Background reading:

• LISTEN: “Fifteen Minutes of Feminism: The Trump Indictments: What’s Happening in Georgia? (with Anthony Michael Kreis)”

Transcript:

0:00:05 Michele Goodwin:
Welcome to On The Issues with Michele Goodwin at Ms. Magazine. As you know, we’re a show that reports, rebels, and we tell it just like it is, and in this episode of 15 Minutes of Feminism, we are diving right in, and you know we count the time in our own feminist terms. In this episode, I’m joined by Anthony Michael Kreis. He is a professor at Georgia State University, really one of the leading thinkers on matters of election law, and he’s been covering, closely, the litigation that has involved the former president, Donald Trump, including the criminal investigations and prosecutions taking place in Georgia. You’ve heard him before on our series, where we are unpacking the Trump indictments.

In this episode, we’re turning to what’s happening in Washington DC, but as a backdrop, before we get there, let’s unpack a little bit about the Supreme Court’s recent decision involving the Colorado case. As you know, in Colorado, the former president had been taken off of the ballot because of his engagement in the January 6th insurrection, according to that state Supreme Court, and also its district court.

To give some background, the 14th Amendment Section 3 indicates that officers may not hold office if they have been involved in an insurrection or given aid or comfort to individuals who’ve attempted to insurrect against the United States. The district court in Colorado had ruled that, in fact, Donald Trump, based on factual evidence heard before the district court, that he had, in fact, engaged in an insurrection.

The question left open from the district court was whether the term officer applied to the United States President, or in this case, the former president. The case was then heard by the Colorado Supreme Court, and they ruled that a former president was, in fact, an office holder holding office within the context of the 14th Amendment Section 3.

The Trump legal team challenged that ruling, and the Supreme Court of the United States decided to take it up with great speed, and in a ruling that was just recently issued, the United States Supreme Court, in what appeared to be unanimous, but with a very strong concurrence learning in another direction of the three liberals on the court, Justices Kagan, Sotomayor, and Ketanji Brown Jackson revealed something else.

And in fact, now, with greater analysis from the Slate journalist Mark Joseph Stern, there appears that there was metadata that suggest that, for Justice Sotomayor, part of her opinion in this case was a dissent. Now, coming out of this case, one might say that the Chief Justice, John Roberts, wanted the appearance that the court was uniform in its understanding of the 14th Amendment Section 3 and the states attempting to regulate in this domain.

The court essentially said that it is not up to states to determine whether people running for federal office can be on the ballot or not. Of course, there are great gaps in the decision because that’s exactly what states do. States actually handle that enforcement power. For example, the Constitution has age requirements. It has citizenship requirements. Who takes care of that? Not Congress. Who takes care of that? Not agencies.

Who takes care of that? Before this case, certainly not the Supreme Court, but actually states, who take care of that enforcement element, and each state determines who gets to be on their ballot by the number of signatures that the individuals and their team amasses, along with other factors.

Needless to say, there’s tremendous division with regard to the Supreme Court’s decision. There are Americans who have already lost faith and confidence in the United States Supreme Court. In fact, the court has the lowest approval rating of any time since approval ratings have been measured. Americans are feeling as if the court engages in outcome determinativism, and what that basically means is that the court is selective. It’s already determined how it’s going to rule when it takes up cases. 

Years ago, that would’ve been unheard of, and for pundits to suggest that, or legal scholars, they would’ve been scoffed at, the idea being that the our United States Supreme Court does not see itself as a political branch of government, rather, the justices who are federally appointed are not beholden to any president or political party.

Well, in recent years, Americans have come to question that, and in part, that’s because the former president, Donald Trump, has made clear that he had an agenda with the judges and justices that he appointed. One might say that the justices perhaps bristle when the former president makes clear that he had an agenda coming into office and that he believes that the judges and justices that he has appointed have carried out his agenda.

Certainly, he’s pointed to that with regard to reproductive health rights and justice, with the gutting of Roe v. Wade, but there are other areas, too, in which the former president has made clear that his appointments were deeply political and that the people who are now serving, due to his nominations, understand what their role is to be.

Now, with that backdrop, there are Americans who wonder whether anything can be trusted that comes out of the United States Supreme Court, particularly now, given this ruling in the Colorado case, and then also by the Supreme Court deciding to take up the case as to whether the former president has absolute immunity when being charged with a crime, and this gets us to the DC Circuit Court of Appeals case, where a 3-judge panel ruled that the former president is not above the law, that he is no different than any other American citizen when it’s been alleged that he has committed a crime.

The defense team representing the former president has said that past presidents, present presidents, and presidents in the future all enjoy something called absolute immunity, which means that they are shielded from criminal prosecution, in the DC Circuit Court of Appeals case, it’s a case that is alleging that the former president sought to interfere with the 2020 presidential election.

That is a case that is now on hold, meaning that pre-trial matters were underway. The trial was due to begin in March. The Supreme Court has now said that they will hear oral arguments later in April, and basically, there’s nothing to be done with regard to the case until the Supreme Court hears the case and presumably issues its ruling, which likely would come before the end of this term, but depending upon when that is, it might be that the case doesn’t pick back up, if at all, until sometime in the late summer or early fall.

There’s much to unpack with this and so much more. As I mentioned, I’m joined by Anthony Michael Kreis in this episode, and here, we’re building on a prior conversation, one that involved the case in Georgia, where we talked about the hearings involving the prosecutor there and the controversy over whether the prosecutor should be taken off of the case, and the claims that there was some form of a conflict of interest.

That case has still not been resolved, though may be soon. Whether Fani Willis is taken off the case or a judge rules that there’s no conflict of interest here, because a conflict would mean that somehow she was entangled with the Trump defense team, or something like that. No matter which way that case goes, the former president is being prosecuted in the State of Georgia. There is audiotape evidence that is being used in that case.

And now, with more than 90 indictments, something that has no precedent in American history, with multiple litigations, New York, and Georgia, Washington DC, and other parts of the country, involving insurrection, involving interference, the litigation involves sexual assault, the E. Jean Carroll case. Now, there have been two very significant verdicts against the former president, and the payout is in the tens of millions now.

That’s not including the New York case involving fraud, not only with the former president, but also his business partners. He’s responsible now for paying out nearly half a billion dollars. With all that said, let’s turn to this interview with Professor Anthony Michael Kreis, as he helps to give us some sense of what’s coming next in at least one of the former president’s trials.

Michele Goodwin:
Professor Anthony Michael Kreis, thank you, so very much, for joining us. You have been a stalwart with us for our Trump indictment series, going back to last year, and covering the various matters that involve the former president, as now he faces more than 90 indictments and state, federal, civil suits, criminal lawsuit matters. We’ve been talking with you about Georgia and the Georgia RICO case, where there are more than 30 non-indicted co-conspirators. There are indicted conspirators that are being prosecuted, and of course, the former president is also being prosecuted.

And in that case, it’s about trying to interfere with the Georgia elections, including the former president being caught on audiotape, which the whole nation and world has heard, but there’s also the DC Circuit Court of Appeals case, as well, and I’d like for us to unravel that because that’s also been in the news lately. Can you level set a bit for our listeners, who have been absorbed in Georgia but now need to be focusing on DC, as well?

0:03:16 Anthony Michael Kreis:
Yeah. So, of course, we’re in kind of a complex stage of the litigation in DC, where things have been on hold for a while, and the reason for that is, of course, because, as the pre-trial process has gone forward, Donald Trump raised a motion that he is immune from prosecution as a matter of Article II powers, right? The presidency wraps him in this immunity for all the different acts that he ever took as president, and he claims that his actions leading up to January 6 were essentially presidential official acts, and therefore, a prosecution is not permitted under our constitutional system.

And Judge Chutkan, very ably, and I think thoroughly, debunked that notion in denying the idea of blanket presidential immunity, but of course, that was appealed, and so the DC Circuit had the case before them, and that was decided very recently, again, against Donald Trump, and held that the president is not categorically immune for acts that are deemed criminal, right, that the president has an obligation to faithfully execute the law and that the president can’t just willfully ignore the commands of Congress through federal criminal law.

And so, if you get prosecuted for violating the criminal law, it is because the president has essentially, you know, abdicated their duty to faithfully be, right, the chief law enforcement officer, essentially, of the United States, and so, now, that has been appealed to the Supreme Court, and we’ll have to see whether or not the Supreme Court decides to take that up, but the big issue, of course, is that as these appeals have been going forward, and the cases have been percolating through the federal system, Judge Chutkan has put everything on pause in the trial court.

And so, you know, while the court in the DC Circuit ruled fairly expeditiously, it took them just about a month to get this from oral argument into print, you know, every day that it takes the Supreme Court to wait and consider whether to take this, or what to do with this, or if they’re going to hear it, and if a decision gets rendered after, you know, during the summer, every day that that takes to finish is a day that Donald Trump is not being tried for these crimes, or alleged crimes.

And so, the real issue, I think, is, for most folks, is not whether or not the Supreme Court will uphold the DC Circuit’s ruling. I think most observers think they will, but the big question is how quickly can they get it done, because, at the end of the day, we were originally looking at a March trial in DC, and now, we’re probably thinking maybe, you know, maybe we’re looking at June, July, August, and there are collateral, right, issues there because there are other trials for which Donald Trump also has to be present. 

So, there’s a March 25 trial date set now for the criminal trial in New York for Donald Trump. So, that’ll take about six weeks, it’s assumed. So, right now, we’re thinking March, April, maybe early May, maybe a mid-to-late summer trial for the DC case that Jack Smith has brought as special counsel, but that then has a consequence for the Georgia case, and so, the Georgia case was originally slated for a goal trial date of August 2024, and now, we’re thinking maybe that won’t happen, and so, there’s a big question about timing and how this gums up not just this case but has consequences for other cases outside of it.

0:07:08 Michele Goodwin:
Well, let’s unpack this a little bit more because January 6 was so recent but yet with so much…I mean we’ve had the E. Jean Carroll case. There’s been Georgia, as you’ve mentioned. There’s Colorado. There’s being kicked off the ballot in Maine. There’s, very recently, in New York, the Trump Organization being found to have committed fraud and therefore no longer able to do business for a period of time in New York, along with a pretty hefty fine.

So, let’s remind our listeners what DC is actually about and some of the defenses that have been made, one of which you spoke to, which is that the former president’s legal team has said that he has what they’ve described as absolute immunity, and it is true that government officials can have qualified immunity in very narrow instances, absolute immunity, but that is providing some form of a shield for government officials as they are doing what is within the nature of their work, such that they do not come under civil penalty or criminal penalties when they’re just simply carrying out the duties of their office.

And his defense team said, well, presidents past, sitting, future presidents have this kind of immunity where they’re completely protected, that there are no penalties associated with doing what is their work, and as you mentioned, Judge Chutkan said that there’s no such thing that shields a president from liability associated with crimes, that there is no president that is above the law, essentially, in terms of a layperson’s translation, and that was challenged by his legal team. There were some pretty artful kinds of arguments and examples that were given with the defense team, which were really quite extraordinary. If you might offer some of that to our listeners.

0:09:22 Anthony Michael Kreis:

Yeah. The one that was really interesting was the idea that if a president is impeached for a particular act and the Senate acquits them that that also means that they’re immune from subsequent prosecution for the underlying act. Now, that’s really interesting because the Constitution, of course, says, very specifically, that if a person is convicted and removed from office for an impeachable act by the United States Senate that that does not render them immune for subsequent prosecution.

And that provision of the Constitution, I think, is meant to be very clear that two things are true, one, that unlike in England, the Senate, as a jury, doesn’t have the capacity to impose criminal-like sanctions on somebody for an impeachable offense. So, if Donald Trump, for example, had been convicted and removed for his conduct on January 6 in the second impeachment trial, the Senate couldn’t subsequently immediately say, okay, Donald Trump, and you go to prison for 10 years. 

That was the case in England for some time, and so, the Constitution was meant to expressly delineate that that process, that a criminal law hat was an inappropriate one for the United States Senate to wear, and so, the argument was essentially, right, that impeachment has this kind of interactive effect with the ability to prosecute somebody. Now, of course, one of the great examples, then, that one of the judges…

I think it was Judge Pan, brought up, was, you know, could Donald Trump, or a president generally, call up SEAL Team Six and say, hey, assassinate my political competitor, or my political enemy, or whoever, and so long as they essentially left office immediately before they could be impeached, convicted, and removed, then they wouldn’t suffer any criminal liability for that, and of course, that’s just a nonsensical position, but that’s essentially the theory that the…

0:11:31 Michele Goodwin:
That’s essentially the position, right, taken by the defense team? 

0:11:35 Anthony Michael Kreis:

And of course, they said, well, you know, no president would ever get away with that, and of course they would be convicted and removed, but again, right, if they immediately resigned upon the discovery of this, or if they left office before somebody realized it, then they would basically be immune to do whatever they wish, and that just simply can’t be.

0:11:56 Michele Goodwin:

So, what about the argument that, really, this was about free speech, this is about First Amendment, which protects an individual and their ability to freely speak, the ability to freely associate, which is what the president, former president, was doing on January 6. He was speaking. He was associating. He was assembling. All of these things are protected by the First Amendment. There may be some that are persuaded by that argument. What of that?

0:12:28 Anthony Michael Kreis:

Well, I think it’s important to acknowledge, first and foremost, that speech, on its own, is generally not a crime, with the rare exception, right, the rarest of exceptions, of inciting, you know, unlawful violence, right, and that incitement has very strict standards that are applied in order to protect political speech and still allow the criminalization in, right, a very narrow category of speech, right, that creates an imminent lawless violence.

But the idea that speech related to conduct is somehow off-limits is kind of absurd, right? We prosecute people all the time for things that are, you know, or speech that is attendant to their underlying crime. So, for example, you know, if you walk into a bank with a mask and a weapon, and you know, maybe you don’t say anything, and you just kind of like do your transaction, and you leave. Okay.

I don’t know if that’s a crime, per se, but you go in and you say stick them up, right, that speech is now part of, you know, what was your criminal…you know what was your intent? Was it criminal? Or were you just going to a Halloween parade, and you had to make a withdrawal on your way to the bank, right? There would be two different scenarios, one in which the speech is incredibly important in determining, right, the person’s motive, the effect on the listener, maybe what happened subsequently, right? Did they turn over money? Because you said, hey, I’m robbing you, right? And so, that’s a very similar thing.

0:14:10 Michele Goodwin:
And what did you do? I mean this is actually very interesting because you’re also speaking, then, to two things. The one is that the protection of free speech is not absolute, right? There are time, place, and manner restrictions that are placed on speech, but you’re also speaking back to evidence and what is the kind of evidence? What did January 6 look like, and that these are matters that will be taken into account, how long did it take for the former president to engage with calling security? 

Was he aware of what was actually taking shape as individuals were storming the Capitol, and violence was being committed, and people were being injured, harmed, and the deaths that were resulting, and the hours that it took before he took to some social media platform to express that people should calm themselves, but how much of that did he know, and all of those kinds of things would be unpacked once this trial is able to get underway.

0:15:14 Anthony Michael Kreis:

Right, I mean, and that’s the ironic part of this is that the speech that the lawyers are railing against being used in this indictment, you know, they’re doing it because they’re being zealous advocates, but it is, right, it’s inculpatory, but you can bet, right, that speech, when it’s exculpatory, they would immediately jump on it and say, right, this shows his intent, right? 

And so, right, that’s the kind of ironic part of it is that they will use exculpatory speech to show intent, right, or to show that the intent that Jack Smith thinks that Donald Trump had is incorrect and argue that before a jury, you know, but they think when it’s used on the flip side to show intent that that’s an impermissible criminalization of speech rather than evidence that illuminates the motivation behind the allegedly unlawful conduct.

0:16:05 Michele Goodwin:
And just for the benefit of our listeners, what do you mean by exculpatory?

0:16:14 Anthony Michael Kreis:

Yeah. So, of course, by exculpatory, I mean something that would reveal a person’s innocence. So, right, Donald Trump, for example, going onto social media and saying, right, disperse, be peaceful, don’t engage in violence, you know, that would be evidence to suggest that he did not want to incite a mob on January 6, although I think, right, you get the pushback that, well, no, that was done kind of forcibly and half-heartedly, and so, maybe that exculpatory evidence, or I should say “exculpatory” evidence, is actually more damning than it is, you know, suggesting that he’s, in fact, you know, he didn’t mean for that to occur.

0:16:51 Michele Goodwin:

There’s so much for us to be paying attention to and that we will continue to pay attention to as these various trials unfold, and as you mentioned, this is a case now that the Supreme Court will be weighing in on, and I guess I’ll conclude with asking you the following, for your commentary and take, the former president has been in the media, lately, speaking about the judges and the justices that he nominated and with somewhat of a heavy hand and almost seeming like an expectation that…a kind of pressure. 

What do you make of that? Is that just a kind of Trumpism that, you know, Trump is being Trump by making those kinds of statements? It’s curious that these kinds of statements where he’s reminding judges that he appointed them, that he nominated them, it’s coming at a time in which Americans have lost confidence, at least in our Supreme Court, where it has the lowest approval and trust rating since ratings have actually ever taken place. What do you make of the kind of culture, then, of the former president making these articulations?

0:18:17 Anthony Michael Kreis:

I think Donald Trump sees everything as transactional, and so, he assumes that if he gave you something, whatever it is, you know, of course, in this case, right, a judicial position, that you owe him, in return, in perpetuity. In some senses, I think it’ll backfire on him because it might make some of the justices who he appointed, right, Justice Barrett, Justice Kavanaugh, Justice Gorsuch, it may give them some pause from ruling in their favor, or in his favor, or at least maybe, you know, might give them pause in terms of how they frame the issue.

And you know, certainly, I think that there are a lot of terrible things about the Supreme Court I don’t like, and there’s, well, there’s probably no shortage of things, but for all of its institutional design flaws, the fact that we don’t subject justices to popular elections and the like means that they don’t have to do what Donald Trump says, and nobody can touch them for it, really.

And I think that that’s the key thing here is that, you know, we saw something very similar with the judge in the civil trial over E. Jean Carroll, where Donald Trump tried to browbeat Judge Kaplan, and essentially, you know, call Judge Kaplan every name in the book, but of course, that judge, sitting in a federal judiciary, doesn’t care what Donald Trump says and does because even if Donald Trump becomes president again in 2025, then there’s nothing that Donald Trump could do, right? The position is secure, and so, I think that’s the biggest thing here is that I’m not really sure what Donald Trump thinks he’s going to achieve here. 

I think he’s actually doing himself…again, I’m not really here to give Donald Trump advice, but he’s doing himself more harm by making these judges look like they are his puppets, because either it’ll undermine the legitimacy of any decision that they render, which is in his favor, or, right, it’ll give them pause to not rule so earnestly in his favor, and neither of those things are a position he really wants, but Donald Trump has never really done the thing that is most logical, at least in the legal system, from my perspective.

0:20:44 Michele Goodwin:
And with that, I want to thank you, again, for joining us. We really appreciate the insights and the expertise that you offer. Thank you so much.

0:20:54 Anthony Michael Kreis:
Thank you.

0:20:58 Michele Goodwin:

Guests and listeners, that’s it for today’s episode of On The Issues with Michele Goodwin at Ms. magazine. I want to thank each of you for tuning in for the full story and engaging with us. We hope you’ll join us again for our next episode, where you know we’ll be reporting, rebelling, and telling it just like it is. For more information about what we discussed today, head to Msmagazine.com and be sure to subscribe.

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This has been your host Michele Goodwin, reporting, rebelling, and telling it just like it is. On The Issues with Michele Goodwin is a Ms. Magazine joint production. Michele Goodwin and Kathy Spillar are our executive producers. Our producers for this episode are Roxy Szal, Oliver Haug, and also Allison Whelan. Our social media content producer is Sophia Panigrahi. The creative vision behind our work includes art and design by Brandi Phipps, Natalie Hadland, and music by Chris J. Lee.