So last week of the Supreme Court in the United States, we were dealing with the issue of the president being taken off the ballot. And based on the questions that came at oral argument and the briefing that was done, I think we’re pretty confident that we’re going to see a victory in that case. Maybe that the president’s not an officer under the United States or an officer of the United States, so that he’s not subject to the 14th Amendment.

Could be that it’s not self executing. In other words, there need to be some kind of enabling legislation, whichever way they go. We outlined both of those in our brief, and we’ve gotten a lot of kudos on that brief. I’m not saying that to brag, by the way, but we filed a lot of briefs on this. Law professor at my alma mater at Emory said he keeps records of these things, said this was the 24th case where I was counsel of record for a party.

24th case. And he wrote a very nice thing to the faculty at my alma mater saying, the way they laid this thing out, you had Justice Brown, Jackson, as well as Justice Kagan, Justice Sotomayor asking questions right off of what we argued, which is important. But there’s another issue coming up to the Supreme Court. That was last week. This is this week, and now it is a requirement that the DC circuit ruled against the president on the issue of presidential immunity.

They said that what they will do, the clerk is directed to withhold the issuance of a mandate through February Twelveth. Now, let’s first describe, Andy. What is a mandate? Mandate is an order from the appellate court to the trial court to the district court. Here is our opinion. Here is our ruling. Now you follow it and do it. And this would mean that Judge Chutkin, if the mandate were issued, would go ahead then and put the case on the trial calendar again, which she had previously and had taken it off pending the ruling of the court of appeals.

Okay. So that issue of a mandate will be stayed so long as today. President Trump’s legal team will file a stay of the district court, of the Court of Appeals decision and say that we’re following up with that. A petition for search. Right. Will, can we check to see if during this broadcast live? I’m sure they’re going to. Well, I shouldn’t say I’m sure I don’t know that, but I would think they’re going to do it.

Now, the issue of presidential immunity is not an easy one. It’s a complex case. And, Harry, when we talk about presidential immunity, let’s define what we’re talking about for people. The quintessential issue that we have to look at with respect to presidential immunity is whether or not the president of the United States can be held liable subsequent to his resignation or when he becomes a private citizen, whether or not he can be held liable for official acts during his presidency.

And I think one of the real issues that should be explored on appeal, should President Trump decide to appeal his case to the Supreme Court, is whether or not his immunity as president continues after he’s left the presidency. And I think the appellate court, that is the DC Circuit Court of appeals, they offered the wrong test. So at the end of the day, the issue is not necessarily whether President Trump gets immunity with respect to all of challenged acts, but whether or not the appellate court has offered the correct test of whether he gets immunity or not.

Here’s what I would do if I was, I’m not representing him in this. I suspect they’re going to go for the absolute immunity on the entire case to get that adjudicated. But if I’m looking at process, this is what I would say. To me, there’s clear error in this case. When the court said at twelve one on January 20, presidential immunity ceases. In other words, it doesn’t continue into his post presidency, which totally defeats the point of presidential immunity, because now it subjects Presidents Carter, Presidents Bush, President Clinton, President Obama, President Trump, and now President Biden to post White House service lawsuits for opinions or situations you disagreed with.

So the immunity should stay in place longer. Now, does that end the case? No, because then they would have to determine whether that was an official act, but that would be a separate proceeding, and that would take time. And if the idea in this strategy, and we’re talking about legal strategy here for President Trump is to delay this, because it’s getting awful close to an election and he’s clearly the leading republican candidate, and then have it adjudicated afterwards, or if he’s president, get it dismissed.

I think that would be the strategy I would utilize. Yeah, because it is ridiculous for this lower court to say you can only invoke presidential immunity while you’re in office. That doesn’t make sense, that immunity follows you for any official acts you did while in office. So you’re exactly right. That’s what needs to be attacked. And then if it draws out the other issues longer, so be it.

And that’s actually good for President Trump. Andy, you looked at two issues. You were concerned about that one, and also the burden shifting that you came into this with know, we’re going to presume that everything in the indictment was true. Yes. That was another statement that was made in the court of appeals opinion that I think is wrong for purposes of the adjudication of the case. They said, we assume that everything that is alleged in the indictment is true, and that’s not what the law is.

The law is those are simply charges of the grand jury. They’re simply allegations that are made by the grand jury. They’re not true. As a matter of fact, the government has to prove the truth of those, each and every one, beyond a reasonable doubt to the satisfaction of a jury. And that’s another statement that was made by this panel consisting of judges Henderson, Childs and pan that I think was wrong and that should be reviewed by the Supreme Court.

The question, I guess, Harry, is on an issue like this, where’s the court likely to go? And on presidential immunity, it’s been a mixed bag, to be blunt. I think that is correct. And I suspect if President Trump’s lawyers opt for the strategy that you recommend, Jay, they would likely prevail, at least in terms of delaying the case so that it would not affect the 2024 presidential election.

On the other hand, if they decide to go for the full enchilada and basically claim that the district court is absolutely wrong, that the president is entitled to absolute immunity, I think they are likely to lose, and probably lose quickly, thereby accelerating the trial on the underlying issues. And so I think at the end of the day, President Trump’s lawyers would be wise to accept Jay Secello’s advice.

Logan, you have been in our pre meeting saying, and I think this is an important point. Explain this so people understand why it impacts them. Yeah. Why does it impact them? And why is it not just the same as every other Trump lawsuit, or you get a little burned out by all of it. I’ve been burned out by it. I feel like our audience probably is. They just see another lawsuit pop up, they see another ruling, they see another indictment, and it’s just at some point, you’re just exhausted by it.

But it’s important. There are things that are important, and it does really trickle down to everyone. This one affects the operation of the presidency. So if you’re a Republican, a Democrat, if you’re for Trump, if you’re for Biden, if you’re for RFK, whoever you’re for, it affects everybody. Because what this says is that they cannot make decisions free of lawsuit the moment they’re out of office. And that possibly is the worst possible decision.

I think the biggest mistake the DC court of Appeals made was that determination. Yeah. Because now you have any sitting president triple checking, double check, you know, quadruple checking every decision they make. Once I’m not president any longer, does this set me up for liability and criminal liability? And so all of our past presidents, Obama, all of them, they are subject to this. If the court gets it wrong, they can have claims brought against them just as easily.

Exactly. Andy. This is so for the people that are listening. And why does it matter to you for our presidency to function properly under our constitutional republic? This immunity is necessary? Yes. You can’t have a president constrained by having to think about whether or not he or she is going to be prosecuted criminally or attacked civilly in a case after their presidency is over because of a decision that they made during the presidency that is determined afterward not to have been an official act.

You’ve got to have that presidential immunity survive so that citizen Biden or citizen Trump is not such that they are not clothed with presidential immunity after the termination of their term of office. Jay? Yeah, I think this is, look, I just got a note from a friend of mine, very well respected lawyer, on another case, Logan, I won’t get into it, where we filed a brief, and this was a lawyer that represents groups that are more left to center and politics are more left to center.

And his note to me was, I am so thrilled we meet again on this important case. These issues that we engage in, many of which we don’t even talk about, like the administration of criminal justice system, are critical to how we function as a society. .

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