There are a lot of questions about the Supreme Court’s ruling this week on presidential immunity. Quinnipiac University law professor John Pavia weighs in.
Mike Hydeck: An unprecedented ruling this week from the Supreme Court regarding presidential immunity. Does it shield former President Trump from criminal prosecution, and what does it mean for future presidents? Joining me now is Quinnipiac Law Professor John Pavia. Professor Pavia, thanks for joining us. In her dissent from the bench, Democratically appointed Justice Sonia Sotomayor said she feels fears for our democracy. Does this ruling on presidential immunity eliminate part of our check and balance system like it sounds from her remarks?
John Pavia: No, it doesn't remove it. But I'll tell you, it brings a lot into question because what they've done is they've really now redefined the role and the authority of the president by making a lot of it what's in the middle, because what's on the extremes are pretty obvious, right? So, on the one hand, they created things where there's absolute immunity, those core constitutional powers under Article Two of the President, Commander in Chief of the Armed Forces, certain appointments that don't need any confirmation, and then those things that are clearly unofficial. You know, you can't rob a bank. You really can't murder anybody, but everything else in between, even, as they say, on the outer perimeter of an official act is going to have presumptive immunity. And so it's going to be up to each and every case for the trial judge to first determine whether or not something was an official act or not. And so there's a whole body of law now that's going to be created over this on this issue, over the next, probably couple of decades.
Mike Hydeck: It kind of reminds you of President Clinton's prosecution. It depends on what your definition of "is" is, remember that? Now we're going to see, what's the definition of "an official act?" How can they legally define something like that? It seems as if it's very gray and very squishy.
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John Pavia: I've heard this question asked 1,000, I've been asked it, you know, many times over the last few days. What's an official act and what's not an official act, that's really, and I mean this, there's going to be a whole body of law. So, as an analogy, some years ago, there was a case decided against Governor of Virginia, Governor McDonnell, and that was a case where he and his wife got a bunch of bunch of things, bunch of gratuities, from a person who wanted to have the universities in the State of Virginia actually do research to get a drug approved. He got convicted on bribery statutes, quid pro quo. Goes to the Supreme Court. Supreme Court finds that you have to create an official, you have to create an absolute nexus between the thing of value and the official act. And the official act got a very, very narrow definition. So now there has been so many political figures and government figures who were convicted under the previous statute that had their convictions overturned because there's now a whole new body of law on an official act in the context of quid pro quo. In this case, you're going to have, it's going to be 20 years of litigation, of trial courts, appellate courts, and now up to the Supreme Court, or rather, at some time in the future, up to the Supreme Court. And it is going to be a whole body of law that's now going to be generated over what's an official act for the president.
Mike Hydeck: So now former President Trump called it a victory for the Constitution. His lawyers say this can now stop new administrations from prosecuting previous presidents. Is that true?
John Pavia: Well, I don't know if it's a victory for the Constitution. It's definitely a victory for the presidential power. And I do think that going forward, anybody thinking about prosecuting the president for anything, or bringing any kind of charges against him in a criminal context is going to think a lot longer and harder than there already had been because this case makes it really, really difficult, because anything that's even tangentially related to an official act, not only can you not prosecute the president for it, but trying to go after his motivation on what his, why he made a decision. Let's say he enters into some new trade agreement with another country and maybe he has some financial interest in a business that's over there. You're not going to be able to really get to it, because that evidence is going to be sort of off the table and off limits.
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Mike Hydeck: So as the Commander in Chief, you mentioned this just a minute ago, of the armed forces, can a president actually order SEAL Team Six to murder a rival? Justice Sotomayor actually said that during deliberations. Is that just hyperbole, do you think?
John Pavia: Yeah, I mean. Look, I think she's using an extreme example to illustrate what the problem is with this decision. And so, can he do it? Look, a president can order a lot of things. Is it a crime? It could be. And like I said, anybody who's out there on television or radio right now are screaming, saying that they know the answer to this question, they don't, because it is really something that's going to be litigated over time, and it's going to be a long time. You know, there's other things in this decision that are going to actually come quicker than that decision and bring that issue to a close, and that is Clarence Thomas' you know. In his concurring opinion, he talks about whether or not Jack Smith was actually appointed properly, whether he could be prosecuting the president. I think that issue, especially because of that concurring opinion is going to come and it's going to come to a head fairly quickly.
Mike Hydeck: Okay, so I got a little less than a minute. This goes back to a lower court now, right? What happens next?
John Pavia: So on whether or not Jack Smith can go forward with his case and which charges can go forward, that's going to go back down to the trial judge. And there's going to be a determination at the trial court level of what's an official act, what's not an official act, and what can stay in the indictment, and what he can move forward with in prosecution. And even then, you know, there's nothing to say that the president or former President Trump doesn't bring an appeal from that decision. So to the question, can he get tried before the election? There's no way.
Mike Hydeck: Professor John Pavia from Quinnipiac, we appreciate your time and your expertise. Certainly a lot to follow. We hope to have you back in the coming months. We appreciate it.
John Pavia: Thank you.
