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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.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm good. We're back again for another in the newish, but maybe a little bit longerish than in the newish episode. If you don't talk, can't keep himself out of the news.
J. Aughenbaugh: I'm feeling in between. It's in between a short in the news episode versus one of our standard longer one hour long takes.
N. Rodgers: Before we get to that, how are you?
J. Aughenbaugh: I'm lovely, thank you.
N. Rodgers: I know that today we're recording this on Super Tuesday, and you have not only Super Tuesday results to deal with because you're a poly person and that's what you all live for. But you also have a visitor staying at your house all day today who normally goes to school, because the schools are being used for voting places. Because we haven't figured that out in this country. We send all our children home so that strangers can come into their schools and vote.
J. Aughenbaugh: Listeners, my 12 year old gets a day off and she slept in. She's wildly entertained by the fact that I'm working and she doesn't have to.
N. Rodgers: I would be entertained by that at 12 too, I have to admit. We're back because Donald Trump and the scouters are doing some interesting dance routines these days.
J. Aughenbaugh: My goodness, are they ever.
N. Rodgers: He's tangling with them left and right.
J. Aughenbaugh: As a person who doesn't like lawyers, and Trump has said this even before he became a politician, for somebody who doesn't like lawyers, he has to spend a lot of time every day with lawyers.
N. Rodgers: What's interesting, and I would like to comment on this before you get into the meat of this episode is Donald Trump, when he was president, was disparaging of a lot of the institutions of government. Wasn't a huge fan of the Congress, wasn't a huge fan of the agencies.
J. Aughenbaugh: Wasn't a fan of the courts. Because a federal court ruled against him, he would go ahead and say, Obama judges.
N. Rodgers: They changed me out of whatever [inaudible].
J. Aughenbaugh: Which led Chief Justice John Roberts to do the unusual where he actually commented, there aren't Obama judges, there aren't Republican judges, we're just just judges.
N. Rodgers: I love J. Rob. Not even secretly, I'm just openly, I love J. Robs. But I do think it's interesting that he abides by the Supreme Court decisions.
J. Aughenbaugh: Yes.
N. Rodgers: He respects the court enough, he respects the institution enough.
J. Aughenbaugh: Yeah. It's like one of the few government institutions that he will actually comply with.
N. Rodgers: Yeah, and that he generally speaking, doesn't hugely complain. He complains about everything. I'm sure he complains that airs should be easier to breathe because he is that kind of person. But he doesn't seem to take up with them in some way. Like he hasn't given them all nasty nicknames, you know what I mean?
J. Aughenbaugh: No.
N. Rodgers: He has a respect for them that I think would be interesting for people who really like him and who follow his politics to think about. That he does respect some of the institutions and one of the institutions, generally speaking, is the Supreme Court. I don't know if he's going to respect them after this.
J. Aughenbaugh: What Nia is talking about listeners is that the Supreme Court on Wednesday, February 28th, agreed to address a question that former President Donald Trump has posed in federal court. What we're talking about here is Trump has claimed that he is immuned from prosecution for any activities he performed while he was president.
N. Rodgers: Because if the President does it, it's not illegal.
J. Aughenbaugh: That's correct.
N. Rodgers: That didn't work out for Richard Nixon, all that laws. I'm not sure that I would vote.
J. Aughenbaugh: This motion that the Trump attorneys have made arose in the case where Trump was indicted by Special counsel Jack Smith in August of last year. For Trump's role in the January 6, 2021 attack riot, some would say insurrection at the US Capital.
N. Rodgers: But this is not a question of whether Donald Trump is an insurrectionist or not.
J. Aughenbaugh: No.
N. Rodgers: That's a separate issue. This is a question of whether he attempted to overturn the results of the election.
J. Aughenbaugh: To date, Donald Trump has not been charged with committing an insurrection. None of the federal or state cases against him have made that claim.
N. Rodgers: He inflicted in 91 charges, that it'd be in there somewhere.
J. Aughenbaugh: Well, in this particular case, there were four charges in the indictment and all of them were related to obstruction. He tried to obstruct an official proceeding. He tried to obstruct an official document. He conspired to commit obstruction, but he's never been charged as an insurrectionist per federal law. But that's taken us away from what the Supreme Court agreed to address. The District Court judge in this case, Tanya Chutkan, set a trial date for March 24th, but in early February she threw that date out and indicated she would hold off on having the trial until this question of Trump's immunity from prosecution was settled. Now, on February 6th, the DC Circuit Court of Appeals, in a unanimous three judge opinion, ruled against Trump. They went ahead and said that he could be prosecuted but they stayed the case, the trial, so that Trump could decide whether or not to appeal to the Supreme Court. Trump did, and the Supreme Court took a couple weeks, but the Supreme Court eventually decided to take the case. The question, and I think I put it in my notes. Do you recall where I put it in my notes? Yeah, here we go. The Justices agreed to decide whether and to what extent a former President is immune from prosecution for conduct that allegedly involves his official acts during his time in office. Because Trump's claim is when I went ahead and gave my speech on January 6, 2021, I was encouraging the American public to challenge and be skeptical of the election results. As president, I'm supposed to make sure that there was a free and fair election. That's part of his claim. He said, so how's that unrelated to my office as president? Should I not be concerned as president that we have free and fair elections in the United States? I'm sorry. I tried to get through that without laughing, but I failed, and I apologize listeners because I try to go ahead and be, shall we say, honest in my description of what is claimed by people or what's claimed in documents, et cetera. The Court has scheduled oral arguments on April 22. Now Nia, this is a very compressed time frame for the Supreme Court to hear a case.
N. Rodgers: Because the lawyers have to prep it in under a month. By the lawyers, I mean the Supreme Court bar lawyers.
J. Aughenbaugh: Trump's lawyers get three weeks, so they got three weeks from February 28. Then Jack Smith who is the respondent, gets three weeks to submit his written brief. Then that basically gives the Justices two weeks, or about a week and a half, to read through all the written briefs and be prepared for the oral arguments on April 22. That's a very compressed time frame.
N. Rodgers: They could to be dropping everything else they've been working on to deal with this.
J. Aughenbaugh: Well, let's face it. As long time listeners to this podcast knows, when we get further into the spring of any Supreme Court term.
N. Rodgers: [inaudible] they get senior fever, they get senioritis.
J. Aughenbaugh: The tough cases are still being written.
N. Rodgers: Which is, they should do those up front. But they want to get done and they have the hardest part to do.
J. Aughenbaugh: This is a difficult issue. There's no getting around it. There's nothing in the US Constitution that would support Trump's claim. Then again, there's nothing in the US Constitution that's against Trump's claim. We take it as an article of faith in the United States that no person, not even the president, is above the law. What we usually point to is the fact that the president can be impeached, found guilty and removed from office. Which Trump has said, ''Well, they tried to impeach me twice. Once specifically because of my involvement in the January 6th, 2021 capital events, and they never found me guilty. How can they prosecute me?''
N. Rodgers: But what someone should explain to Donald Trump, if that is his question, is that the Congress is separate from the special investigator which was doing a separate investigation, and he just proved his point by saying, ''I was subjected to impeachment, therefore, I was subjected to a legal proceeding therefore, I'm not above the law.'' You can not have that both ways.
J. Aughenbaugh: Nia, what you're pointing to is separation of powers. Impeachment is a legislative act or process. The charges against Trump brought by special counsel Smith is a judicial, if you will act or function.
N. Rodgers: Because Jack Smith works for the Department of Justice, doesn't he?
J. Aughenbaugh: Yeah. But the case is where? In the judicial branch. This is separation of powers 101. Impeachment is a function that a power or authority belongs to the legislative branch.
N. Rodgers: Nobody else can impeach Donald Trump. Only the House and the Senate.
J. Aughenbaugh: Yes.
N. Rodgers: Can impeach Donald Trump. Anybody else can just sue him which is [inaudible].
J. Aughenbaugh: When the executive branch enforces a law, that's article two, that's the executive branch. But a federal court can go ahead and dismiss charges, agree to take them, and have a trial. That's completely judicial. Where this gets weird.
N. Rodgers: Because it's not weird already.
J. Aughenbaugh: Beyond the constitutional, and by the way listeners, we could have an entire separate issue about presidential immunity. Though interestingly enough, most constitutional law scholars. In general, who support the Office of President, no matter who occupies it will go ahead and say that no president has complete immunity.
N. Rodgers: The president is not an authoritarian dictator. Whatever phrase, whatever word Dr. [inaudible] would use to refer to this person, he is not that. He is the President of the United States and there are still standards to be held to.
J. Aughenbaugh: Even though in the early '80s, in the Nixon versus Fitzgerald case, the Supreme Court suggested that certain executive branch positions are policy discretionary positions and therefore receive, if you will, heightened immunity. Even that court ruling never said the president has full immunity. What the court, I think in taking this case is going to try to explore, is to provide some guidance to the lower courts as to the extent presidents do have immunity.
N. Rodgers: They have some level of immunity. They just don't have complete immunity.
J. Aughenbaugh: Because the DC circuit ruling Nia and listeners basically suggested that presidents have no immunity. Well, if that's the case. First of all, what person would ever run for the office of the president?
N. Rodgers: Exactly.
J. Aughenbaugh: Then second, what president in their right mind would do anything risk taking in the office, because they could potentially be sued even after they've been president.
N. Rodgers: Let's assume for just a brief moment that under your presidency, under the presidency of John Aughenbaugh, you use a drone to eliminate someone. If you don't have immunity for that, their family could then sue you for murder. Potentially a court somewhere could indict you for murder.
J. Aughenbaugh: You're talking about the Justice Department of a future president bringing charges against you. Where would this end?
N. Rodgers: I'm with you and I'm with the Court if that's the way they go, that there has to be some level of immunity as president. That the basic doing of the office protects you in some way. By the same token, if you are president of the United States and you are a pedophile, that is not part of the presidency, and you should not be immune from prosecution. You have committed heinous acts against children. You need to be punished for that. That'll be an interesting talk about tough. How do you think it's going to go?
J. Aughenbaugh: Well, what I'm going to focus on next, Nia, is the fact that once the court said it was going to take the case, almost immediately the court got lamb basted by liberals for contributing to Trump's effort to delay this trial until after the election in November. I'm going to lay out a couple scenarios. The court hears oral arguments the third week of April. The earliest we would probably see a decision from the Supreme Court and I'm saying if they worked overtime on this and there was pretty much collective agreement. It's going to take them easily 3 to 4 weeks, May at the earliest. But then more than likely what's going to happen is the Court won't rule until June or late June, early July. Because Nia, as you pointed out a few moments ago, the Justices don't like to be working once the calendar turns to July. They get really antsy.
N. Rodgers: They get stir crazy. Washington DC stir crazy. They want you out of that place for a little while.
J. Aughenbaugh: If the court rules against Trump and denies his immunity claim, the trial won't take place until August or September because the trial court judge has to give both parties time to prepare for the trial. Remember, she had set a trial date for March and then suspended that just to go ahead and focus on Trump's claim that he's immune.
N. Rodgers: Because if the court finds him immune, her case is mute?
J. Aughenbaugh: Smith's case is mute. There's no trial.
N. Rodgers: It's all done, go home.
J. Aughenbaugh: That's what the lawyers have been focusing on. They have not been focusing on the actual trial, they've been focusing on this particular motion. Think about it.
N. Rodgers: They want to write the most persuasive thing in the world that they can to the Supreme Court to get court to say, '' If he's immune, move on.''
J. Aughenbaugh: In this scenario you're talking about a trial that would start in late August, early September. That's just a couple months before the election. In this trial isn't going to be.
N. Rodgers: I was going to say, you know what that is. That's the busy season for politicians.
J. Aughenbaugh: Yes. This trial isn't going to be a short one, right?
N. Rodgers: Yeah.
J. Aughenbaugh: I mean, we're talking about potentially, 25-30 different witnesses.
N. Rodgers: The high likelihood that Donald Trump won want to be in the court room everyday.
J. Aughenbaugh: That's right.
N. Rodgers: Because there's some real big questions to be answered here in this court case.
J. Aughenbaugh: Realistically, Trump could argue scenario too, that after the Supreme Court decides in late June, early July, that there are good reasons to postpone the trial until after the election. Because you can't ask a major party's nominee for President to suspend their election activities. They can actually help with their defense in a criminal case because if he's found guilty potentially, he could spend multiple years in jail.
N. Rodgers: He won't. But he could.
J. Aughenbaugh: He could, right?
N. Rodgers: Right.
J. Aughenbaugh: The Liberals are like the Supreme Court. Taking this case, is contributing to Trump's effort to get this trial delayed. Because if the trial is delayed until after the election, if Trump wins the election, Trump could go ahead and order his Justice Department to dismiss the charges law.
N. Rodgers: Case done.
J. Aughenbaugh: Case done.
N. Rodgers: That's not a dictatorship.
J. Aughenbaugh: On the other hand, I would remind listeners, that historically, when trials are scheduled, is supposed to be four. The defense, or when they're scheduled, is supposed to allow the defense adequate time to prepare. Now, mind you. The activities in question occurred on January 6, 2021. Trump was not indicted until the fall of 2023. Who's been pushing for this trial to occur quickly? Jack Smith. Smith wanted to skip the DC Circuit Court of Appeals and go directly to the US Supreme Court on the immunity charge, because he said time was of the essence. Now, the Supreme Court rejected that and told him he had to go through the DC Circuit Court of Appeals, which meant there was a month lost right there. The other thing to take into consideration listeners, and I'm not coming down on either side on this, I just want to throw this out, per Justice Department rules. The Justice Department should not bring a case which might affect an election that's Justice Department rules. Basically what Smith is doing here, and he's been really KG, he's never come out and said this Nia, in open court or in any of the written briefs. Smith can't say why he wants to rush this case, he just can't say it. Because if he says it, then he will quite clearly be violating Justice Department rules in regards to the timing of bringing a prosecution against a potential candidate. These are longstanding Justice Department rules. They've been in existence for decades, the Justice Department doesn't do politics. Well, you can't say you're not doing politics when you want to go ahead and speed up the process because you want it to occur before an election. I'm really torn on this. The other thing is the Court expedited the matter. I mean, let's face it, you and I've talked about the Supreme Court's processes. The Supreme Court never does things quickly. They are in effect potentially taking and deciding this case in three to four months.
N. Rodgers: Which for them is a land speed record.
J. Aughenbaugh: I mean, I have to my recollection, the only three times the Supreme Court has acted more quickly was Bush versus Gore, the 2000 presidential election. The main reason why they did things so quickly is that there's a federal law that says the submission of electoral college votes from each state has to occur in early December. If they didn't decide, potentially, they would be allowing the state of Florida to break federal law. That's one. The other one was Nixon versus the United States in regards to the Watergate Tapes case. But there Nixon had never been indicted. Nixon had a threat, but he had, you'd been indicted, theoretically. What's so different about this case is Trump has already been indicted at that point, historically, in the criminal justice system. The timing of hearings. Is to be for the benefit of whom? The defense.
N. Rodgers: Why do we do it that way? Because theoretically, the defense has less material, less staff, less everything, than the government has.
J. Aughenbaugh: Yes.
N. Rodgers: The benefit goes to the defense even though in this particular instance, the defendant is a wealthy individual who could hire a battery of lawyer. Well, I don't know if he could at this point because no issues.
J. Aughenbaugh: His finances have taken.
N. Rodgers: His finances have taken a bit of a hit lately. But theoretically, the state will always have more power and more resources than the individual. Those rights accrue to the individual in an attempt to equalize that power relationship. Is that correct?
J. Aughenbaugh: Yes.
N. Rodgers: That's, I don't know, I have all feelings about this Aughie. I don't know what to do with all of my feelings. I mean, there's part of me that's like no. This question has to be answered before any other question can be answered. Because if the President, and I don't mean President Trump, former President Trump, I mean any President, if any President is immune from prosecution for anything, then that is not an office that we should be having anyone in. We should just have a vacancy in the presidency. If you can do whatever you want to do and not be held accountable to the law. I have always believed that, that phrase what no man is above the law, the laws don't matter. If there are people who can't be held accountable to them, you might as well not have laws. But then there's another part of me that's like as much as I am not a huge fan of the former President, he deserves a fair trial. He deserves a fair hearing, because everybody deserves that. If we don't give it to him because we don't like him, or we don't like what he says publicly or whatever, then that system is crap. We don't clear, we don't believe it. What we need, I mean, he has to be treated like every other Defendant, and he has to be given all of the opportunities to defend himself fairly and justly, and he has to be assumed innocent until proven guilty. It's up to the State to prove that.
J. Aughenbaugh: Yeah. What you just said there at the end is what, I tend to emphasize with my students. You know, guys, the fourth, fifth, sixth, and eighth amendments are designed, to make it difficult for the state to get a conviction. Due process of law means, the defendant is guaranteed a process.
N. Rodgers: That's likable and unlikable defendance.
J. Aughenbaugh: That's right.
N. Rodgers: Harvey Weinstein deserved to have, and I'm not equating Donald Trump and Harvey Weinstein because they are not, same category of humans.
J. Aughenbaugh: Just pick your most despicable criminal defendant. Okay?
N. Rodgers: Right. That person still deserves a fair hearing.
J. Aughenbaugh: The same due process as your most sympathetic.
N. Rodgers: Exactly.
J. Aughenbaugh: Criminal defendant.
N. Rodgers: Because if we do it based on criminals likableness. That's awfully dangerous game to play. This idea of well, but that person's so nice. No.
J. Aughenbaugh: Yes.
N. Rodgers: Nobody knew Jeffrey Dahmer was eating people in his apartment, because he seemed like a nice guy.
J. Aughenbaugh: He was a quiet, nice guy. That's what his neighbor said.
N. Rodgers: Until they were like, what's that smell?
J. Aughenbaugh: Yes. I'm divided here. Because, like you Nia, this idea of full presidential immunity strikes me as undemocratic.
N. Rodgers: That's correct.
J. Aughenbaugh: It runs counter to checks and balances. On the other hand, the court's going to have to take some time on this because that's a complicated issue. How do you parse the nuance so that going forward we just don't have the opposition party turning around criminal charges against former presidents because they don't like their policies?
N. Rodgers: Or their personality or somebody got peeved at a dinner party one night.
J. Aughenbaugh: There's already enough hyper partisanship in partisan retribution. Nia, you know this because you've heard me talk about this at length. In the current, if you will, the current context and environment of American politics, the political parties seem to be playing a game of, oh, I can top this or I can top that.
N. Rodgers: Somebody hold my beer.
J. Aughenbaugh: After a while, we need to have clear rules to where the parties basically understand, this is the line. Even if we want to cross it, we can't. But that's going to require the justices asking some really probing questions at oral arguments and actually debating amongst one another. I mean, there are some of the justices right now who are very pro executive branch authority. There are others who should be very pro defendant, where they bend over backwards based on their experience in their previous rulings to go ahead and give the benefit of the doubt to a defendant. Well, in this case, the defendant is the former president that you may not have liked all that much.
N. Rodgers: But you may find, I think that there will be some strange bad fellows in the concurrences and dissents of whatever they decide. I think it will be like, wait, why are those two people voting together? The reason will be exactly that, that one of them is coming at it from presidents have enormous immunity and the other is coming at it from defendants have enormous rights and they will end up on the same side for whatever reason.
J. Aughenbaugh: But that's going to take time because they flesh this out in their opinions.
N. Rodgers: Well, not to put any pressure on you, J. Aughie, but you can't screw this one up.
J. Aughenbaugh: No.
N. Rodgers: This isn't going to get a take back. If you guys find that the president is immune, democracy is over. We really do have a larger problem at that point because then we would be depending on Congress to make laws to limit the president, which they will not do and there will be all kinds of issues. By the same token, if you treat the president as regular person, then you paralyze the office.
J. Aughenbaugh: Yes.
N. Rodgers: That person can't do certain things because they will be, like you said before, fearful of lawsuit, fearful of prosecution later. Not even prosecution at the moment, but prosecution 10 years down the road. Who would run for office at that point? That's bonkers.
J. Aughenbaugh: But that's bonkers. Are we going to go ahead and make changes to the criminal justice process and system simply because the defendant is the former president? Lawyers for those accused of crime make all kinds of arguments because they want to get evidence thrown out, they want to get testimony thrown out. They want to go ahead and you have the charges dropped completely. If we're going to go ahead and say that all of those rules, which are designed to protect criminal defendants apply except for when you are the former president, I'm sorry. That's not due process. Again, these are complex matters, and let's face it. No matter how the Supreme Court rules, partisans on both sides are going to be upset, partisans are going to be upset. The Supreme Court's legitimacy and reputation is going to take another hit. If it's going to take a hit, then if I'm one of the nine justices, I want to make sure that we go ahead and fully debate all of these issues.
N. Rodgers: I want to make it worth it. I want to make what we write worth the work actually from both sides. Because they're going to be crabby people on both sides who will find complaint with whatever they find. But I also want to urge listeners who may be rooting for this particular president to not have immunity because you don't like this president, that your guy will eventually be president. Maybe not this election, maybe the next election. But eventually whoever it is that you like will become president and when they are president, they will be held to the same standard. This standard needs to be written as neutrally and as carefully as possible. We want the justices to take their sweet time and get it right because it's going to be all the presidents going forward will be held to whatever the standard is and we don't want them to do it in any way politically so that it hurts one party and not the other. Because eventually that will come around to bite you in the butt. The other thing Aughie, that I would like to note for the record is, as I was reading through your notes and as I've been listening to you talk, there's a thing that we're missing here.
J. Aughenbaugh: What's that?
N. Rodgers: We need an ethics committee or an ethics board. The legislature has that for themselves. You can be turned in as a senator or as a Congressperson. You can be turned into the ethics committee in your respective house and they investigate you. We need an ethics board for the executive because the way that's working out right now is we're using the Supreme Court as the ethics board. I'm not sure that's a good idea considering that the Supreme Court only about 10 minutes ago came up with their own ethics rules, their own ethics statement.
J. Aughenbaugh: Well, technically you could go ahead and say the purpose of impeachment was to go ahead and make sure that members of the executive branch and the judicial branch were acting ethically. But the impeachment process has become such a joke that you can't even say that anymore.
N. Rodgers: Well, and that's another branch. I think there needs to be an investigative branch within.
J. Aughenbaugh: But I'm going to play devil's advocate.
N. Rodgers: Sure.
J. Aughenbaugh: The ethics committee for the United States Congress has been widely and historically criticized for taking it easy on the members.
N. Rodgers: Also you think that would happen in the executive, if they had an ethic? You'd put a point to somebody who really liked you would never find you ethically wanting?
J. Aughenbaugh: Or let's say the ethics board was comprised of former members of the executive branch. Or they start projecting down the road and they're like, well, if we say that the current president has violated this ethical norm.
N. Rodgers: Then what I want to do is, I'm going to be held to that same stand. The same way out of this.
J. Aughenbaugh: Well, we could flesh this out in another podcast episode. But it gets complicated.
N. Rodgers: It's very sticky and what's fascinating to me is that the Supreme's felt compelled to take it. They compelled to answer this question.
J. Aughenbaugh: There was not even a dissenting vote to take this case.
N. Rodgers: Really? All nine decided they would do it.
J. Aughenbaugh: Well, nobody wrote a dissenting opinion saying the court should not take this case.
N. Rodgers: Nobody has recused themselves or anything like that like I don't want to be involved in this crazy.
J. Aughenbaugh: They haven't even found a made up reason to go ahead and recuse themselves. This is one of those times where I would be hyper ethical. I would be like, maybe I went ahead and played golf with Special Counsel Smith, maybe I ran a road because he used to love to run road races. Maybe I ran the same road race. My ethics can be called into question. I'm out of here.
N. Rodgers: But the other thing is just as a side note aside from this question, but isn't this the thing that they live for at some levels that we can make a mark forever? This will be the Roberts Court decision that stands for the next 150 years or whatever about presidential immunity.
J. Aughenbaugh: Even if they're not concerned about their legacy, which if you're talking about John Roberts, I think most observers would say he is. But even if you're not, again, these are some of the brightest minds in the United States. They live for this intellectual challenge. That's why they got into the law. This is a seemingly intractable situation. How can we provide a solution? This is the meat of their meal, they can't wait to go ahead and pull out the steak knives. It's really too bad that it's Trump or really it's too bad it's special Counsel Smith because this is a really fascinating constitutional issue.
N. Rodgers: Which it is. You'd think that in 250 years we'd have answered it already.
J. Aughenbaugh: But we haven't.
N. Rodgers: As a nation, we are maturing enough that we're now starting to say, "Wait, is everything that the President does okay?" You're starting to ask questions about, can you imagine if presidential immunity did not extend to purchasing chunks of land to add it to the United States?
J. Aughenbaugh: When you had no legal authority to do so.
N. Rodgers: You just buy Louisiana, you just buy Alaska. You're just like, you can't do that.
J. Aughenbaugh: See Thomas Jefferson, or maybe it was easy to go ahead and say, we don't have to come up with any kinds of laws or ethical rules about immunity, when your first president was Washington. Come on now.
N. Rodgers: Who was beloved across such as the nation was.
J. Aughenbaugh: Even members of the opposition political party genuflected.
N. Rodgers: I like that guy. That guy is good.
J. Aughenbaugh: They genuflect and they kissed his ring when he walked into the room. Come on now. But this is where we are, 21st century America.
N. Rodgers: We've gotten presidents now that we're like, "I'm not kissing that nasty ring. Get away from me."
J. Aughenbaugh: Well, think about it. I'm choked in a previous podcast episode, and I know you and I have talked about it off recording. But theoretically, we could have yet another presidential candidate run for office in a jail, in a prison. Eugene Debs was the first one, I think in the 2020 presidential election. He was the Socialist Party nominee. He ran for office and he didn't get very many votes, but nevertheless, we had a presidential candidate in a prison cell.
N. Rodgers: Wasn't he arrested for sedition or something? It was something like that.
J. Aughenbaugh: It was sedition. Theoretically, we could have that happen again, if the Supreme Court acts fast enough, and the trial actually takes place.
N. Rodgers: There are some people in this country who would vote for a President Trump in jail over a President Biden not in jail.
J. Aughenbaugh: Yes.
N. Rodgers: That would be an interesting set of results, like what can the President do from jail?
J. Aughenbaugh: That's a really fascinating [inaudible] .
N. Rodgers: Or do you get home arrest? Do you get like White House arrest where, you have the little thingy on your ankle and those things now they make a noise when you go outside of the range that you're allowed to go, so the President shows up at Mar-a-Lago and his leg is going [inaudible] .
J. Aughenbaugh: For listeners who might be interested in exploring those scenarios. Political Science Professor Keith Whittington from Princeton, has recently published article in reason.com, where he goes ahead and lays out all the scenarios, and it's fascinating. Some of them are far fetched. If this goes a certain way, we could have a presidential candidate from a major political party.
N. Rodgers: We could have a president in prison, not just a presidential candidate, but an actual President from prison. There is no constitutional prohibition against serving from prison is there.
J. Aughenbaugh: No. Nia, you asked me that question last year. Out of the blue you went ahead and asked it and you're like, "Constitutional law scholar, riddle me this." I'm like, "There's no prohibition. There's nothing in the US Constitution that says you can't serve as President from a prison cell." I know that seems far-fetched, but again, if you're the framers, it's not like you're sitting around and saying, "So let's come up with the most bizarre hypothetical." Anyways, listeners again, the oral arguments will take place, I believe the third week of April.
N. Rodgers: We will so be back when they put out there.
J. Aughenbaugh: Yes, their opinions.
N. Rodgers: Their opinions, and it won't be one when they put out there multiple opinions. Not surprise me if there are eight of them.
J. Aughenbaugh: I'm easily seeing four or five minimum.
N. Rodgers: If they put out a per curiam, I will fall over, asked out state.
J. Aughenbaugh: But even with a per curiam there might be four or five concurring opinions.
N. Rodgers: It's true. You got it right, but here's where we messed up. I'm looking forward to that Aughie. We'll do that hopefully. Well, no, we'll have to do that before the break for the summer, because they will do it before the break for the summer.
J. Aughenbaugh: This will be a part of our Supreme Court wrap up.
N. Rodgers: [inaudible]
J. Aughenbaugh: That's what I'm projecting.
N. Rodgers: We're going to wait till August.
J. Aughenbaugh: Well, that wouldn't shock me as much as if they went ahead and said the first week of May. By the way, we cross that off from our to do list. Here's our opinion moving on.
N. Rodgers: Two weeks later. Although they're already researching it. They're already researching presidential powers and immunity and what all of that means and how. They're already doing that even before they get these briefs. They're going to read the briefs. I'm not saying they're not. But they're already doing background research so that they have a breadth of knowledge so that when they get those briefs they have things to work with.
J. Aughenbaugh: It would not shock me, Nia, if each of the Justices has assigned a clerk to produce.
N. Rodgers: To this question.
J. Aughenbaugh: Something like an 8-10 page research memorandum.
N. Rodgers: Tell me everything we know about presidential immunity, or what's been talked about or whatever.
J. Aughenbaugh: What federal court cases have said about it, what the White House Legal Counsel's Office has said, what the Congressional Research Service has produced on this. They'll ask for it all.
N. Rodgers: Can I just say as we're wrapping up, the person who should stay out of this is Joe Biden.
J. Aughenbaugh: Yes.
N. Rodgers: Joe Biden should not peep. He should not say a word. When they say, "What do you think about the Supreme Court?" He could say, "Wait, there's a Supreme Court?" He should not even acknowledge it. He should be like, "This has nothing to do with me, and I'm not going to comment." He doesn't need to make political hay out of this. He doesn't need to try to dig in on this. Don't do any of that before we see what the supreme say. In part because you don't want to be accused of influencing, but also in part because, this is so delicate right now, but if you poke any part of it, the whole thing is going to explode. But this is a big pack of C4, and he needs to leave it alone.
J. Aughenbaugh: If he's going to have a senior moment between now in the November [inaudible] . You should go ahead and say, "What did you ask?"
N. Rodgers: Who.
J. Aughenbaugh: If a reporter ask a question, he should go ahead and point to his ear. "I can't hear you. I'm 80 somewhat years old."
N. Rodgers: I don't know what you're talking about. No. Because, anything that he says will be seen as putting a finger on the scale.
J. Aughenbaugh: He's got to stay away from this. All right Nia, good chat.
N. Rodgers: Thanks Aughie. We'll be back with this question in a few months.
J. Aughenbaugh: Take care.
N. Rodgers: Bye.
J. Aughenbaugh: Bye.