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Legal expert reacts to today’s Supreme Court ruling on presidential immunity

AILSA CHANG, HOST:

Earlier today, the Supreme Court issued its most anticipated decision of the term, expanding the power of the presidency and calling into question whether former President Trump will ever face a trial in federal court for allegedly attempting to overturn the 2020 election. In a 6-3 decision along ideological lines, the court ruled that presidents have absolute immunity for their core constitutional powers and are entitled to a presumption of immunity for other official acts. But the court ruled that presidents do not have immunity for unofficial acts.

So how will today's ruling impact Trump's federal election interference case, one of the three remaining criminal cases against Donald Trump? Well, to help us answer that question, we're joined now by constitutional law expert and law professor Kim Wehle. Welcome.

KIM WEHLE: Great to be here.

CHANG: Great to have you. OK, so before we get into the guts of this ruling, just first give me your initial reaction to the court's decision here.

WEHLE: Well, I'm not surprised that the court ruled for immunity. They wouldn't have taken this case and they wouldn't have framed it so broadly if they weren't going to manufacture, you know, a new part of the Constitution, essentially. But I was surprised at how close to the line of absolute immunity. It's very hard to see what is still left of criminal liability in the rule of law for presidents moving forward under the very loose test that the court established in its majority opinion today.

CHANG: Very interesting. Let's talk more about that because this case - I mean, the whole reason it ended up before the Supreme Court is because Trump had tried to get one of the indictments against him dismissed based on presidential immunity. We're talking about the four federal counts related to his alleged attempts to overturn the 2020 election. So what does this ruling mean for the Justice Department's ability to even proceed with this case against Trump?

WEHLE: Well, the court not only set out that test, but it had a few caveats. One is that the immunity doesn't just mean dismissal of the counts. The immunity goes to the actual evidence. That is, the jury cannot hear evidence that falls within the scope of immunity. So, for example, the justice has said for sure communications with the Department of Justice are absolutely immune.

So I think Jack Smith's team have to now go back and look at all the evidence that it gathered to support the four counts and that it submitted to the grand jury and decide if you take the stuff off the table that the Supreme Court said is now immune, do we still have enough to go forward? If they decide they do, then it would go to Judge Chutkan, the district court judge, to decide, of that remaining evidence, what of it is actually also immune, with Donald Trump arguing that it's probably all immune because he was still president when he took these actions on. And then that would be appealed.

The other, I think, big wrinkle is the court said that motive is irrelevant. So the scope is very broad in that it's official if it's technically taken as president, rather than say, OK, I'm talking to my Justice Department to direct them to investigate a political rival. That would be a motive versus...

CHANG: Right.

WEHLE: ...I'm talking to my Justice Department to have them investigate terrorism, which would be within the scope, I think, regular people would think is legitimate.

CHANG: State of mind is not relevant. OK, so what about the case against Trump brought by prosecutors in Fulton County, Ga.? - because that case is also about election interference. How much is that case going to be impacted by this ruling?

WEHLE: I think because he was still president, you know, the evidence relating to Donald Trump's speeches about upending the election, his communications with state officials and others - the court said maybe communications with state officials could be unofficial. But I think that is all going to be now parsed. It has to be parsed by the prosecutors. And it would have to be parsed by the judges in Georgia. And I think ultimately the Supreme Court has given itself the authority to decide on, you know, a later appeal what falls within and outside the scope of this new immunity doctrine that it just created for Article 2 of the Constitution.

CHANG: I mean, the larger question is, you know, whether a president even enjoys immunity is based on whether the actions of that president are considered official or unofficial, right? So how much did this court lay out where is the line between official and unofficial acts exactly?

WEHLE: Well, they said if it's specific in Article 2 of the Constitution, then it would be core. So it talked about the pardon power, which is my next book that comes out in September.

CHANG: (Laughter).

WEHLE: OK, if the pardon - if you pardon in exchange for something that maybe even is illegal, the court suggests that would still be immune from any prosecution. It talks about, as I mentioned, communications with the Justice Department, says pressuring Mike Pence to not certify an election - that would be immune and official. But to the extent to which what Mike Pence was doing was Senate-oriented, legislative, maybe it's unofficial.

So, Ailsa, this is a real quagmire. The court, you know, opened up a big can of worms that these trial judges are going to have to resolve. And I think what it creates down the line is a chilling effect. It's such a complicated scenario now that even if a president really does do something that shocks the conscience, prosecutors are going to have to say, hey. Is this even worth bringing...

CHANG: Yeah.

WEHLE: ...Even if we're absolutely sure this is a kind of thing that should be prosecuted? - 'cause this immunity doctrine...

CHANG: Right.

WEHLE: ...Is so hard to overcome now.

CHANG: It's not even just a line between what is official and unofficial. There's also the question of, what does this presumption mean? Like, this ruling says a president has presumptive immunity for official acts, including acts within the outer perimeter of a president's official duties. How difficult do you think it will be for prosecutors to overcome a presumption of immunity? Like, how do you overcome that presumption?

WEHLE: Yeah, that's not entirely clear. Sure, yeah, presumption means you get the benefit of the doubt. We're going to treat the president as acting in good faith. And the justification for doing that, the majority says, is we cannot assume prosecutors elect in good faith. We need to give the president this benefit of the doubt 'cause otherwise, they'll have rogue prosecutors.

But generally, under the law, presumption means you have to have super-duper evidence. You have to really show that this is not official conduct. And I think there's an argument that pretty much anything a president does, so long as they're still technically president and in the Oval Office and talking to other federal government officials - that is off limits for any kind of legal accountability. So Justice Sotomayor's dissent...

CHANG: Can we...

WEHLE: ...Saying this creates a king in the White House...

CHANG: Yes.

WEHLE: ...I don't think is hyperbole.

CHANG: Let me talk about that dissent because Justice Sotomayor imagines scenarios like future presidents ordering assassinations of political rivals, organizing military coups, taking bribes in exchange for presidential pardons. What do you make of those hypotheticals? Are they far-fetched, or there's a glimmer of possibility there?

WEHLE: Yeah, I do think there is a glimmer of possibility. I don't think they're far-fetched. The majority sort of says they're far-fetched. But remember; you know, we've gone this far in our constitutional history without immunity for presidents. It hasn't had a chilling effect. Presidents know there are boundaries. There are lines. The court created it in response to January 6, essentially gave, you know, a reward for January 6, for that kind of activity. So I think what we can see logically is something more egregious down the line. It's now greenlighting presidents to cross boundaries.

And so we'll get along again so long as you're doing it officially, which is a lot of power. As long as you're using the massive powers of the office, it's going to be very hard to challenge that or even, as I said, to use that evidence to create a case. It's a very, very pro-presidential power ruling and ultimately pro-Donald Trump ruling.

CHANG: That is Kim Wehle. She's a law professor at the University of Baltimore. Thank you so much.

WEHLE: Thanks for having me.

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Ailsa Chang is an award-winning journalist who hosts All Things Considered along with Ari Shapiro, Audie Cornish, and Mary Louise Kelly. She landed in public radio after practicing law for a few years.