Subscribe
Share
Share
Embed
This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey Aughie.
J. Aughenbaugh: Hello Nia. How are you?
N. Rodgers: I'm good. How are you?
J. Aughenbaugh: Well, I'm always good because I get to talk about Supreme Court and Supreme Court rulings and also puncture the myth that apparently the sky is falling now.
N. Rodgers: It is the Summer of Scotus before the fall of death, I know this sound like.
J. Aughenbaugh: The fall of the American Empire.
N. Rodgers: Exactly. Calm down.
J. Aughenbaugh: Slow your role.
N. Rodgers: Exactly. Slow down their tutor. This is Summer Scotus '24 and we are on the last two cases. We saved the last two cases. We won't say best two cases because there have been a lot of really interesting cases.
J. Aughenbaugh: This term.
N. Rodgers: This term, but we saved the last two cases because they are of a kind. They go together.
J. Aughenbaugh: Yes, with all weather. With Fisher.
N. Rodgers: Let's start with Fisher.
J. Aughenbaugh: Yeah, Fisher versus the United States, though this was actually decided the last week of June, so what was the issue in this case, Nia, was whether or not prosecutors properly charged hundreds of January 6th 2021 defendants, the infamous depending on your perspective, riot, siege.
N. Rodgers: Siege.
J. Aughenbaugh: Yes.
N. Rodgers: What is it being called?
J. Aughenbaugh: Attempted coup, etc. Whether or not, a hundreds of January 6 defendants and for that matter, former President Trump under a law that was passed in response to the insurrection.
N. Rodgers: Sorry, that's the word I was looking for.
J. Aughenbaugh: Whether or not the prosecutors properly used a law that was passed in response to the Enron scandal for our listeners who may not be aware during the Bush 43 administration. Enron which was an energy company headquartered in Texas was accused by the federal government of a massive, if you will, securities fraud. By the time federal investigators showed up at their headquarters, Enron officials apparently had been spending weeks just shredding relevant documents.
N. Rodgers: If you want to see a good film on this, The Smartest Guys in the Room?
J. Aughenbaugh: Room, yes.
N. Rodgers: Is a good documentary on that. But anyway they've been getting rid of documents that would have shown all the stuff that they did.
J. Aughenbaugh: Yes.
N. Rodgers: Evidence. They'd been getting rid of evidence.
J. Aughenbaugh: What federal prosecutors did was they used this law in charging some of the January 6 defendants making the argument that their actions disrupted Congress's certification of President Biden's 2020 presidential election victory. Fisher, who was I believe a Pennsylvania cop or a retired Pennsylvania cop, went ahead and challenged him being indicted for violating that law and he actually won at the Supreme Court. The vote was 6-3 and it was a very odd if you will vote in if you will pattern, because it was five of the Conservatives plus Brown Jackson versus Coney Barrett who broke with the other Conservatives and Sotomayor and Kagan, and the majority opinion was written by Chief Justice John Roberts, so the Supreme Court threw out the charges against a former Pennsylvania police officer who entered the Capitol on January 6th. The Court ruled that the law that Fisher was charged with violating bars obstruction of an official proceeding, but it only applies to evidence tampering, such as the destruction of records or documents in official proceedings and guys if you ever want an example of textural analysis, read John Roberts majority opinion in this case because he said it is the sentence or clause before the one used by the prosecutors in this case that actually indicate that it's evidence tampering that one can be charged with. Not the actual disruption of an official if you will proceeding. That makes sense
N. Rodgers: From that Enron case it makes sense. If that's the word you're using.
J. Aughenbaugh: Yes.
N. Rodgers: Because theoretically the rioters did not get a hold of ballots. They didn't get a hold of the state ballots which were what Vice President Pence would have been counting. They would have been counting the delegates ballots in order to certify the election. They didn't get a hold of the physical documents. What they did was disrupt the observation of the counting.
J. Aughenbaugh: That's right.
N. Rodgers: Which is what Congress had gathered to do. They had gathered to observe the counting, so as long as they didn't touch those documents, they were not in violation of this law.
J. Aughenbaugh: That's right. That's what the Court majority said.
N. Rodgers: I understand that logic. I'm not in love with it, but I understand the logic. I think it's splitting hairs in the sense that what they were trying to do was disrupt accounting. It was by sheer dumb luck that they didn't get a hold of the documents and shred the documents that would have prevented, like I suspect that if they had known they needed to do that in order to stop the proceedings. Many of them would not. That's the answer. Year 2 is of the 300. You probably had 10 people in that group who actually knew what they really needed to be doing in order to disrupt the actual counting of the ballots. Everybody else was there for mayhem purposes, like they were there to disrupt.
J. Aughenbaugh: Not all of those protesters or insurrectionists were charged with violating this law. Slightly more than 300 were, but Nia this is a really good example of the Current Supreme Court and we saw this when we discussed the public corruption case. The name is escaping me. Do you recall, it was that mayor from Indiana?
J. Aughenbaugh: What was the name of that case? I'm scrolling through our notes right now.
N. Rodgers: Snyder VUS.
J. Aughenbaugh: But this is-
N. Rodgers: That's the bribery case. Is that the one you're talking about?
J. Aughenbaugh: Yeah. But this is another example-
N. Rodgers: It's a gratuity if it's after the fact, and it's not,
J. Aughenbaugh: But this is another example of this court sending a very clear message to federal prosecutors. Don't get creative with what charges you bring against people who you think did wrong.
N. Rodgers: Correct.
J. Aughenbaugh: Either you use the law as it was written, or you go back to Congress and you get a new law written, because this is a court that's very clear that we don't want a lot of creativity from our federal prosecutors. Heck, if you listen to our most recent podcast episode, they don't like a lot of creativity from below our federal court judges either.
N. Rodgers: Or really agents. They don't like creativity except musical and art realms.
J. Aughenbaugh: But this particular court had a very narrow interpretation of a federal criminal statute.
N. Rodgers: Well, and you just said something which I thought was interesting, go get a new law, but a new law would not be applied the directive law.
J. Aughenbaugh: That's right.
N. Rodgers: If what you don't like about this law is that people who disrupt actual congressional proceedings, could be punished in some way, then you need to write a law. You need to write a law that says, don't interrupt Congress in its work. Whatever that may be, committee meetings, floor votes, whatever else.
J. Aughenbaugh: If you have a specific concern going forward about protesters interrupting the counting of electoral college votes, then you need to rewrite the existing statutes concerning that particular process, and criminalize the behavior of those who might interrupt that process. Right?
N. Rodgers: Right.
J. Aughenbaugh: This is pretty clear.
N. Rodgers: There you go. That's how you fix it. If you're uber crabby about it. Now, that being said, which I agree with them, but it opens up a can of worms of, but some of these people have already served time, some of these people have already been incarcerated like there's a lot of mess to undo here if this is.
J. Aughenbaugh: Yeah, you're talking about slightly more than 300 of the January 6 protesters. Their cases are going to have to be either retried or their sentences reduced. It also means that more than likely two of the four counts of the indictment brought by special counsel, Jack Smith in former President Trump's Washington DC trial will more than likely have to be thrown out. Because two of those four charges were based on what I call the Enron Law. I've always known it as the Enron Law, because it was passed specifically to stop that behavior that we saw. This has the potential to gut half of the indictment against Trump and as you pointed out, have well over 300 individuals who have already been tried, convicted and sentenced. Some of them are going to want brand-new trials, others are going to want an immediate termination of their sensing.
N. Rodgers: Some will want money. Some will sue.
J. Aughenbaugh: Some will sue.
N. Rodgers: But they'd have to show that they were prosecuted in bad faith, which they won't be able to show. They probably won't end up with money, but it will go on. This will live on yet more time this January 6th.
J. Aughenbaugh: Again, if it sounds like Nia and I listeners in these summer Scotus episodes have been beating up on the media, it's not our intent. But this is another example where the media, has been following a particular narrative and the way they've treated this case really disappointed me. There were a fair number of law professors and lawyers who were skeptical of federal prosecutors using the Enron Law to charge those involved in the January 6th, 2021 riot, protest, insurrection.
N. Rodgers: Right. What they should have been charged with in most instances is trespassing.
J. Aughenbaugh: Yes.
N. Rodgers: They went into areas, if you went into an area of the Capitol that is not open to the public. For instance, Nancy Pelosi's office gets you big dumb boots off her desk, that's trespassing.
J. Aughenbaugh: Then if you broke furniture.
N. Rodgers: That's vandalism.
J. Aughenbaugh: That's vandalism. Those are things that are well recognized in law that you could have been easily charged with.
N. Rodgers: Exactly. Nobody has to go for some crazy out there law. If you broke windows to get into the building, you committed vandalism. You had broken and entered and those are both crimes recognized by pretty much anyone everywhere.
J. Aughenbaugh: That's your basic BNE, breaking and entering. Pretty much every government jurisdiction in the world says, that's bad.
N. Rodgers: You can't do that. No. It's going to cost you. You're going to be fined, this amount of money and blah. But this extraordinary I don't know. What the prosecutors are trying to do is send a message.
J. Aughenbaugh: Yes.
N. Rodgers: But they use the wrong law to do it.
J. Aughenbaugh: Do it. That's right.
N. Rodgers: That's what the court has said and I don't know that it's the end of the world. I think that if you had prosecuted people with unarguable things, like dude, I watched you break a window in the Capitol building. We have you on camera doing that. That's clearly BNE.
J. Aughenbaugh: When you committed physical harm against a Capitol police officer.
N. Rodgers: It's assault.
J. Aughenbaugh: That's assault and if you did it with what could be considered a deadly weapon, then you should have been charged with that, and I had no problem with any of that.
N. Rodgers: Or intent to harm.
J. Aughenbaugh: Yeah.
N. Rodgers: But me walking around just looking and walking, I don't know. Anyway.
J. Aughenbaugh: The next one is the biggie.
N. Rodgers: This is the biggie and I owe Aughie a cup of coffee over this because I swore that it would be released at the end of the day, and it was not. It was released in the morning like he said it was going to be. I was like, no, they're going to throw it out the window and out of town. I owe him a pot of coffee. I will make it good at some point.
J. Aughenbaugh: I'm actually willing to go ahead and forgive what you think is your debt, because I think both of us got it wrong. You said it was going to be released on Friday afternoon. I said it was going to be released on Friday morning. We were both wrong, it didn't get released until Monday morning.
N. Rodgers: But he did come out in the morning. I thought they'd fling it out the door as their last thing that they did and then run away because it is Trump leaving the United States.
J. Aughenbaugh: What was at issue here was special counsel Jack Smith, prosecuting Trump for his role, once again, in the January 6th, 2021 Capitol rights. In particular, Trump's challenge to that prosecution. Former President Trump claimed in a motion before his trial has even begun that he could not be tried because presidents have absolute immunity.
N. Rodgers: Richard Nixon called and he would like to discuss with you absolute immunity. Because Richard Nixon believed that, too. If the president does it, it's not wrong and everything that the president does is presidential. That Nixon view point.
J. Aughenbaugh: Yes.
N. Rodgers: Trump has followed along with that?
J. Aughenbaugh: Yes, and of all the presidents to emulate. But nevertheless, that's for a different podcast episode. The ruling by the Supreme Court was, well, it depends, and the vote was 63 conservatives versus liberals. Again, this is a point the media has largely ignored. When the case was argued in front of the Supreme Court, the Supreme Court, the justices were given basically two choices. One, Trump saying he had absolute immunity and then special counsel Smith's lawyer argued presidents should receive no immunity.
N. Rodgers: That was never going to fly with this court.
J. Aughenbaugh: Was never going to fly with this court. I don't think it would fly with any court, but particularly this one, because what the Supreme Court held was because of separation of powers, Presidential power entitles former presidents absolute immunity from criminal prosecution for actions that are within their conclusive and preclusive constitutional authority. Basically, what Roberts created, and he had five justices join him on this is a three tiered immunity structure for presidents. Presidents receive absolute immunity and can never be, if you will, prosecuted, when they are exercising their core constitutional duties, prerogatives, obligations, authority, etc.
N. Rodgers: For instance, it's Commander-in-Chief.
J. Aughenbaugh: Yes.
N. Rodgers: The president orders an invasion of I don't know. Pick a country that can't fight back, whatever. Canada preside orders.
J. Aughenbaugh: We like to use the example of Canada. We've used that example.
N. Rodgers: That is true the President looks over the vast ice that is Canada and says, I long to have an ice flow of my own and since I can't have Greenland because I tried to buy it, nobody would sell it to me, we're just going to take Canada. As the Commander-in-Chief, he can order that.
J. Aughenbaugh: Yes and after their term.
N. Rodgers: That's a presidential act.
J. Aughenbaugh: After their term in office is over, the next president cannot have the attorney general sue former president Nia Rogers for invading Canada.
N. Rodgers: I did it while I was president.
J. Aughenbaugh: Yes.
N. Rodgers: I did it in my act as a president like in my act as Commander-in-Chief.
J. Aughenbaugh: That's right. Now, the second tier is presumptive, if you will, immunity, meaning that it should be presumed that there are outer limits of being president and that federal court should assume that presidents are immune. Let's just say, for instance, a president is interpreting a law passed by Congress. After the fact, the American public hates it, Congress doesn't like it. Congress can't ask the next attorney general to go ahead and bring prosecution because a president interpreted a law in a way that neither they nor the public liked.
N. Rodgers: For instance, while I am president, Congress passes a law that says, we would like the acquisition of fresh water. In as maximal amount as possible. I do not get to go to Canada and divert a river and be sued for it later because they didn't like the way I did it. You told me you wanted clean water. I went to Canada, diverted a river. I got you some clean water. I don't know what you're complaining about.
J. Aughenbaugh: Let's think about, for instance, a number of Southwest states say, we're running out of water. Hey, there is a really nice reservoir in Mexico and the president says, hey, I'm going to invade Mexico to get that nice reservoir.
N. Rodgers: Only that part of Mexico. I'm not taking the whole thing. I don't want to be all up in people's Grill. I just want the water.
J. Aughenbaugh: Yes.
N. Rodgers: Then the next president says, you ruined our relationship with Mexico, and now we're all fighting and stuff, and we're going to sue you slash punish you. You can't because you told me you wanted water.
J. Aughenbaugh: Yes. The third tier is what Robert's called a president's unofficial acts and for those, there's no immunity.
N. Rodgers: I don't invade Canada. I just kidnap Trudeau. Hold a gun to his head and make him do things that I want him to do. There is no law that would protect me. Under any circumstance from extradition, fright from kidnapping him and bringing him here and making him do things. There is no law for that. There is no law that would allow me to do that as a president. There's no.
J. Aughenbaugh: Again, I really struggle with how the media is portraying this decision.
N. Rodgers: It the end of the administrative state, Trump won everything. He has total immunity. That's how the media is currently portraying it and Aughie and I are like no, he doesn't.
J. Aughenbaugh: Did you read the opinion? Because if you read the opinion, and I will even challenge some of my fellow constitutional law scholars on this. All the Roberts administration did was largely acknowledge what the Supreme Court has been saying for years and what's happened for decades in regards to presidential power. Now, I might not like the increase in presidential power. In fact, both Nia and I on this podcast have about it, have openly questioned the office of president, no matter who occupies it, whether it be bind, Trump, Obama. Lincoln, FDR. It doesn't matter. I don't care if they use it for good or for bad. It's really dangerous to give presidents a whole bunch of power.
N. Rodgers: Which Congress keeps doing because they don't like to do hard things. It's too hard. Let's have the president do it.
J. Aughenbaugh: In foreign affairs, even the Supreme Court gets on board and says, hey, we're not experts on foreign affairs. We'll defer to the president. Really? Cheques and balances only applies domestically. I digress. That's my rant. But at the end of the day, all Roberts did was basically acknowledge what had already been going on for decades, which is that Presidents, when they can point to a constitutional grant of authority to do something, you can't sue them once they get out of office.
N. Rodgers: You can't sue them in office or out of office.
J. Aughenbaugh: Because if you allow that to happen, it would affect presidential decision making.
N. Rodgers: It would paralyze presidents. It would paralyze them.
J. Aughenbaugh: Yes.
N. Rodgers: Should I do this because could I be sued later?
J. Aughenbaugh: Yes.
N. Rodgers: Especially in crisis situations, is not a question you want the president to be asked?
J. Aughenbaugh: No.
N. Rodgers: You want the president to be going with the best expert advice slash, best instinct, slash, whatever it is that they're using. To make a decision and stick with it. No. A side note, which Aughie and I would like for listeners to think about what this immunity question is. It may appear that Trump has won this question. Yes. I would give Trump a partial win on this question.
J. Aughenbaugh: It's a partial win.
N. Rodgers: It's not a partial win for Trump. It's a partial win for the Presidency. Trump can only be president one more time. There will be other people who will be affected by this. This idea that somehow this was this huge win for Trump. I'm like, no. It wasn't in the sense that, for instance. Going back to our Enron example, if Trump had been shredding documents down at Mar Lago. There is no residential allowance for that. Those documents don't belong to the president, they belong to the people of the United States.
J. Aughenbaugh: Yes.
N. Rodgers: You don't get to just go shred stuff when you don't like the way it makes you look or whatever. That would fall outside of immunity. It's not presidential. It's an unofficial act. Now, what I feel bad for is the court that's going to have to deal with the January 6th question of, was Donald Trump acting in his office as president when he was giving that speech, or was he acting as a candidate, which is an unofficial act, and can be held responsible and that ball of yarn has so many knots in it, 1,000 kittens could not undo it. It's just going to be a unbelievable mess for the lower court.
J. Aughenbaugh: I would not want to be Federal District Court Judge checking for any amount of money.
J. Aughenbaugh: Because the Supreme Court basically sent the case, remanded the case. That's the expression that is used, remanded the case to the District Court to decide what of Trump's indicted behavior flows from his official acts versus his unofficial. Roberts made it very clear. Neither the court nor the special council can explore Trump's motives, any presidential motives. Because again, motives could be complex as to why you might do something as a president. You might do something as a president because you want to court favors with certain voters. You might do it because you want to go ahead and keep a particular country as an ally. You might do X because you don't want to upset Congress.
N. Rodgers: But Donald Trump will need to be careful declaring things official acts.
J. Aughenbaugh: Yes.
N. Rodgers: Because that's a whole different animal.
J. Aughenbaugh: Yes.
N. Rodgers: If what he's saying, if he comes back and says, as president, I started a riot, and it was an official act, then that opens the door to the next person who's president saying, Hey, apparently, you can start riots anytime you want to.
J. Aughenbaugh: Yes.
N. Rodgers: Or not start 'cause he didn't start, but encourage. Let's not give Donald Trump too much power here. He didn't start that. He may have encouraged what happened, but a lot of that was mob mentality. A group of people feeling very emotional, deciding to do something together. That is not unheard of. But it will be interesting to hear how presidents in the future.
J. Aughenbaugh: Yes.
N. Rodgers: Separate their acts.
J. Aughenbaugh: Because again, and this is what I've said to a couple of reporters who contacted me about this case. I said, we seem to be losing focus here because the Supreme Court's ruling is about the Office of President. Now, we're casting it in terms of Trump because Trump made the claim and Trump behavior that is being prosecuted. But we need to think about this no matter who might be president. If a particular president, like a Trump claims that I gave this speech, and it was part of my official duties to make sure that elections are fair. Well, that sets a precedent if it's accepted by a court for future presidents to make similar speeches.
N. Rodgers: They may be of a different party.
J. Aughenbaugh: A party. What's bizarre about all of this is, when Trump made that speech, my initial reaction was, he has no official role in regards to the counting of ballots because the counting of ballots is given to the states in the US Constitution. If he can convince a lower court that this speech is part of his official duties, even if it's out at the outer limit of his official duties, then it sets a precedent for other presidents. That's what we should be concerned about. It's not necessarily Trump per se, it's the fact that we now have a three-tiered system of immunity going forward, and if federal courts start ruling in favor of presidents, then the scope of that immunity gets much larger. That's what you should be worried about. Trump in and of itself or in and of himself, is only the mechanism to go ahead and rule on, as Roberts pointed out in his majority opinion, this was or is a novel question. Because even with Nixon. Nixon never claimed complete immunity. He claimed executive privilege. But even that court went ahead and said, executive privilege can be overcome by the needs of a criminal investigation. Likewise.
N. Rodgers: This idea that Donald Trump could walk out of the White House and shoot the first person he sees.
J. Aughenbaugh: No.
N. Rodgers: It's not presidential. There's no power given to the president to just randomly shoot people. That is not.
J. Aughenbaugh: Yes.
N. Rodgers: That would be considered his official duty. [inaudible] But it would be considered outside his official and therefore prosecutable. But the other thing that I would urge people who are reacting pretty wildly to this to keep in mind is previous presidents have done some things that they could have been prosecuted for.
J. Aughenbaugh: Yes.
N. Rodgers: If I mean, President Bush could have been prosecuted for invasion of Iraq when we found out there were no weapons of mass destruction.
J. Aughenbaugh: Yes.
N. Rodgers: President Obama could have been prosecuted for drone. He killed an American in another country with drone. He ordered he didn't do it himself, but he ordered that. You want to be careful about taking away any immunity. That's why Jack Smith was bonkers to say the president has no immunity. Because then anything the president does could be sued by someone.
J. Aughenbaugh: Yes. At that point, the fears of many that the United States would start looking like a third-world authoritarian regime that uses the courts to punish their political enemies once the political enemies are out of office, becomes, closer to reality. Again, there's a middle ground here in the middle ground.
N. Rodgers: Exactly.
J. Aughenbaugh: It is difficult to achieve. Again, if because there are other tools, and some of these tools, Train in presidents have become weakened over time. See, for instance, immunity, not immunity impeachment. But nevertheless, There are other ways to go ahead and punish a president for behavior you don't like.
N. Rodgers: Yes.
J. Aughenbaugh: Yes.
N. Rodgers: It's called voting. One of them is called voting.
J. Aughenbaugh: Or, you know, hey.
N. Rodgers: In the midterms, you can trash the president. Which is what happens in almost every mid-term. The president's party takes a beating. What is it?
J. Aughenbaugh: Shellacking.
N. Rodgers: Thank you. Takes shellacking. That's not an uncommon way to punish a president.
J. Aughenbaugh: Let's cite our source, Barack Obama.
N. Rodgers: President Obama in his first mid-term, said, Wow, we took a shellacking.
J. Aughenbaugh: Shellacking 2010. But here's the other thing.
N. Rodgers: He was not wrong.
J. Aughenbaugh: For our listeners who are hoping to see Trump on trial for his role or participation in January 6, 2021, the likelihood that that's going to occur before the November election now becomes, like, non-existent.
N. Rodgers: He will be under these indictments while the election season takes place.
J. Aughenbaugh: If the trial does not take place before November if he wins, it would not be shocking if he ordered the Justice Department to go to court and dismiss the charges. Now, the New York and Georgia cases can still go on because those are state cases. But even both of those cases might be changed because of the Supreme Court's ruling, which we could discuss in another podcast episode. But guys, the timeline here doesn't really work for the DC trial to happen before November.
N. Rodgers: Can I ask you though Aughie a question before we wrap up on this because I'm curious about. One of the things that has been, and people can't see me, but I'm using air quotes threatened by a potential second Donald Trump presidency is the persecution or the prosecution, I should say, of Joe Biden. Potential crimes. But does this have the effect of basically padding or preventing that from happening?
J. Aughenbaugh: This ruling in Trump versus the United States effectively protects Joe Biden from any prosecution that the Trump administration might want to exercise. Because even though there have been a number of policy initiatives by the Biden administration that I didn't think flowed from law or the constitution. He could very plausibly argue they were part of my core constitutional legal, if you will, authority. They were part of his official acts.
N. Rodgers: The likelihood that he will end up being prosecuted and VVD was prosecuted. Can we take a tiny tangent brief?
J. Aughenbaugh: Go ahead.
N. Rodgers: Let's just say for the sake of argument, and I don't believe this will happen, but let's say for the sake of argument that Trump is found responsible. Would he go to jail? Can we keep a president safe in a jail or a former because he wouldn't be president? Former well, I might be president, but either a president or a former president, or would the courts find some way to slash?
J. Aughenbaugh: He would.
N. Rodgers: Limit travel. You know what I mean?
J. Aughenbaugh: It would require special measures. Quite obviously, he could not be put in the general population. It would be in a minimum security facility by federal law. He would get secret service protection.
N. Rodgers: Which is basically them going to prison.
J. Aughenbaugh: Yes.
N. Rodgers: That would suck for that job.
J. Aughenbaugh: But I mean.
N. Rodgers: But you sign up for stuff like that. I think it is very unlikely that even if these prosecutions go forward and even if these prosecutions are successful, that Donald Trump would serve time in a prison.
J. Aughenbaugh: No, I would be shocked.
N. Rodgers: I just don't know how we would do that safely and how we would. The other thing too, is he is of an age. A lot of people at that age are not sentenced to prison because they don't unless they are hard criminals. They are not sentenced to prison because they are not, that is not useful to what needs to happen. But I don't know, man, I wonder what Martha Sewart thinks about that. Anyway, thank you, Aughie. I'm frustrated, by the way the media has portrayed this rather breathlessly, and also as a complete Trump win and a complete loss for Jack Smith, and I'm like, I don't think that's what this was. Jack Smith now is being forced to make a reasonable case for these being unofficial acts. I'm not sure that that's a bad thing. I don't know that anytime that we make the state work a little harder to prosecute someone.
J. Aughenbaugh: I don't think that. Because again, I'm sorry, listeners if I'm repeating myself, but I have long said and I've said it on this podcast that of all the cases being brought against former President Trump, the one that had its firmest foundation in well existing law is the Florida case in regards to his mishandling of classified documents that he should not have taken with him once he left office. That law has been in existence since the 1970s. It has been fairly and consistently applied since that time. We just so happen right now to have the former president, the most former president and the current president who have both violated that federal law, but that doesn't require, if you will, any broad novel interpretation of existing law.
N. Rodgers: Exactly.
J. Aughenbaugh: It doesn't call into mind presidential immunity, because once you leave office, those papers, as Nia you pointed out earlier in this podcast episode, are not yours.
N. Rodgers: Belong to me. Me the public, not me the president.
J. Aughenbaugh: The United States Congress has quite clearly said this. The federal courts have supported Congress's authority to pass such a law. That is the case. But even in that particular instance, it would be very unusual for a former president to go to jail if found guilty of violating that law. Because he wasn't doing it to go ahead and sell or trade those papers to other countries, it was a classic example of former President Trump's, bravado, ego, et cetera.
N. Rodgers: Showing off. He wanted to show them to dinner guests. Look what I have.
J. Aughenbaugh: Can you believe this? I was president, and I took this. Whatever motivations or whatever motivates him. But the argument that Trump could be prosecuted for January 6, I was just like, don't go there, because it's going to force the Supreme Court to issue a ruling that many of us don't like. I am uncomfortable with this. I'm uncomfortable with the court's ruling in Trump versus the United States. But I've also been uncomfortable with the expansion of the Office of President that we have seen, particularly since the early 1900s.
N. Rodgers: In the modern era.
J. Aughenbaugh: In the modern presidency. But this ruling didn't surprise me. Because again, it applies to the office not who occupies it.
N. Rodgers: Which is how it should be.
J. Aughenbaugh: Yes.
N. Rodgers: The Supremes have to think beyond the next eight years.
J. Aughenbaugh: Yes.
N. Rodgers: They have to think for the next hundred. The Supremes are thinking in long term when they make these rulings.
J. Aughenbaugh: But I am uncomfortable with it. But the way that's been portrayed in some quarters, I'm just like-
N. Rodgers: I'm uncomfortable with what I perceive to be a little bit of vagueness. That middle section of, we don't know whether or sorry, the third tier, whether this is an official or unofficial act, and somebody's going to have to decide that. But there's a part of me that's like, we'll make the state argue that it's an official act or that it's an unofficial act rather. Sorry, but it's an unofficial act and can be prosecuted.
J. Aughenbaugh: It can be prosecuted. Again, in this situation, the court showing some modesty doesn't give me as much concern simply because these are factual questions at that point. You offer a broad definition, and then you go ahead and say to the lower courts. Now, let's see how this works on the ground.
N. Rodgers: We'll see if they come back with another case at some point, and say, boy, did we not clarify that?
J. Aughenbaugh: Exactly.
N. Rodgers: I think this Court's doing a lot of kicking down the road, kicking cans down the road. Let's not deal with, I don't want to deal with the actual thing here, so I'm going to talk about standing or I don't want to deal with, I don't know.
J. Aughenbaugh: Again, you can split up this court into three sections, three different groups. The liberals who would like many of the presidents of the 1960s, '70s, somewhat 1980s maintained. Then you got Thomas, Alito and Gorsuch, who want to go much further or in some cases, just roll things back to the 1920s and the 1930s. But then you got Kavanaugh, Roberts, and Coney Barrett who are just like, maybe we shouldn't rule on every one of these disputes.
N. Rodgers: Don't we want to leave something for other courts later? Just the other thing, too, for Roberts, is he's such an institutionalist. He wants to make sure that the Supreme Court doesn't go down in flames cause they do too much too fast.
J. Aughenbaugh: Yes. But we'll talk more about that in our last episode, our next and last episode for our summer of Scotus 2024, where we look at the end of the term statistics and other observations. Nia, thank you, once again. Listeners, if you haven't picked up on this, I think Nia goes ahead and agrees to the summer of Scotus in part because she knows that it puts a huge smile on my face.
N. Rodgers: I do, and there's a lot of listeners who like it. They like you telling them what's going to matter and what's not about these different cases. I like that too. I learned a lot from you every time. Thank you.
J. Aughenbaugh: Thank you.
You've been listening to Civil Discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the Workshop for technical assistance. Music by Isaak Hopson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.