‘A moment of existential significance’: Luttig and Tribe discuss stakes of Trump’s immunity decision

Tomorrow is likely to be a remarkably important day, and our viewers need to understand the consequences. So, Professor Tribe, let me start with you. Many Supreme Court watchers pretty much predicted that the justices would wait until the fact. Judge Ludwig predicted the same thing. They would wait probably until the very last day of this term to issue its opinion on Trump's immunity claim. But it it didn't have to be this way. But what's your sense of the delay? What do you expect to happen? And what consequence do you expect to follow, regardless of what the Supreme Court's opinion may be? Well, thanks for having me on, Ali. It's quite clear that the court's delay was deliberate. They could have resolved the case by simply letting the extraordinarily comprehensive opinion of the DC Circuit stay unaffected. They could have agreed to leapfrog that case the way they do in another set of circumstances. They could have decided this case as far back as last December. The argument was over 60 days ago was on April 25th. They have slow walked. There's no reason to. Because the claim that any person in this country, president or not, has absolute immunity when he tries to overturn an election and prevent the transition of power is absurd. I can't imagine that the Supreme Court will take that position. Rather, what it is likely to do is muddy the waters by pointing out that just last week in the Fisher case, it put limits on the reach of the statute involving obstructing an official proceeding, which is one of the criminal statutes that the special counsel has invoked in his election interference indictments. It's not the only one. There are also statutes about defrauding the United States and stealing people's votes. But the obstruction statute, as the majority opinion by Chief Justice Roberts pointed out, is now not quite as broad reaching as the language would suggest. Justice Barrett and her brilliant dissenting opinion last Friday said that the court had to do textual flips over and over again acrobatics in order to avoid reading the word otherwise where it says otherwise, obstructing a proceeding to mean not otherwise, but by the same means. Now that's getting technical, but the bottom line is that there will be an open question after whatever the court decides tomorrow on the immunity issue. One open question that I think has been clear to the court ever since the day it heard argument in this case, which was the day after it heard argument in an important other case. The open question is whether the manipulation of electoral ballots and the interference with those ballots and the conspiracy to forge and alter electoral certificates is sufficiently like the evidence tampering that the Court says is the heart of the obstruction statute. Now, analogies are always difficult, and I can imagine the DC Circuit or Judge Chutkin on remand struggling with that question of resemblance. Whereas if Justice Barrett's position had prevailed and she was joined by Justices Sotomayor and Kagan, it would be an open and shut case that this did involve obstruction of an official proceeding. The other open question is going to be whether whatever immunity the Court finds for former presidents, and there might be immunity for some core exercise of presidential power like the pardon power, whatever immunity it finds is not going to cover 99% of what the president is charged with having done. And the task of separating the wheat from the chaff, identifying which things the president is charged with having done, avoid whatever immunity the court finds exists. That task could lead to further proceedings in the lower courts, further clarifying the virtual impossibility of trying the case to verdict before the election. But the silver lining, I'll try to keep this very short. The silver lining is that if there is a hearing in the lower court, that doesn't have to be a hearing that is held off for over 80 days the way Judge Chutkin said the trial would have to be held off. Even if she's given a green light, that hearing could occur next week. And at that hearing, which could continue through the election season, the evidence about what the president is charged for having done in the plot to overturn the election will be laid before the American people, who have undoubtedly either not seen or have forgotten the evidence gathered by the January 6 committee. And that would be the upsides of a rather complicated ruling. So this is this is good because now we're getting into some meat here and, and and Judge Ludig, who alerted me by the way, to your your article on this. Thank you judge for doing that. This is the work of judges and and lawyers to try and figure out. So Matthew Seligman, who co-authored the the brief that that Professor Tribe signed on to Judge Ludig has written in in it, no one disputes, wrote an opinion piece for MSNBC in which he said no one disputes that the electoral count is an official proceeding. And no one could deny that electoral certificates are, quote, records, documents, objects or other things used, End Quote, in the electoral count. So the only question is whether the defendant impaired the availability or integrity of the electoral certificates for use in the electoral count. If the defendant we're talking about is Donald Trump and, and Professor Tribe is correct that this hearing on this matter could go forward, what effect would that have on the totality of Donald Trump being held responsible for trying to overturn an election ally? You're exactly correct and as is Professor Tribe. On the larger point, though, the former president has corrupted America's democracy, Constitution, and the rule of law. And now, with the Supreme Court's almost interminable delay of the immunity decision, he's gotten away with it. America's democracy and the rule of law are the heart and soul of the nation. America's been the beacon of freedom and liberty to the world for almost 250 years now because of its democracy and the rule of law. And through his defiance of that democracy and the rule of law, Donald Trump is, I said previously, unsold the nation. The only redemption for this unsolding of America at this point is that Donald Trump at least be held accountable for what he has done. But the Supreme Court, as you and Professor Tribe are saying, has already effectively given him what he asked for, absolute immunity for his grave offenses. At this point, I have to doubt whether Donald Trump will ever be tried for his criminal offenses against the United States and the Constitution. Now, tomorrow, we'll know whether the Supreme Court even permits his trial for those offenses. But if it does, the court has already made a trial of the former president practically impossible. At best, Jack Smith will have to decide whether to ask for the trial to begin one month before the 2024 election. It would be impossible both to begin and end Donald Trump's trial before the November election. No prosecutor would want to straddle the election with the first trial of an American president in history who himself is a candidate for the presidency in that election. The politics of the moment will all but demand that Jack Smith forego trial before the election and until after the election. But I would urge Jack Smith in the strongest possible terms today not to yield to that cynical partisan politics and to bring this case on for trial even in September or October. Wow. In the in the name of and for the sake of American democracy, the Constitution and the rule of law, Judge, is there any chance that if, if Jack Smith hears this and takes your guidance on that, that Tanya Chutkin would allow that to happen? Yes. There's every chance in the world that Judge Chutkin would allow that to happen. Allie Professor Tribe, what's your sense of a trial that does that? Because for people like us, who, who, who want to see accountability and and for whom justice is paramount, it's a wild inconvenience to have a trial in the middle of an election, but it might feel like a little more justice. What's your sense of of having a trial that possibly straddles an election of the 1st president to ever face criminal interference, election interference charges put it mildly. It's not ideal. But I firmly agree with Judge Ludig, and I've said this myself publicly, Jack Smith should proceed to trial just as soon as the United States Supreme Court and Tonya Chuck can permit him to do so. The policy of the Justice Department not to initiate criminal investigations within two months of an election has no role here. First, because this is not a matter of initiating an investigation. It's a matter of holding a trial that in fact, was originally scheduled to be held back in March and that has been delayed for no good reason. Second, that this is not a standard situation in which convenience should make the slightest difference. As Judge Ludig says, American democracy and the rule of law and the survival of our constitutional Republic are all on the line. This is a moment of existential significance. Of course, I would urge Jack Smith to proceed to trial absolutely as soon as he can, not to scratch his head and wonder whether it looks good or not to have a trial straddling an election in which the criminal defendant already convicted on 34 felonies happens also to be the candidate for president. To allow him to use his candidacy as a get out of jail free card. Not only by assuring everyone that if he wins, he will find an attorney general who dismisses this case, but also by arranging it so that, oh gosh, it's inconvenient to hold a trial. Now I'm in the middle of campaigning. Would be a travesty. It would be the most outrageous example of justice delayed being justice denied. And it is not just justice for one individual, it's justice for the American people.