Outside the Beltway

Podcast Recommendation Ahead Of Tomorrow’s Hearing On Presidential Immunity In DC

The Lawfare podcast offers a great primer on the eve of oral arguments

Matt Bernius · Monday, January 8, 2024 · 4 comments

Tomorrow, the DC Court of Appeals will hear oral arguments in the appeal of Judge Chutkin’s decision that Presidential Immunity does not apply to former President Trump’s actions around the 2020 election. The day promises to be a bit of a spectacle as the former President has announced his intention to attend the arguments in person.

If you have a spare 50 minutes, or less if you listen at a faster speed, the best way you can prepare to understand the arguments at play is to check out today’s Lawfare podcast. In this episode, a panel of Lawfare staff and other attorneys unpack a lot of the issues at play. These include:

• A historical/originalist and textual unpacking of why negatively defining Presidential criminal immunity doesn’t make sense.
• Why the claim of double jeopardy because of the impeachment acquittal will not fly (tl;dr: impeachment is not a criminal trial and the actual statute leaves room for the criminal prosecution of people convicted in impeachment trials).
• Why, if the court finds some amount of criminal immunity, it wouldn’t necessarily apply in this case–this also reminds us that said immunity would also not cover the “shooting someone on Fifth Avenue” scenario.
• A reminder that the DC Court of Appeals, in a decision signed by a Judge appointed by Trump, already found that the former president was acting outside his official capacities on January 6th (expect to hear the name “Blassingame” a lot).
• Perhaps most interestingly, the Court may even find that the Former President has no standing to bring this interlocutory (pre-trial) appeal because of a Supreme Court decision from 1989 authored by Justice Scalia.

The entire conversation is very accessible and moves at a brisk pace. Regardless of how you feel about the case, it’s a great opportunity to better understand the issues at hand and the legal arguments both sides will be making. The episode also does a great job of demonstrating how uphill a battle the Trump legal team faces in this trial as very little of the law appears to be on their side.

Listen to the Lawfare podcast.