Former January 6th investigators give Trump’s presidential immunity ruling predictions

Well, tomorrow the Supreme Court will rule on one of Donald Trump's delay tactics to escape accountability for trying to steal the 2020 election. The justices are finally set to release their decision on the scope of presidential immunity, saying this crucial case saving this crucial case until the very last day of their term. Now, Trump's federal election interference trial has been on hold since the Supreme Court agreed to hear the case in February. The delay has made it almost certain that Trump will not face a jury before the 2024 election. Goodness, I got questions. People got answers. Joining us now with those answers is Tim Hafey, the former lead investigator on the January 6 House Select Committee. He also served as a United States Attorney for the Western District of Virginia. And Marcus Childress, also a former January 6th committee investigator. And Tim, I hear you were Marcus boss. OK, Marcus is in the box down here. Hi, Marcus. Hope you're doing well. Hi, Tim. So can someone just explain for us here at the table and the folks at home, what we what we can expect tomorrow on the Supreme Court? It's not just immunity that they're gonna rule on, but that's the one that we're looking for. Marcus. What what what say you? So I, I'm really interested that I'm sure Tim is on on the immunity hearing. I, I expect that we're not going to have a decision that says that there's absolute immunity for presidents, but the real line is going to be what are the lines that the Supreme Court draws for the test that the lower court has to follow? If we look at the blessing game opinion, which is another January 6th opinion for, for Trump, for example, maybe they say that the lower court has to determine what's an official act that's prosecutable. The reason why this is important is because there are clear facts that show that President Trump was not acting as the president the time former President Trump, he was acting as a campaign, such as when he called Secretary of State in Georgia or when he was sending the fake electors to, to the city to DC. But it's the, it's the facts where he's maybe putting pressure on Vice President Pence or putting pressure on the DOJ where there's argument that those are official acts that should not be prosecutable. So I, I'm really curious to see how the court draws those lines for the lower court. And then I'll be even more curious to see how the lower court actually acts on the decision that we get from the Supreme Court tomorrow. It's it's interesting, Tim, this, this idea that hovers around the whether Donald Trump was acting in his official capacity and what what does that really look like in the scope of what a president does in the in a 24 hour period? Let's listen to some conversation between Justice Elena Kagan and Trump's attorney Sauer. The defendant asked the Arizona House Speaker to call the legislature into session to hold a hearing based on their claims of election fraud. Absolutely. An official act for the president to communicate with state officials on a matter of enormous federal interest and concern, That's an official act. Well, attempting to defend the integrity of the election. I mean, that's the defense. The allegation is that he was attempting to overthrow an election. So I just started a very basic point, Tim. I cannot recall at any point in American history where president of the United States calls state officials about his election. I mean, you have other people who would do that. So there was clearly Donald Trump using his office to try to as, as Elena Kagan says, attempt to overthrow an election. What how, how do we take this, this aspect of what this case really hinges on official acts? Yeah, it's a good question, Michael. Elections, as you know, are really the function of state government. It states under our constitutional system that manage elections. And the Trump lawyer argument is that the goal essentially makes this an official act, right? That the interest, the broad federal interest in the conduct of free and fair elections, it can't be simply that the goal is what determines whether something is an official act. There, the theory here from the special counsel, which I think is consistent with the evidence we found that the former president consistently stepped out of his official role, attempted to unduly and intentionally influence otherwise lawful proceedings without any evidence that there was actual election fraud and and propagated theories that had no basis. So I think Marcus is right that the Supreme Court here likely articulates some sort of standard that might separate what is immunized official conduct clearly within the the realm of what is appropriate for the President United States versus what isn't. Special counsel will present a lot of evidence that much of the conduct charge or all of it is outside. That then becomes a question for Judge Chuck in to sort out in some sort of pretrial proceeding before the trial begins. Simone, I have a question, but I want to know what your face is saying. Well, my face is just saying what? What would be an official act that would be covered? That is a crime because that's what we're talking about. We're talking about crimes being covered. And so in what universe is the Supreme Court saying now if you do this and you're the president, yeah, we're going to let that one go? I think it's time point. I think the Supreme Court will just want the lower court judge Chuck in to make those determinations on paper, right? So have the special counsels office put the evidence out to show that these crimes don't fall under official acts and then ghetto ruling that that makes the American public feel comfortable for the courts going before we even get to next. What I'm really also curious to see is if there's going to be a percurium or even a nine oh decision. I thought one of the most impactful parts of our committee under Times leadership was the bipartisan nature of and I think that gave our committee more credibility and in the public sphere. And when we saw with the Colorado case, right, it was a unanimous, if there was a lot of concurring opinions, there was it was a unanimous decision. We saw in the DC Circuit a percurium order of the court. I hope that the Supreme Court can do something similar tomorrow so that we're not sitting here next week talking about, you know, whether this was politically motivated or whether there might be some, some other motives with the decision that comes out. And so that's actually my, my honest hope when it comes to the institutions of our, of our country is that we can have some type of, you know, anatomy with the with the decision tomorrow. But I'm also not very hopeful about that as well. Well, especially Tim, because this isn't just about looking backwards. That would happen on January 6th in the run up to January 6th. It's about looking forward to this upcoming presidential election. I want you to take a listen. Former President Trump was asked repeatedly about accepting the results of this forthcoming election at the recent debate. Here's his answer. The question was, will you accept the results of the election regardless of who wins? Yes or no, please? If it's a fair and legal and good election, absolutely. I would have much rather accepted these, but the the fraud and everything else was ridiculous, not fraud that would have changed the outcome of the election. I think it is really telling him first he's asked about it three times. He was back to that answer three times. Also that he says if it's a fair and legal and good election, he can't answer this question. Yes or no. That's a completely circular response. I'll accept it if it's fair, which of course means he'll never accept it because he'll say it's not fair. There was no evidence in 2020 that the election was unfair, yet the president continues to say that it was and really tellingly raising money, lying to people, saying that it was. So you're exactly right. This decision not only has a huge impact retrospectively, but prospectively. It sets a standard that will be applied in the future. And to Simone's good question about what could be criminal, that's official. I think the court is worried about things like a president authorizing a drone strike right in his or her official capacity that results in a civilian death and there could be some subsequent criminal charge. I think you could see things like that be classified as immune because they are clearly done in official capacity with no intent to commit a crime. That's a pretty narrow universe though. So I think almost assuredly there will be some post Supreme Court litigation that keeps the special counsel's case alive. It's interesting to me, Marcus, where this decision puts everything else. Jennifer Rubin of the Washington Post, talking about the future of the trial, noted if Trump's January 6th trial speeds ahead as U.S. District Judge Tonya Chunkin, Chuckin will be seen as meddling in the election. If she holds off until after the election, it will be clear the Supreme Court already did Trump's bidding. We're in this, this space. I just don't know how Chief Justice Roberts allowed his court to be in this position in the 1st place. For someone who's talked about keeping out, as you know, called, we're the umpire. We want to call balls and strikes. We want to be separate from it. How do you see this off of this decision, this, this all going forward? Because I just, I think at the end of the day, the Supreme Court will have done Trump's bidding. So when this decision comes down, I, I expect there is going to be an evidentiary hearing of some sort. Tim touched on it a little bit earlier and, and I think it happened. It happens in a lot of cases that Tim and I have tried in our in our careers is, you know, if there's a question of fact of, you know, applying a legal standard to what fact should come in to the court. You have an evidentiary hearing where prosecutors will basically present the facts and proffers of what witnesses will bring certain facts in and how it supports the charges. And the court can make a ruling from that point on whether it's allowed to come in and for what purpose or whether it's limiting instructions. And so in in a way, at this evidentiary hearing could be a little bit more damning than a full trial because prosecutors are putting out all the facts that they feel are relevant for the trial. And you don't have to worry about tanning a jury pool. But I expect Judge Chuck in is going to move forward, probably applying whatever standard the Supreme Court puts out tomorrow, have an evidentiary hearing where she hears all the evidence and facts that the prosecutors want to have. And then she makes a ruling about what can come in and then for what purpose. And with the media, you know, everyone's sitting in there and it being live tweeted out, I mean, that can be a pretty historic evidence Cherry hearing that will happen before the election, even if you don't have a trial before the election. Well, stay tuned as they say, right Marcus Children, thank you guys so much. I appreciate you.