the department and because he knows the justices are worried about this, that there’s an important interest in the president protecting the presidency on the other side.

Preet Bharara:

What about this common sense argument? It was mentioned a couple of times in arguments today, and that is this whole idea that Trump is putting forward through his lawyers, that you have absolute immunity from criminal prosecution essentially is not something that anyone has ever understood to be true before, as evidenced most maybe poignantly by the fact that Ford felt he had to give Nixon a pardon and Nixon felt he had to accept a pardon.

In the universe in which there’s absolute immunity, you don’t need the pardon and you don’t need to issue the pardon. Is that a viable legal constitutional argument or is that just sort of a sideshow?

Jack Goldsmith:

I think it’s in between. I mean, it’s part of an argument, a broader argument about practice, about the practice of the political branches over the course.

Preet Bharara:

Yeah. But does the practice matter?

Jack Goldsmith:

I think it matters. Of course it matters. I mean, for one thing, yes, it matters because as-

Preet Bharara:

To this Court, does it matter?

Jack Goldsmith:

Yes, this Court has sometimes looked to the practices of the political, this Court, the modern Supreme Court sometimes looks to the practices of the political branches and of the executive branch sometimes in informing what constitutional meaning might be. And I am not saying that it’s going to be given a whole lot of weight, but just to underscore your point, it’s also true that the Department of Justice has for years basically assumed that the president could be prosecuted after he left office.

There’s a famous Justice Department opinion that says the president cannot be indicted and prosecuted while in office. And in the course of that analysis in passing and certainly implicit in it was the idea that the president could be prosecuted after office. The Ford pardon of Nixon as you say is pretty objective proof that everybody there thought that Nixon could be in fact prosecuted. Now, the Trump’s lawyers today said, “Well, there were many private acts at issue there,” but that wasn’t discussed at the time of the pardon.

And so it’s been largely assumed in the practice of the government that the president can be prosecuted after he leaves office. In fact, as you said earlier, Trump acknowledged that when he was being impeached, and it’s just been a standard assumption of the way the government operates for a very, very long time. And I do think that will influence the justices in rejecting the extreme argument.

Preet Bharara:

Can we whip some votes now, Jack?

Jack Goldsmith:

Sure.

Preet Bharara:

Based on the three hours plus of argument and your observations and reading of the tea leaves, who’s going to come out where you think and how’s this going to unfold ultimately? And then I have to ask you the question because everyone wants to know the answer, this opinion or this set of opinions, that’s not going to come out before the end of June, is it?

Jack Goldsmith:

It won’t come out until probably the last day of the term, I would think.

Preet Bharara:

Okay. I mean, I see some people making optimistic predictions. But based on these arguments, does it strike you that there’s going to be some complexity and multiple opinions here?

Jack Goldsmith:

It’s conceivable that the Court would just say, “No immunity, we reject the immunity argument and we remand,” but saying nothing else.

Preet Bharara:

Yeah, remand just means sending it back to the district court.

Jack Goldsmith:

Yes. So they could just address the narrow question before them in the question presented, reject Trump’s extreme argument, write a 10-page opinion and remand. I do not think that will happen the vast majority because that would leave open all of these questions that the Court is worried about in terms of the implications for the presidency.

And the Court may never have a chance to address these issues again, this is one of the problems with these intermittent strange executive power opinions is the court, it gets a shot at this every 30 or 40 years and then whatever it says there, it’s going to guide the executive branch and the court is worried about that. And once you get into the complexities of the case, which is where the justices were living today in the oral argument, I don’t think it’s easy to write the opinion in a way that rejects Trump’s immunity arguments but also protects presidential prerogatives.

So I think it will take a lot of work and a lot of judicial statesmanship and judgment to try to draw those lines. I think if I had to guess that the chief justice will write the opinion, my read on him today was that he didn’t say much but he did say suggested to me that he thought that there were some over-broad statements in the Court of Appeals decision that needed to be cleaned up about basically the Court of Appeals decision said below that if a president is alleged to have committed a crime, then that means he can’t be immune for the crime. And he pushed Dreeben on that and it was a serious blunder by the Court of Appeals.

Preet Bharara:

There was a point there that if the threshold is allegation, that a little bit gives too much power to the worrisome prosecutor and the grand jury.

Jack Goldsmith:

Way too much power to a prosecutor. Basically, it means that presidential immunity would turn on a prosecutor’s ability to commit to grand jury, which is not necessarily the hardest thing to do. I don’t need to tell you.

So anyway, I think that the Court’s going to have to address two big questions, and I think it will address two big questions in some form. There are many variations. I think will reject the claim of immunity for criminal immunity for official acts. I think the majority of the court will reject that. Again, this is tea leaves. Who knows what they’re going to do?

Preet Bharara:

But you know you’re as good at this as anybody. That’s why we’re asking you.

Jack Goldsmith:

There are two important issues that came out in the oral argument that I think it needs to address. It is going to have to say something about where you draw the line between public and private acts with the official acts of the president and the private acts of the president. And the court was seemed drawn to a Court of Appeals decision in which written by Judge Srinivasan in the DC Circuit joined by Judge Katz. And that’s a pretty good combination of smart judges from both sides of the ideological spectrum. It’s probably the best opinion I’ve seen on official acts, and it came in a context closely related to this one. I think the court will say something about that distinction.

And it’s also going to need to say something about a point that we haven’t discussed yet, and that is… And this is something that the government basically acknowledged might be appropriate in their brief, that the president doesn’t get immunity, but there might need to be a separation of powers analysis to see whether the underlying statutes apply to the president in certain circumstances and whether that application unduly burdens the presidency.

And I think the court talked a lot. The Office of Legal Counsel has written about that a lot in the executive branch context, and the court talked about those opinions a lot. I think the court will provide guidance on that question as well.

Preet Bharara:

Wait, so can we pause on that? Because I thought I heard someone making what seems to be an extreme argument that unless a statute explicitly refers to its applicability to the president, that it doesn’t apply to the president. I think it was Amy Coney Barrett, but I could be wrong, who pointed out that there may be two or three statutes in the whole code that make any reference to the presidency. So does that make any sense?

Jack Goldsmith:

Well, yes and no. It was Justice Barrett who said that there are Supreme Court precedents not in the criminal context that suggest that a generally worded statute in certain contexts doesn’t apply to the president unless it explicitly says so. The Justice Department has taken those Supreme Court cases and argued for a broader rule, and sometimes that broader rule does sound like the argument you think is surprising, namely that unless the criminal statute says the president is covered, the president isn’t covered.

Preet Bharara:

Why shouldn’t the presumption be the other way?

Jack Goldsmith:

Because the reason for the rule is a constitutional avoidance, i.e., we don’t want these statutes to be applied in a way that burdens the Article Two prerogatives of the president. That’s one of the core bases for the rule. So it gets back to the same concern we’ve been talking about, how do these statutes apply and will their application to the president?

Preet Bharara:

But it’s confusing even to me as a lawyer, why if you already have as a premise based on the OLC opinions, essentially immunity from criminal prosecution, no matter what the statute is during the time you’re in the presidency does not confer upon you enough protection for the people who need the full attention of the commander-in-chief, such that you don’t have to engage in this other analysis that you’re mentioning.

Jack Goldsmith:

I don’t think so, but for the very reasons we’ve been discussing. Because even if you can’t be indicted and prosecuted while in office, if you can be indicted and prosecuted after office-

Preet Bharara:

There’s a later threat. But that’s a weaker concern, is it not?

Jack Goldsmith:

I think it’s the same concern. Again, we’re just talking. The immunity concern just blocks the application of these statutes, period. Let me just clarify something. There are two ways of looking at the statutory construction rule. One is the statutes just don’t apply to the president, the criminal statutes, unless they explicitly named the president.

To be clear, I do not think the court is going to say that. A few justices floated that. There are a few Office of Legal Counsel opinions that say that. That is not going to be accepted, in my opinion. It’s too broad for the reasons Justice Barrett said. It’s an undisciplined rule that would basically effectively give the president immunity until Congress reenacted all the criminal code to apply to him.

But there’s a second form of the OLC argument that was basically offered by Dreeben and the Special Counsel in their briefs, which is you do a more fine-grained as applied application of principle of the statutory construction that can take into account whether the president would be burdened by the application of this statute. And if it would plausibly burden the president by applying the statute, then the statute wouldn’t apply to the president. That is an argument essentially that the special counsel made and that the court seemed attracted to in some respects today.

And anyway, that’s what they’re going to have to opine on. That’s the second big issue I think that they will opine on. Does that make sense?

Preet Bharara:

It does. I’m just wondering if there’s a distinction between two different kinds of burden. There’s the burden that I understood was at the heart of the OLC opinions about not being able to be prosecuted while you’re commander-in-chief. That’s the burden of attention and distraction versus a burden that goes more to giving a president and the people around him or her wide berth to do that which he or she thinks is right for the country. Those are different, are they not? And are they of different degree too?

Jack Goldsmith:

Yeah, they’re a different degree. One is about not wanting to, as you say, distract the president from conducting the presidency. The other is about not wanting to violate the president’s constitutional prerogatives by having vaguely worded statutes apply to his everyday behavior.

And so this is a central problem in this case. We talked about it under the immunity context, but the same basic set of trade-offs comes up when you’re constructing the underlying statutes to see if they apply to the president. And I do think the court is going to opine on what the separation of powers principles are in figuring out how these statutes, the obstruction of justice statute is very broadly worded.

And the president might do lots of things with “corrupt intent” to interfere with a proceeding. And if that statute just applies full stop to the president, you could cover a whole bunch of presidential action and the court will be worried about that. And so I’m suggesting that they won’t get at that issue through the broad immunity cloak. They’ll get to it in a more narrow refined grained as applied approach. And that’s basically what Dreeben was arguing for in the end, and it was in his brief as well.

Preet Bharara:

Here’s a question that might arise because it just arose in my head. This is all well and good. Why are we leaving this question that goes to separation of powers, all sorts of other fundamental issues in our democracy, constitutional issues, statutory issues? Why are we now having to deal with this in 2024 with a particular set of justices, these nine, as opposed to having thought about this in the text and structure of the Constitution itself?

And I know partly your answer is going to be, well, the founders relied on the arguably naive ideal that a scoundrel wouldn’t be elected president and we wouldn’t be in this position. But is this something that could be resolvable or could have been resolvable and balanced properly in the Constitution itself?

Jack Goldsmith:

Yeah, it could have been. They could have come up with a rule if they wanted to. They could have established presidential immunity from prosecution, which they didn’t do. This is a very fundamental problem with executive power that has been present since the beginning of the nation and it’s just never been as bad as it is now. And that is the president wills the executive power, which means he controls the executive branch, which means he can do abusive things in the course of his legitimate, very broad and very robust legitimate activities.

And the framers simply did not address this question. They did not think down to the level of detail in my judgment about how this particular issue should come out. They weren’t thinking about how criminal laws generally worded that might apply to the president might burden the president’s executive power and take care of power.

And I don’t think that there’s any way the court really could have gotten at this issue in the past because it just hasn’t come up. I mean, they’ve barely discussed this principle of statutory interpretation in the civil context, this rule that certain civil statutes don’t apply to the president because he’s not named.

I don’t think there’s anyone to blame here except President Trump in terms of institutions. Trump is just as he did-

Preet Bharara:

I’m on board with that.

Jack Goldsmith:

Trump, as he did throughout his presidency and throughout his post-presidency, he has shown that if you’re willing to do things that were considered out bounds, whether legal or moral, and if you’re willing to make arguments that are shameless and that were considered out bounds just weren’t accepted as a normative matter, that it turns out there are lots and lots and lots of uncertainties in the scope of how we regulate the presidency.

And this is an extremely difficult opinion to write. And I think it’s bound to be an unsatisfactory opinion because these lines are, they’re very, very hard to draw as we’ve been struggling with them today. I just want to insist it’s really not an easy issue.

Preet Bharara:

This is not going to be like Section 3 of the 14th Amendment. We saw unanimity. This is going to be something that will take some time to parse.

Jack Goldsmith:

Yes, it’s not going to come out quickly because first of all, there were a range of views by the justices expressed today. I imagine, I’m sure the chief will try to get as much consensus as he can and try to minimize the concurring and dissenting opinions. But this is going to be, and again, I am pretty confident he’ll take the case and try to draw to craft an opinion that rejects Trump’s broad arguments out of hand without seeming to favor Trump, but also without burdening the presidency. And I don’t envy him or his clerks because it’s a very difficult set of lines to draw and the court has never really confronted this set of issues.

Preet Bharara:

Final question, just take a minute. The court gets a lot of attention in a lot of different ways. There’s an ongoing trial in which Donald Trump is the defendant in Manhattan criminal court, and yet the cable channels today and many other outlets as well talked about the Supreme Court case, talked about the historic importance of it, carry the oral arguments live via audio. How big a deal is this case?

Jack Goldsmith:

I think that it will prove to be one of the most consequential cases of presidential power ever. It’s a very, very big deal. It’s a big deal. Obviously, it’s a big deal for how you think about the rule of law and our democracy, how you think we should as a country deal with Trump’s abusive actions. It’s a huge deal for that. It’s potentially huge for the election, but the thing I focus on is it’s massively consequential for the presidency going forward. There are going to be a whole bunch of issues here that invariably are going to be addressed that have never been addressed before.

And depending on how it comes out, it could have good or bad impacts on the executive, depending on what you think good and bad is in this context.

Preet Bharara:

Jack Goldsmith, thank you so much for your time, for your insight and for this great conversation.

Jack Goldsmith:

Thank you, Preet.

BUTTON

Preet Bharara:

To end the show this week, I want to say something about transparency. After a full jury was seated last Friday, Trump’s trial in Manhattan continued this week. Many, many people were commenting on the inaccessibility of the supposedly public trial, myself included. It’s not being broadcast on TV nor is there a live audio feed, nor are there real-time transcripts. The courtroom is small. You must meet very specific requirements to be allowed in. And even those members of the media who are allowed in can’t all fit in the courtroom, relegating many of them to an overflow area.

On top of all of that, the cost of getting a real-time transcript is enormous. There’s several dollars a page and every day’s transcript runs to hundreds of pages. So those following the trial like I am have been frustrated, but there’s good news. On Monday, the New York Court announced that as opening statements commenced that day, daily trial transcripts would be made available to the public before the end of the following day. That’s abnormal for the courts, but this is somewhat of an abnormal case, and so I commend them for this decision. It’s not real time, but it’s something.

Chief Administrative Judge Zayas, who made the decision said, “This measure is in the interest of the public good and aligns with the court system’s commitment to judicial transparency and its ongoing efforts to enhance public access to and understanding of the courts and the justice system.” This is a historic trial and one that every single person in the country should have access to if they want. I think it’s important for people to be able to read the witness testimony, the direct examinations, and the cross-examinations for themselves and not have them always filter through the lens of pundits.

That’s the best way to ensure people trust the court, trust the process, and trust the verdict that’s ultimately reached. Donald J. Trump was our president and he’s running to achieve that position again, and now he gets not one day in court, but likely many weeks of court and the public should pay attention to what is said. If you want to read any of the trial materials yourself, check out the link in the show notes to this episode. As always, stay informed and stay tuned.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Jack Goldsmith. 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 #AskPreet. You can also now reach me on Threads, or you can call and leave me a message at 669-247-7338. That’s 669-24PREET, 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 audio producer is Nat Weiner. And the CAFE team is Matthew Billy, Jake Kaplan, and Claudia Hernández. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay Tuned.